Peter Casson -v- (1) Reverend Philip Hudson (2) Parochial Church Council of St Wilfrid’s Church Mereside [2017] EWCA Civ 125

In this judgment delivered by the Court of Appeal on 3 March 2017, the Court considered the potential liability of an occupier in relation to persons undertaking work on its premises.

Background

The appellant was a serving prisoner at HMP Kirkham undertaking re-settlement day release during 2008/09 and was assigned to the Mereside Community Centre.

He was subsequently transferred to the church hall where he was to undertake the duties of a general handyman. At both the community centre and the respondents’ church hall he was supervised by Ms Reid and it was agreed that she had instructed him not to use ladders. The appellant also accepted that he had read and signed a placement memorandum of understanding which also set out that he was not permitted to use ladders.

On 10 December 2009 the appellant fell from near the top of a 15 rung metal ladder which belonged to the respondents and was stored in the church hall. There was no suggestion that the ladder was in a state of disrepair, it had rubber feet attached to the base and the church floor was not slippery.

The appellant was using the ladder to clear away cobwebs and dust from an area he intended to paint. The ladder slipped due to a combination of the appellant reaching out with a brush and the fact that it was unfooted. The appellant suffered serious injuries.

Findings

It was accepted that the appellant was not employed by the respondents. At first instance the claim was dismissed. The judge said that he was satisfied that the defendant had not assumed control over the claimant. In his judgment he commented that it was clear that the defendant had not directed the claimant in how to carry out his work, had not sought to control him and that on the evidence the claimant was controlled by the prison governor, Ms Reid, and/or himself.

His appeal was limited to the issue as to whether the respondents had breached their statutory duty under the Provision and Use of Work Equipment Regulations 1998. The appellant’s barrister conceded that in order to succeed on the appeal that he needed to challenge two findings of facts made at first instance. Firstly, that the appellant had not been instructed by the respondent to carry out painting and decorating at the hall but rather that this had been undertaken on his own initiative and, secondly, the judge’s acceptance of lay witness evidence that at no time before the index accident had he been seen using or working from a ladder.

The Court of Appeal dismissed the challenges to both findings of fact.

Although his barrister had already conceded that, in the event neither challenge to the finding of fact was upheld, the appellant could not succeed, the Court helpfully went on to consider the above regulations. In particular, the appellant’s case was that the recorder at first instance had wrongly applied Regulation 3(3)(b).

The relevant provision states:

(3) The requirement imposed by these regulations on an employer shall also apply

(a) to a self-employed person, in respect of work equipment he uses at work; (b) subject to paragraph (5), to a person who has control to any extent of

(i) work equipment (ii) a person at work who uses or supervises or manages the use of work equipment, or (iii) the way in which work equipment is used at work and to the extent of his control.

Regulation 3(4) further defines the issue of control of work equipment as follows:

‘A person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).’

On that basis it was held that the respondent did not owe the appellant duties under the regulations as they were not his employer and because of the limitations imposed by Regulation 3(3)(b).

The Court of Appeal noted that the recorder had not considered whether the ladder constituted work equipment but believed that was his view and they accepted this.

The Court went on to say that in order to engage their duties to provide information, instruction and training and to ensure that the ladder was suitable for purpose, the respondents would have to be a person who had control to any extent either of a person at work who used/supervised and managed the use of work equipment or the way in which the work equipment was used and in either case to the extent of such control.

Given the finding that the appellant had not been instructed to undertake any painting, but did so on his own initiative, and that he was told not to use ladders both in terms of his placement memorandum and on the instructions of Ms Reid, the Court of Appeal said it was not possible to conclude that the respondent fell into either of the above categories.

Although the Court of Appeal did not decide this point, comment was made that even had sub-paragraph 3(3)(b) applied in the instant case it would not have assisted the appellant. The Court indicated that following the earlier case of Mason and Satelcom Limited -v- East Potential Limited [2008] EWCA Civ 494, Regulation 3(3)(b) only brought into play Regulation 5 which was a duty to maintain work equipment. As the equipment in the instant case was in good condition and the appellant’s injuries had not been caused by the state of the ladder but rather by the way he was using it, the Court indicated that they would not have found for the appellant.

The appeal was dismissed.

It should be borne in mind that s.69 of the Enterprise and Regulatory Reform Act 2013 would, for any accident which occurs after 1 October 2013, prevent a claimant from relying upon a breach of the Provision and Use of Work Equipment Regulations as evidence of breach of duty.

However, clearly there are still on-going cases where the regulations do apply and this case highlights the importance of not only considering the state of and maintenance of work equipment but also, importantly, the context in which it is used.

Many NHS organisations benefit from services provided by volunteers. If they use equipment which is on the premises in order to provide those services it is important to consider the extent to which they have permission to do so and also the level of control exercised by the relevant NHS organisation both over the way in which any work is undertaken and the equipment itself and how it is used. This case illustrates that there may be grounds for resisting a claim in circumstances where there is a lack of such control.