In last month’s edition of Liability News, we highlighted the significant House of Lords decision of Spencer-Franks v Kellogg Brown and Root Limited and Others (2008) concerning the changes in the way in which courts interpret the Provision and Use of Work equipment Regulations 1998, and in particular what constitutes “work equipment”.

Scott Nightingale, Partner in our Manchester office, further considers the wider issue of the law relating to the use of work equipment in the workplace, and suggests all may not be completely lost for Defendants following his recent case of Walker v Ceva Logistics Limited (2008).

Overview

The Provision and Use of Work Equipment Regulations 1998 imposes an absolute duty upon Defendant employers to ensure that equipment being used in the workplace is maintained in an efficient state, in efficient working order and in good repair.

Thus, no inspection system can be relied upon as a defence if that regulation is breached, and the equipment continues to be used in a state anything other than in efficient working order and in good repair.

This has been the position ever since the well publicised Court of Appeal decision in Stark v The Post Office (2000). Mr Stark, a postman, was injured when he was flung from his bicycle as a result of a failed brake cable. It mattered not that the Post Office was found to have exercised reasonable care in implementing a programme of inspection and maintenance; nor that it was unlikely such inspection or routine maintenance of the bicycle would have revealed the problem and led to the replacement of the “defective” part. The Court of Appeal determined that the statutory duty to maintain the bicycle in an efficient state and in efficient working order was breached at the moment the brake cable snapped.

On first blush, the position seems a little harsh – a diligent employer may well find itself in breach despite investing heavily in robust systems of inspection and maintenance. Of course the rationale behind the decision in Stark is one of public policy, i.e. the protection of the health and safety of workers is of paramount importance. Imposing an absolute obligation on employers should encourage them to ensure the use of properly serviced and maintained equipment. In short, the employer should ensure that work equipment is maintained to a “gold standard”.

On the face of it therefore, it is very difficult for an employer to defend any claim arising from the use of work equipment. It seems Insurers and employers alike assume this to be the case, resulting in blanket admissions and the routine pay out of claims. However, the onus is of course upon the Claimant to satisfy the Court to the required standard (i.e. on the balance of probabilities), that firstly the equipment was indeed defective (as opposed to simply being misused) and that his reasonable use of the equipment resulted in the injury (or put another way that the Claimant’s conduct was such that it did not amount to a new and unforeseeable intervening act).

In Wallis v Balfour Beatty Rail Maintenance Limited (2003), the Court of Appeal considered the case of Mr Wallis, an experienced Track Manager employed by the Defendant to maintain railway lines. On one occasion, Mr Wallis whilst attending a scene of a technical problem, was unable to gain access to the track. Although Mr Wallis had the use of a “common key”, he was unable to unlock the padlock on the access gate. Advised by his control centre to find the quickest alternative access route, Mr Wallis climbed a nearby palisade fence onto a sloping wall, from which he fell sustaining injuries.

The Court of Appeal held that whilst the lock and key were “work equipment” within the meaning of Regulation 5 there was no breach as the key provided fit a standard lock and therefore although it did not open the lock in question, it was suitable for the purpose provided. The important point to take from this case is that the Court was also critical of the Claimant’s actions – the sole and unforeseeable intervening cause of the accident. Accordingly, the Court found in favour of the Defendant.

This case does not alter the position in Stark but it does offer up some hope to Defendants when it comes to the question of causation. Perhaps the case of Wallis is not the most persuasive of examples – Mr Wallis was not using the equipment at the time of his injury, rather he was taking action to avoid having to use it. There could well be a distinction to be drawn. It also begs the question as to what extent the intervening act must be unforeseeable before liability will fail to be established. Of course each case will be decided on its on factual merit.

Both the issues as to whether work equipment was defective and the Claimant’s actions in operating that equipment were considered by the Court in the recent, currently unreported case of Dennis Walker v Ceva Logistics Limited (2008).

Facts

Mr Walker, an experienced HGV Driver employed by the Defendant, sustained an injury to his left elbow when preparing to unload a curtain sided trailer whilst delivering to a customer. Mr Walker claimed one of the trailer poles (to which the curtain was attached at one end) jammed as he attempted to pull it out and therefore must have been defective. Mr Walker’s evidence was that he made an initial effort to remove the pole but when he failed, made a second, more forceful attempt and in doing so banged his elbow on the side of the trailer.

Whilst giving evidence, the Claimant conceded that the pole itself was not bent (as that would have been plainly obvious) and that when he returned to the depot he had not difficulty removing the pole from its housing, having deliberately released some of the tension by relaxing the curtain prior to removing the pole. The Claimant surmised that there must have been something wrong with the bolt inside the pole.

Decision

The Court accepted that an injury occurred, but could not be satisfied to the required extent that the accident happened because of a fault or defect in the housing at the bottom of the pole, or the apparatus below it. Having considered the Defendant’s evidence, the Court accepted that the probable cause of the Claimant’s initial difficulty in removing the pole was because he had failed to take sufficient tension off the curtain, by not releasing enough bottom straps holding the curtain to the trailer, so making it more difficult to lift the pole out of the housing. Furthermore, the Court was critical of the Claimant for making a second, more forceful attempt to remove the pole when ignorant of the reason for his failure to remove it first time.

Comment

Whilst only a Circuit Judge decision that cannot be cited under the Practice Direction as authoritative or persuasive, the case illustrates a number of propositions.

Firstly, alleged defects do need to be pleaded, evidenced and proved with due particularity. They are not self proving. This may seem trite, but Mr Walker had merely asserted the pole stuck or jammed and by necessary inference was defective within the meaning of Regulation 5. That was found to be insufficient.

Furthermore, Mr Walker failed to convince the Judge that it was a defect, rather than his way of using the pole (as distinct from simple careless use or not de-ratcheting it sufficiently), that effectively caused his injury.

The Court did not make a finding as to whether the Claimant’s actions were so unreasonable as to make this the sole cause of the accident – it did not have to, as it could not be satisfied that there was a defect. At the very least, the action of the injured employee could well give rise to a finding of contributory negligence and the Walker case does at least give an indication that the Courts are prepared to take the employees actions into account.

In short, Defendants should resist the temptation to automatically assume they will fall foul of Stark, unless the facts and evidence really do mean that a case should be assimilated to that line of authority.