The claimant was employed by the council as a driver and carer. She visited the home of Mrs Cotter, a wheelchair-bound service user, to take her out for the day. In order to do this, the claimant needed to manoeuvre Mrs Cotter down a wooden ramp situated outside the patio doors of the house. While doing this Mrs Cotter's trip took an unexpected turn - the edge of the ramp crumbled causing the claimant to fall and sustain injury.
The ramp had been put in place by the NHS about 10 years prior to the incident. The council did not own the ramp but it had inspected and assessed it from time to time and there were no obvious signs of disrepair.
The claimant argued that the council was in breach of Regulation 5(1) for failing to ensure that the ramp was maintained in an efficient state and in good repair. The attraction of that argument from the claimant's point of view was that if the Regulations did apply to the ramp, then liability would be strict - a point conceded by the council.
The House of Lords considered that for the Regulations to apply the employer must have some control over the equipment and that this had to be more than just control over the way in which the equipment was used. Since there was no such control here, the claim failed.
In a 2006 Court of Appeal decision, PRP Architects -v- Precious Reid, the employee's hand was injured when trapped in a lift door which closed as she left work. Safety devices should have prevented the door from closing but these had failed to operate owing to a defect. She pursued PRP for damages by reason of its alleged breach of statutory duty under Regulation 5. PRP did not own the building where the accident occurred, but were tenants of part of it. Another company owned the premises, a different company managed the premises and yet another serviced and maintained the lift. At trial, the judge found that the employer not only "provided" the lift for use by its employees but that it was also "work equipment" within the definition of Regulation 5.
The Court of Appeal upheld the decision on the basis that "the expression 'work equipment' should be given a broad construction...The lift... is the property of a third party but it is a facility used in the course of work" (per Lord Justice Pill). Although not expressly considered, the decision in Smith would appear in fact to overrule the PRP case.
Clearly the binding House of Lords decision in Smith is good news for employers who have been particularly concerned about the strict liability imposed by Regulation 5 since 2000 when, in Stark -v- The Post Office, a postman succeeded in his claim for compensation for injuries arising from his fall from his defective delivery bike. The court in that case confirmed that Regulation 5 imposed an absolute duty.
Regulation 5 still imposes strict liability if it applies, but the Smith case delimits the circumstances under which it will apply: employers should not be strictly liable under Regulation 5 for injuries sustained by employees where equipment is used as part of work but is not under their control.
However, there might still be liability in negligence if, for example, the employer knew or ought to have known of the defect and should have avoided the risk to its employees. Of course there may still be strict liability if the employer does have control over the equipment used.
The council's defence in Smith was also undoubtedly helped by the fact that they had inspected the defective ramp from time to time and no defect had been found. Risk assessments clearly continue to be extremely important.
While this decision may assist in repudiating liability, if you find yourself facing a claim by an employee arising from equipment which you do not own or maintain, we recommend you also consider further protecting your position by making whoever is responsible for the equipment (owner or maintainer) a party to the proceedings. By so doing, you can then often seek an indemnity from them.