20.5.09
House of Lords rejects employee’s claim arising out of defective work equipment; equipment was not incorporated into and adopted as part of the employer’s business.
Mrs Smith was employed by the Council as a driver and carer. As part of her job she was required to collect people who were in need of care from their homes and take them by minibus to a day centre. One of these people was Mrs Cotter, a wheelchair user. In order to exit Mrs Cotter’s home, Mrs Smith had to manoeuvre her wheelchair down a ramp, which led from her living room to a patio. The NHS had placed the ramp there about 10 years previously. On 1 December 2004, when Mrs Smith was using the ramp, an edge of the ramp crumbled beneath her foot, causing her to stumble and sustain injury. Prior to the House of Lords hearing, and following the decision of the House of Lords in Spencer-Franks v Kellogg Brown and Root Ltd [2008], it was accepted that the ramp was work equipment for the purposes of the Provision and Use of Work Equipment Regulations 1998.
Held: Delivering the leading judgment, Lord Mance said that the relevant question was whether, in respect of the Council as Mrs Smith’s employer, the ramp was relevant work equipment, in particular for the purposes of regulation 3(2), which imposes strict responsibilities on an employer for “work equipment … provided or used by an employee of his at work.”. An entirely literal approach to the words “or used” cannot be correct. The example given was that otherwise this would mean a solicitors’ firm being strictly liable to its clerk who was required to attend a House of Lords hearing for injury caused by a defect in a House of Lords’ Committee Room chair used by the clerk. The words “or used” may have been inserted to cover a situation where an employee uses equipment which one would ordinarily expect to have been provided by the employer, say their own saw or screwdriver. Lord Mance stated, “What matters is that some specific nexus (beyond the mere fact of use) is required between the equipment and the employer’s undertaking.” The test is whether the work equipment has been incorporated into and adopted as part of the employer’s business. The ramp was not incorporated into and adopted as part of the Council’s undertaking and so the claim failed. Lords Neuberger and Carswell agreed with Lord Mance. Lord Hope and Baroness Hale dissented.
Comment: This decision, which upholds the Court of Appeal decision albeit for different reasons, represents good news for defendants and insurers. The decision last year in Spencer- Franks expanded the scope of strict liability for work equipment, but the House of Lords has now limited its scope.
In many cases there will be no doubt that the employer is responsible for the equipment in question. However, the decision will be helpful to employers whose employees regularly work away from the workplace, as it sets in place clear guidelines for determining whether liability will apply. In particular, employers will not be at risk of being held liable for equipment for which they have no responsibility. There must be a specific link between the equipment and the business for strict liability to apply.
