The Provision and Use of Work Equipment Regulations 1998 (‘the regulations’) have had much judicial consideration in recent years. Many of the judgements are a study in the judiciary attempting to change the apparent meaning of legislation, recognising that a literal interpretation could lead to absurd results.
The most recent decision was handed down by the House of Lords on the 20 May 2009. Their Lordships must be hoping that the case of Smith v Northamptonshire County Council  UKHL 27 will be the last time that they have to grapple with these particular regulations for some time.
The central issue for debate was whether it was necessary for an employer to have any element of control over work equipment used by employees before they could be held strictly liable under the regulations for injury to an employee. The facts concerned an access ramp installed by the NHS some 10 years earlier to enable a severely disabled occupant to get in and out of her own home. The ramp was used by a driver/carer, employed by the County Council, who collected the occupant on a regular basis to take her to a day centre. A latent defect in the ramp, not identifiable by inspection, caused the Council employee to be injured. The claimant here was trying to prove her claim for compensation on the basis of strict liability under the regulations because it was agreed that the Council had done everything they should have done to protect their employee from injury and were not liable in negligence.
There was clearly much debate before the committee of the effect of a literal interpretation of the regulations, with road bridges, underground lifts and chairs in the committee room all being used as examples of work equipment that was being used by employees, and over which, their employer had no control and was powerless to protect their employees against.
As a result of these arguments there was a general acceptance that it was necessary to place some limitation on the extent to which the regulations imposed strict liability. Lord Neuberger of Abbotsbury, at paragraph 82 stated that:
‘The Regulations are intended to impose absolute liability on an employer in a very wide, but not infinitely wide, range of factual circumstances, many of which it is impossible to envisage in the abstract, and which are any way so multifarious that it is impossible to spell out even all those that can be foreseen.’
What remained in dispute amongst their lordships was how that limitation was to be imposed, in the absence of such wording in the Regulations, and what the effect of such a limitation actually was in this case.
All agreed that it was necessary to consider the control which could be exerted by the employer before it could be said whether the regulations applied. A dispute remained over whether that control should reflect the control that an employer has over the employee’s use of the equipment as expounded by Lord Hope, or the control which the employer has over the equipment itself, as put forward by Lord Mance. The approach of Lord Mance was approved by the majority. Support for this was drawn by Lord Neuberger from other provisions within the Regulations themselves; the view that such an approach dealt more satisfactorily with the extreme examples discussed in argument; the fact that the equipment was under the control of someone else; the provenance of the Regulations in proposals by the HSE; and a more limited EU Directive.
The net effect of the decision is to limit strict liability under the regulations to those cases where the employer has some control over the equipment itself and not merely the use of that equipment. The equipment must be ‘incorporated into and adopted’ by the employer before liability attached.
Beware, however, because that does not mean that the employer does not have any duties in respect of this equipment. Much was made of the fact that the Council had actually been out to inspect and test the ramp. As Lord Hope noted at paragraph 10 that:
‘They tested its stability. An employee walked up and down it and stood on it, jiggling up and down to check whether it was sturdy. Their employees were trained to perform a visual check of the ramp every tine they visited Mrs Cotter’s premises.’
This afforded the Council with a defence in negligence and provided evidence that they had complied with the duty to assess the risk under the Management of Health and Safety at Work Regulations 1999. There was some debate whether this inspection had led the employer to ‘incorporate into or adopt’ the ramp but it was felt that they were in fact doing no more than a prudent employer would do.
Whilst the decision in Smith brings about a welcome limitation to the broad impact of the regulations, they do not in any way diminish the high duty that employees have in respect of equipment used by employees whilst at work, whether that is provided and controlled by them or not.
Many employers would have found it difficult to escape a negligence claim or a Health and Safety prosecution for breach of the management regulations in quite the same way as Northamptonshire. I suggest that few employers would have gone as far as Northamptonshire did to examine equipment provided by others but used by employees. What is clear from Smith is that if this is done on a regular basis, you may need to do so.