19.2.09

Makeshift tool stored in side pocket of driver’s door was not work equipment for the purposes of the Provision and Use of Work Equipment Regulations.  

Mr Couzens sustained an injury when the tipper lorry he was driving overturned as he was leaving the M1 motorway. It was common ground that the accident occurred because he was driving too fast. However, he alleged that this was because he had been unable to move his right foot from the accelerator to the brake. This was because a piece of angle iron used by him as a makeshift tool, which he kept in the side pocket of the driver’s door, had caught in his trouser leg. He alleged that his employer had failed to provide a suitable place in which he could safely keep this tool. His claim was dismissed at first instance. The Court of Appeal gave permission to appeal on the ground that it was arguable that the Recorder had erred in his approach to the Provision and Use of Work Equipment Regulations 1998.  

Held: If an item of equipment, which has not been supplied by an employer, is being used at work, it will not be “work equipment” for the purpose of the regulations unless the employer expressly or impliedly permitted its use or must be deemed to have permitted its use. Express permission is a matter for direct evidence. Deemed permission will be inferred when the employer ought to have realised an item was being used but apparently did nothing to stop it. If the Recorder had asked himself whether the employer had permitted the use of the angle iron or must be deemed to have done so, he would, on the limited evidence available to him, have reached the conclusion that it had not. The Court of Appeal therefore held that the regulations did not apply to the use of this angle iron because the employer had not permitted its use. Mr Couzen’s appeal was dismissed.  

Comment: This is the latest in a series of decisions relating to work equipment. In Mason v Satelcom Ltd [2008] a ladder used by an employee was held to be work equipment because the employer gave implicit permission for him to use whatever was available. In Smith v Northamptonshire County Council [2008] the Court of Appeal held that the Council was not liable for an injury resulting from a defective ramp being used by Ms Smith at a private individual’s house on the basis that the ramp was not work equipment. In Spencer-Franks v Kellogg Brown and Root Ltd [2008] the House of Lords decided in a Scottish claim that a door closer being repaired by Mr Spencer-Franks was work equipment within the meaning of the regulations.  

In Spencer-Franks the House of Lords confirmed that the regulations are intended to cover a wide range of objects used in the course of work. However, employers and their insurers will be relieved to see that, as illustrated by Smith and Couzens, the courts will place limits on what will be considered to be work equipment for the purposes of the regulations, thereby limiting their potential liability.