Johnson v University of Bristol (17/10/2017) 

The facts

The claimant was employed by the defendant as a carpenter and a joiner and had been required to attend a self-catering student flat to repair part of a kitchen unit. As the claimant was carrying out the required work, he opened the door of a cupboard and the cupboard unit collapsed causing the utensils to fall out cutting the claimant’s right hand.

The claimant brought a claim against the defendant alleging that it was in breach of the Provision and Use of Work Equipment Regulations (“PUWER 1998”) and the Workplace (Health, Safety and Welfare) Regulations 1992.

At first instance, the judge found that the kitchen unit had not been provided for a work purpose as it was used for storage purposes. It was stated that the fact that it had been repaired did not make it work equipment within regulation 2(1) of the PUWER 1998 and consequently regulation 3(2) of the same regulations was not engaged. It was also held that the flat could not amount to a workplace within regulation 2(1) of the PUWER 1998 because it was domestic premises. As a result, the claim was dismissed.

The claimant appealed the decision on the basis that the judge should have applied a wide, purposive construction of “work equipment”, “use” and “work place” within the meaning of the PUWER 1998. It was submitted that the defendant’s function was not just to provide education services, but included its role as landlord of student accommodation so there was sufficient connection between that latter function and the provision of the kitchen unit to bring it within the regulations.

Decision

The Court of Appeal held that the kitchen unit was not equipment that the defendant had supplied to its workforce and it was not equipment that its workforce was required to use in the course of their employment, other than, when on occasion they were required to repair it. It was concluded that simply working on repairing an item did not make it work equipment within the meaning of regulation 2(1) of the PUWER 1998. Also the kitchen cupboard was in private student accommodation and was not used in the course of the defendant’s work.

It was held that the judge had been entitled to reach the conclusion that the kitchen unit was not “work equipment” within the meaning of regulation 2(1) of the PUWER 1998.

The Court of Appeal concluded that whether the kitchen in the student flat amounted to “domestic premises” and was excluded from amounting to a workplace under regulation 2(1) was a mixed question of fact and law for the judge’s consideration. It was specifically stated that the appeal courts could only interfere with such a decision if it contained an error of law or mistake on the facts. It was held that it was not possible to say that the judge had been in error in concluding that the kitchen, as an integral part of the student flat, amounted to domestic premises and was not a place of work in which regulation 2(1) could apply.

The claimant’s appeal was dismissed.

What this means for you

This case shows that an item will not be seen as work equipment within the meaning of regulation 2(1) of the PUWER 1998 simply because a person works on it or repairs it during the course of their employment. In this case, the kitchen cupboard was in private student accommodation and it was clear that it had not been supplied to the defendant’s workforce as “work equipment” and was only handled on occasion, if it was in need of repair.

It can be seen that the Court of Appeal reached a sensible decision because the defendant had not intended for the kitchen cupboard to be work equipment and it had been used simply to store utensils.

In this case, it could be argued that the student flat was not “domestic premises” and could have come under the definition of workplace under regulation 2(1). However, it can be seen that this would be stretching the definitions and the Court of Appeal did not want to interfere with the judge’s decision, as there had been no error of law or mistake by them on the facts.

It should be noted that the claim was pursued prior to the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) coming into force, so the claimant pursued the defendants for breach of statutory duty under the PUWER 1998. It should be noted that a breach of the regulations post 1 October 2013 does not impose civil liability. However, a breach of the regulations can be used as evidence in support of a defendant’s negligence and as a result the work regulations should be complied with where possible.

In Gilchrist v Asda Stores Limited [2015] CSOH 77, the claimant essentially argued that if an employer breached a regulation and committed an offence then they could not argue that they had acted reasonably in all the circumstances. Also the claimant submitted that section 69 of the ERRA 2013 did not undermine core health and safety standards and that an employer’s statutory duties would remain relevant as evidence of standards expected of them in civil cases. The defendant made no contrary submissions to the claimant’s arguments in respect of section 69 of the ERRA 2013 and Lady Stacey indicated that she was prepared to accept the claimant’s arguments.

As a result, this case indicates that although a breach of the regulations, after the coming into force of section 69 of the ERRA 2013, does not lead to an actionable breach of statutory duty; a breach of the regulations evidences that the employer has not acted reasonably and is therefore negligent at common law. It does not go so far as to provide that a breach of the regulations automatically means that an employer has been negligent but it should be noted that a breach of the regulations may lead to a judge concluding that a defendant has been negligent at common law.

In this case, it is questionable whether the defendant would have escaped liability had the kitchen unit been found to be “work equipment” under regulation 2(1) of the PUWER 1998 as clearly there were defects as it warranted repair.