Mason v Satelcom Ltd (East Potential Ltd, Part 20 defendants): [2008] EWCA Civ 494

CA: Ward, May and Longmore LJJ: 14 May 2008

The claimant was sent by his employer to replace a card in a computer installation. The computer belonged to a local authority and was situated, in a cabinet eight feet above floor level, with other computers in a server room owned and managed by the Part 20 defendants. In order to reach the cabinet, the claimant, who had not been provided with a ladder of his own, used a ladder he found in the room. The ladder was not long enough, and in reaching up the claimant fell, sustaining spinal injuries. On his claim for damages against, inter alia, his employer and the Part 20 defendants, the judge held that, as the ladder was too short to provide proper and safe access to the cabinet, the claimant’s employer was in breach of regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996; that the ladder was “work equipment” and was unsuitable for the purpose under regulation 4 of the Provision and Use of Work Equipment Regulations 1998; but that the Workplace (Health, Safety and Welfare) Regulations 1992 did not apply, by virtue of regulation 3(1)(b), since the only activity taking place in the server room was the work being performed by the claimant. He, accordingly, held the claimant’s employer in breach of statutory duty and guilty of negligence in failing to provide a safe system of work, assessing the employer’s liability at two-thirds and holding the claimant one-third to blame for his accident. Though unable to determine who owned the ladder, in the Part 20 proceedings brought by the employer, the judge found that the Part 20 defendants had control over it in the terms of regulation 3(3) of the 1998 Regulations and could have moved it elsewhere or placed a warning notice on it; and he ordered that they should contribute to the extent of 25% to the damages to be paid by the employer.

The Part 20 defendants appealed and the employer cross-appealed, contending that, if the Part 20 defendants were not liable under the 1998 Regulations, they were in breach of a duty to prevent the claimant’s fall under regulation 13 of the 1992 Regulations.

The Court of Appeal held:
(1) In determining the liability of a non-employer for work equipment by virtue of regulation 3(3)(ii) of the Provision and Use of Work Equipment Regulations 1998, it was necessary to ascertain the purpose for which he had control of the work equipment, since the Regulations applied only to the extent of his control. On the facts found by the judge, the Part 20 defendants were not, for the purposes of regulation 3(3), persons having relevant control of the ladder used by the claimant, and, in any event, the extent of any such control they might have did not reach as far as determining its suitability for the use the claimant made of it. Accordingly, there could be no breach of regulation 4 by the Part 20 defendants.
(2) Where possible the Workplace (Health, Safety and Welfare) Regulations 1992, the Construction (Health, Safety and Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998 should be construed so as not to overlap. Dangers of work equipment should be dealt with under the 1998 Regulations, dangers in construction work under the 1996 Regulations and dangers in the workplace under the 1992 Regulations. Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992 referred to the risk of falling as a result of a danger inherent in the workplace, rather than a danger arising from equipment brought into the workplace, and falls from ladders should be dealt with as work equipment under the 1998 Regulations. Accordingly, the 1992 Regulations did not apply to regulate the claimant’s use of the ladder.

The appeal was allowed and the cross-appeal was dismissed.

Appearances: Christopher Purchas QC (Vizards Wyeth, Dartford) for the Part 20 defendants; Christopher Russell (Bond Pearce, Bristol) for the employer.