HEALTH AND SAFETY — Employer’s liability — Suitability of equipment — Employee habitually collecting client from own home for day care — Employee injured when pushing client in wheelchair down ramp — Whether ramp “work equipment” for “use at work” — Whether employer strictly liable — Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306), regs 4, 5

Smith v Northamptonshire County Council [2008] EWCA Civ 181; WLR (D) 83

CA: Waller, Richards and Rimer LJJ: 11 March 2008

An employer had no responsibility to maintain a ramp on which its employee was injured which was installed by a third party on premises of a third party and over which it had no control.

The Court of Appeal so stated when allowing the appeal of the defendant, Northamptonshire County Council, against a decision of Judge Metcalf in the Northampton County Court on 14 March 2007 allowing a claim by the claimant, Jean Smith, for personal injuries.

The claimant was employed by the council as a carer. She was pushing a wheelchair-bound client down a ramp from her home when she stepped on the edge which gave way and she injured herself. The judge held that reg 5(1) of the 1998 Regulations imposed strict liability on the council for maintaining the ramp as work equipment for use at work and that the council had breached its obligations.

WALLER LJ said that the appeal raised an important issue of construction. Strict liability should only be imposed by clear language. For someone to have the obligation to maintain something it would normally have to be within their power to be able to do so without obtaining someone else’s consent. The duty to maintain could not normally apply to something which was part of someone else’s property. It could furthermore not normally apply to something in relation to which access was limited and if some maintenance was necessary, consent to carry out the work was necessary. Parliament would not have contemplated that either reg 4 or reg 5 of the 1998 Regulations should impose strict liability in respect of construction or maintenance on the council in relation to this ramp. Both regulations contemplated some underlying relationship from which it would be natural to contemplate some responsibility for maintenance or construction, or at least the right to construct or maintain, before the obligation to ensure suitability for performance or maintenance would apply. Strict liability should not flow out of a position in which there was no right and no responsibility to do that thing or insist on doing that thing for which strict liability was being imposed.

RIMER LJ said that it was implicit in the 1998 Regulations that an item would ordinarily only be capable of constituting “work equipment” if it was an item in respect of which the employer had a right of control sufficient to enable him to discharge the obligations as to its suitability, maintenance and inspection under reg 4. The purpose of the Regulations was to impose upon employers the practical task of ensuring that equipment that the employee would be using at work would be safe. The Regulations were directed at prevention of injury and should be interpreted in a practical way. An employer could only be expected to discharge the obligations they imposed in relation to equipment which he was, or should be, aware his employee would be using and over which he had the necessary control to enable him to perform them. If he did not have such control the equipment would not be “work equipment” for the purposes of the Regulations at all.

RICHARDS LJ agreed.

Appearances: Anthony Berrisford (Thompsons, Nottingham) for the claimant; Hugh Preston (Shoosmiths, Northampton) for the council.

Reported by: Alison Sylvester, barrister