Whether apparatus is ‘work equipment’

House of Lords
Published July 3, 2008
Spencer-Franks v Kellogg Brown and Root Ltd and Another
Before Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance and Lord Neuberger of Abbotsbury
Speeches July 2, 2008

A door-closing device which ensured that the door of the control room on an oil rig was closed was “work equipment” within regulation 2 of the Provision and Use of Work Equipment Regulations (SI 1998 No 2306) and, consequently, a mechanic who was injured while repairing such a device was entitled to bring proceedings under those regulations against his employer and/or the oil rig operator.

The House of Lords so held in allowing an appeal by the pursuer, Peter Spencer-Franks, against the dismissal of his action against the defenders, Kellogg Brown and Root Ltd and Talisman Energy (UK) Ltd, by the Second Division of the Inner House of the Court of Session (Lord Gill Lord Justice-Clerk, Lord Johnston and Lord Marnoch) (2007 SLT 392) on appeal from a decision of Sheriff Tierney at Aberdeen Sheriff Court (2006 SLT (Sh Ct) 9).

Regulation 2 of the 1998 Regulations provides: “ ‘work equipment’ means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)” Regulation 3 provides: “(2) The requirements imposed by these regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work.”

Mr Angus Stewart, QC and Ms Jan McCall for the pursuer; Mr Colin Macaulay, QC and Mr Roderick Dunlop for the defenders.

LORD HOFFMANN said that the 1998 Regulations were intended to implement the Work Equipment Directive (Council Directive 89/655/EEC) (OJ December 30, 1989 No L393/13) although, as the explanatory note pointed out, the provisions of regulation 3(3) to (5), which placed duties upon non-employers having control of work equipment, went beyond what the Directive required.

The definition of work equipment in the Directive was “any machine, apparatus, tool or installation used at work”. The definition in the 1998 Regulations used the words “for use at work”. The change was probably made to forestall literalist arguments that a defective machine which caused injury while it was not actually being used was not work equipment.

The domestic definition required one to ascertain the purpose of the apparatus, etc. What was it for? If it was for use at work, then it was work equipment.

If one took that simple approach, then the answer seemed to be clear. Everyone using the control room was using it for the purposes of their work. They used the door to enter or leave the control room. And in doing so, they used the closer. Its purpose was for use at work. Giving the definition its ordinary meaning, the closer was work equipment.

The question was whether it could be excluded by some implied qualification. One possibility was that the 1998 Regulations impliedly excluded apparatus which formed part of the premises upon which the work took place. In the case of ordinary work premises on land, that might be a good argument.

But when the 1998 Regulations were read together with the Offshore Installations and Wells (Design and Construction, etc) Regulations (SI 1996 No 913), which replaced the Offshore Installations (Operational Safety, Health and Welfare) Regulations (SI 1976 No 1019), the intention seemed to be that the 1998 Regulations should apply to all equipment on an offshore installation.

In the nature of things, a lot of such equipment was going to be bolted or otherwise attached to the platform, but that did not prevent it from being work equipment if it was for use at work.

An alterative argument, which found fa-vour in the Court of Session, was based upon the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis ([2004] ICR 1467). His Lordship had respectfully to differ from the approach in that case. Something could not be work equipment in relation to one person but not to another.

The Directive did not say that work equipment had to have been made available to the particular employee who had been injured. It spoke of the equipment being made available to “workers in the undertaking”. That meant all or any of the workers in the undertaking.

When one was considering the persons to whom the equipment had been made available, the relevant unit was the undertaking and not the particular worker.

So, for example, if an undertaking carrying on a delivery business provided vans for its employees, they would be work equipment made available to workers in the undertaking. If a van driver repaired a puncture and was injured by a defect in the wheel, he would have been using the work equipment. It could not make any difference if the repair was done by a different worker in the same undertaking; for example, a specialised mechanic.

The 1998 Regulations should be interpreted to accord with the principle stated in the Directive. In holding that the door closer was not work equipment, the Court of Session followed the Hammond case. It led the judges to the conclusion that the door closer was not work equipment and, for the reasons given, that was wrong. The door closer was apparatus for use at work.

Lord Rodger, Lord Carswell, Lord Mance and Lord Neuberger delivered concurring opinions.

Solicitors: Drummond Miller LLP, Edinburgh; HBM Sayers, Glasgow.