PRP Architects v Reid

This is an appeal against the judgment of Her Honour Judge Faber, sitting at the Central London County Court on 10 June 2005, by which she found PRP Architects (“the appellants”) liable in damages for personal injuries to Ms Precious Reid (“the respondent”) by reason of a breach of statutory duty, namely breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 (“the 1998 Regulations”). At the hearing, claims by the respondent against managing agents of the building where the accident occurred, Messrs Kinney Green, and Industrial Lift Services Limited, who had a contract with the managing agents for the service and maintenance of a lift, were not pursued. I will refer to the pleaded claim in negligence at a later stage. The trial was on the issue of liability only.

The respondent was employed by the appellants, a firm of architects, as a receptionist at office premises at 1, Lindsey Street, Smithfield, London EC1. The building was owned by the Corporation of the City of London. A part of the second floor, known as suite B, was let to the appellants under a ten year lease dated 9 July 1998. Access to the offices was by means of stairs and of a lift, both of which opened into a lobby area on the ground floor. The lift, stairs and lobby area were common parts of the premises, as defined in the lease, and were not let to the appellants. The evidence as to the size of the building and the use made of it was sparse. On the second floor, there were two tenants in addition to the appellants. The first floor was occupied by another commercial tenant.

The respondent was injured on 20 November 2000 when leaving the lift on the ground floor at the end of her working day. Her shoulder bag fell from her shoulder. As she reached down to pick it up, the lift door closed trapping her right hand. At the trial, it was conceded that safety devices which should have prevented the door from closing on the respondent’s hand did not work. A defect led to a power failure and prevented their operation. The respondent sustained a crushing injury to her right wrist and the base of her right thumb. It is conceded that, if the 1998 Regulations imposed statutory duties on the appellants with respect to the lift and to the use made of it by the respondent at the material time, the appellants were in breach of Regulation 5.

Regulation 5(1) of the 1998 Regulations provides:

The 1998 Regulations were enacted pursuant to Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work. In Article 2(a) of the Directive, “work equipment” is defined as “any machine, apparatus, tool or installation used at work”. Article 3(1) provides:

The definition of “work equipment” in the 1998 Regulations thus closely follows the language of Article 2(a) of the Directive. Attention was drawn to the 5th preambular paragraph to the Directive in support of the appellants’ submission that the 1998 Regulations should not be given the wide-ranging application for which the respondent contends:

Claims were also pleaded under the Workplace (Health Safety and Welfare) Regulations 1992 (“the Workplace Regulations”) and Section 1 of the Employers Liability (Defective Equipment) Act 1969 (“the 1969 Act”). Having found for the respondent under the 1998 Regulations, the judge declined to make findings on the other pleaded grounds.

The evidence as to the extent of the use made of the lift by the respondent was also sparse. However, the judge found, and was entitled to find, that in addition to using the lift in order to obtain access to and egress from the appellants’ premises on the second floor, the respondent “used the lift in the course of running errands for her employers”. There was no evidence as to the frequency of such errands.

The judge found that the appellants “provided” the lift for use by the respondent at work and also that she used it at work with their permission. She found that the lift was “work equipment” within the meaning of Regulation 2(1) of the 1998 Regulations and that the lift was defective so that there was a breach of Regulation 5(1) of the 1998 Regulations. The judge found that, for Regulation 5 to apply, it was not necessary for the employee to suffer injury in the course of her employment but also held that she was in fact in the course of her employment when injured.

The appellants submit that the lift was not at the material time an “installation for use at work”, within the meaning of the 1998 Regulations, and not therefore “work equipment” within the meaning of Regulations 3 and 5. The lift was not “provided for use by an employee”, and not “used by an employee at work” within the meaning of Regulation 3(2). Further, Article 3 of the Directive applies to work equipment “made available to workers in the undertaking and/or establishment” which would not cover a lift outside the appellants’ premises and not owned, leased, rented or maintained by the appellants. The 1998 Regulations should be construed on that basis, it is submitted. Further, for the Regulations to operate, the respondent had to establish that she was acting in the course of her employment and, having left the employer’s premises at the end of the day, she was not so acting.

Under the lease, the appellants had rights of passage in the lifts in the building during normal working hours for the purpose of gaining access to and from the demised premises (Schedule, paragraph 2(B)(iii)). The appellants paid service charges under the lease for “reasonable and proper outlay” on work including “repairing, maintaining and renewing as appropriate the lifts” (Schedule, Part III (q)). The landlords were required, under Clause 6(b) of the lease, to “carry out the works referred to in sub-clause (a) and (b) of Clause 2”. That clause refers to the services specified in paragraph 5(C) of the schedule, which includes Part III (q) already mentioned. The evidence of the appellants’ Financial Director, Mr Griffiths, was that the appellants could have made the landlords comply with that obligation. While it is not relevant to the dispute between the present parties, the lease also provided (Schedule paragraph 2(B)(iii)) that the landlords shall “not be responsible to any person using the said lifts for any neglect or default of any servant or any agent of the landlords in the operation of the said lifts or for any loss damage or injury resulting therefrom …”

Having been referred to the appellants’ skeleton argument which was submitted to the judge, and to her judgment, it is clear that the appellants did not argue that the lift fell outside the definition of “work equipment” in Regulation 2 of the 1998 Regulations, subject, that is, to argument as to the effect of the words “for use at work” in the Regulations. Before this court, Mr Vincent, for the appellants, sought to argue, though somewhat faintly, that the lift was not work equipment.

I have to say that I do not find the definition an easy one to apply. As Lord Wilberforce stated, when considering the word “installation” in its probably more common use as describing an action or process, in Engineering Industry Training Board v Foster Wheeler John Brown Boilers Ltd [1970] 2 All ER 616, at 620, that “it is not a word of any great precision.” We have not been assisted as to how the definition of work equipment, or the Directive as a whole, have been construed and applied in other member states of the Union.

I would not permit it to be argued in this court that the lift was not work equipment, because the point was not taken below. However, I accept that the expression “work equipment” should be given a broad construction. The word “installation” is capable of covering a lift in a building as “a large piece of equipment installed for use”, one of the definitions of installation in the Concise Oxford Dictionary (10^th Edition). If the point had been open, I would have welcomed further argument. If the respondent had descended by the stairs and her hand had become jammed in a faulty fire door, I doubt whether the Regulations would have applied. A distinction is necessary between “work equipment” on the one hand and the structure and condition of premises on the other. The Workplace Regulations, considered later in this judgment, limit the employer’s duties to workplaces under the employer’s control.

I add that the Approved Code of Practice and Guidance on the 1998 Regulations, issued by the Health and Safety Commission, states in terms that the Regulations apply “to work equipment used in the common parts of shared buildings (such as lifts).” However, that and some other illustrations given in the Code, are not supported by explanation or authority. They cannot, in any event, be treated as binding.

Since the lift must be taken to be work equipment, the case turns on the expression “use at work” in Regulations 2 and 3(2). If the lift was being “used at work”, it need not, as the Regulation is drafted, have been “provided” by the employer. For the respondent, Mr Huckle submits that, in the case of an employee whose work takes him from building to building, such as a travelling salesman, the Regulation would cover, in relation to the employer, the lift in every such building and also public transport used in travelling between them.

For the appellants, Mr Vincent concedes that, had the respondent been running an errand for the appellants at the material time, such as collecting the appellants’ mail from the lobby, the appellants would have been liable under Regulation 5. The issue is as narrow as that. Because, when the accident happened, the respondent had left the appellants’ premises at the end of the day’s work, they were not liable, it is submitted. It is relevant to bear in mind, it is submitted, that the lift was outside the appellants’ premises, outside their control and was not for their employees’ exclusive use. The existence of a contractual remedy for want of repair does not, for present purposes, confer any degree of control over the lift, it is submitted.

In Stark v The Post Office (transcript 2 March 2000), a delivery postman was provided with a bicycle with which to make his deliveries. The bicycle was not in an efficient state or in efficient working order. Having cited Galashiels Gas Company Limited v Millar [1949] AC 275, a case under the Factories Act 1937, Waller LJ, with whom Robert Walker LJ agreed, stated that Regulation 6(1) of the 1992 Regulations, the equivalent of Regulation 5 of the 1998 Regulations, imposed an absolute obligation and the Post Office were in breach of their statutory duty. Waller LJ referred to the Work Equipment Directive, and also stated that “all that can be said of the Directive is that it sought to bring in minimum requirements. … There is nothing in the Directive to discourage a member state in fulfilling its obligations under the Directives from imposing more stringent duties than the minimum required”. I respectfully agree with that proposition. The employer’s obligation may, upon construction of the Regulations, be broader than that required by the Directive.

Mr Vincent seeks to rely on the decision of this court in Hammond v Commissioner of Police for the Metropolis & Ors [2004] EWCA Civ 830, a case under the 1992 Regulations. A mechanic employed by the Commissioner was injured when a wheel bolt on a van on which he was working, and was not the property of his employer, sheared. It was held that the 1992 Regulations, not materially different from those of 1998 for this purpose, did not impose the absolute obligation in Regulation 5 “in relation to apparatus provided by third parties on which employees are to work” (Brooke LJ at paragraph 30). Dyson LJ, with whom Eady J agreed, stated, at paragraph 24:

Leaving aside Mr Huckle’s submission as to public transport and apparatus, the potential scope of the employer’s duty, stemming as it does from a Directive which provides that it does not wish to hold back the creation and development of small and medium size business undertakings (5th preamble), is, nevertheless, on a literal reading, very broad in its potential scope. It could be held to cover an employer occupying a suite on the second floor of premises whose employee is injured as a result of a defect in the lift at the thirtieth floor. It could be held to cover such a defect in an adjoining building, which the employee was visiting while running an errand, or a building miles away. Drawing the line will be difficult.

The test is whether the equipment is being used “at work” and there is a definition of that expression in the Health and Safety at Work etc Act 1974 (“the 1974 Act”). The 1998 Regulations are made in the exercise of powers conferred by that Act. Section 52(1)(b) of the 1974 Act provides that “an employee is at work throughout the time when he is in the course of his employment, but not otherwise”. That definition, however, applies for the purposes of Part I of the 1974 Act, by which the general duty upon an employer is to ensure the health, safety and welfare at work of all his employees, “so far as is reasonably practicable”. I do not consider that the absence of a spatial restriction in that definition necessarily operates to impose an absolute obligation under the 1998 Regulations upon an employer wherever the employee is working and whatever work equipment is involved. The definition cannot, in my judgment, be transposed verbatim into the application of the 1998 Regulations, which create strict liabilities.

Whether the employee is acting in the course of his employment is, in my view, certainly an important factor to be considered in deciding whether he is using equipment “at work” in the material time. However, the expression ‘at work’, as used in the context of the Directive, with its reference to ‘undertaking’ and ‘establishment’, may import a spatial or geographical limitation upon the places at which, and hence upon the equipment to which, the duty attaches. The degree of control exercised over the equipment by the employer may also be a factor in deciding whether the equipment is being used at work within the meaning of the Regulations.

While a tool used by an employee or equipment such as a bicycle, as in Stark, may come within the definition “work equipment” used at work wherever used by the employee, an installation, something installed in premises, may require a closer territorial link with the employer’s place of business. These issues do not require decision in the present case. I mention them to indicate that a finding in the employee’s favour in the present case does not involve acceptance of the submissions of Mr Huckle as to the extent of an employer’s duties under the 1998 Regulations.

The issue in Armstrong, Whitworth & Co. Ltd v Redford [1920] AC 757 was whether the employee was in the course of her employment under the Workmen’s Compensation Act 1906. Employed as a machinist, she left the works where she was employed during the dinner hour, as the rules required, and went to a canteen provided by the employers for their women workers in another part of the premises. Though in the same curtilage as the works, the canteen could only be reached by the street. When leaving the canteen, in order to return to her work, she fell.

By a majority, it was held in the House of Lords that there was evidence upon which the arbitrator could find that the injury arose in the course of her employment. Lord Sumner stated, at page 775:

Lord Dunedin, who dissented, attached importance to the interruption of work during the meal break, the requirement to leave the premises and to clock on again after the break. However, he stated, at page 773:

I have come to the conclusion, in agreement with the judge, that, when leaving, at the end of the day’s work, a lift located in the lobby of the building where the employee worked, the respondent was using it at work within the meaning of Regulation 3(2) of the 1998 Regulations. For present purposes, the line should not be drawn when the respondent left her office to enter the lift or when the lift left the second floor. The difficult questions which may arise when an employee is more remote from her place of work, or has no single regular place of work, need not be determined in this case.

On that ground, I would dismiss this appeal. That being so, I deal with the other pleaded grounds, on which the judge declined to make a ruling, briefly.

Regulation 4(1) of the Workplace Regulations provides, insofar as is material:

Regulation 5(1) of the Workplace Regulations provides:

By virtue of Regulation 2 of the Workplace Regulations, “workplace” includes:

The court has not heard full argument on the point but I am unable to find that the appellants, to any extent, had control of the lift within the meaning of Regulation 4 of the Workplace Regulations. It was not theirs and the responsibility for its repair and maintenance was not theirs. The operation of the control mechanism of the door to the lift was not under the control of the appellants. They could themselves do nothing about the defect which arose and which caused the accident to their employee. The fact that they had a contractual right to have the lift repaired did not in my judgment confer any degree of control upon it for present purposes.

Common law liability was also asserted in reliance on Section 1(1) of the 1969 Act which provides that an injury shall be deemed to be attributable to negligence on the part of an employer where “an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer’s business”.

The respondent is not entitled to rely on the 1969 Act in this court. While the judge did in her judgment refer to concessions made about safety devices and referred to the 1969 Act, the judge stated that the claimant “did not pursue the pleaded negligence at common law”. To take advantage of the 1969 Act, negligence at common law would need to be shown. On the material before this court, Mr Huckle has not persuaded me that a case at common law was pursued. The claimant accepted that the defect was not foreseeable by the defendants. If negligence had been pursued, the hearing would have taken a different course, including evidence and cross-examination about the cause of the accident. The respondent is, in my judgment, confined to arguing breaches of statutory duty.

However, for reasons given earlier, I would dismiss this appeal.

I agree.

In Whitworth’s case [1920] AC 757, to which Pill LJ has referred, Lord Wrenbury, who was with the majority, gave a brief speech, to the following effect:

In my opinion, the observations in the first sentence of that speech have obvious resonances here, in relation to the 1998 Regulations and the words “provided for use or used by an employee… at work” in regulation 3(2). For a court to seek to redefine a statutory expression is often dangerous or unhelpful, and can fairly be said to be inappropriate in principle. Judicial reformulation can lead to error, as subsequent decisions may then be based on the reformulated expression, and, if it gives rise to a test which is different from the statutory test, the court will obviously risk going wrong. If the judicial reformulation gives rise to a test which is the same as the statutory test, it will normally be of no more assistance than the statutory test.

Even to seek to identify any general principles with a view to determining whether an item of work equipment was so provided or used, can often be unhelpful, indeed dangerous. The circumstances which can give rise to claims for breach of regulation 5(1) are so multifarious that it will only be an exceptional case in which it could be appropriate for a judge to try to lay down any general guidance. Any such guidance would inevitably be framed in the light of the particular facts of the case before him. Such guidance would therefore normally either be inappropriate in relation to cases on different facts, or would be so hedged about with qualifications to avoid that risk as to be of little, if any, general value. As in many other areas of law, it appears to me that this is a topic on which such principles as can be extracted through legal proceedings must be developed on an incremental, case by case, basis.

In the light of the facts as set out in paragraphs [2], [8] and [11] of the judgment of Pill LJ, it appears to me that, to put it at its lowest, Her Honour Judge Faber was entitled to conclude that the lift in this case constituted “work equipment” falling within regulation 5(1), and that it fell within the ambit of regulation 3(2), in relation to the respondent and her employment by the appellant.

I reach this conclusion on the basis of the following facts:

I am not saying that each or any of these factors is vital or determinative of the issue which we or the judge had to decide. What I am saying is that, in much the same way as Lord Wrenbury in the second sentence of his speech, my judgment is that, in the light of all these factors, the judge was entitled to reach the conclusion that she did.

Accordingly, like Pill LJ, with whose judgment I entirely agree, and Smith LJ, I would dismiss this appeal.