Accidents – Breach of statutory duty – Employers’ liability – Oil rigs – Scotland – Work equipment

Spencer-Franks v Kellogg Brown & Root Ltd & Ors: HL (Lords Hoffmann, Rodger of Earlsferry, Carswell, Mance, Neuberger of Abbotsbury): 2 July 2008

The appellant (S) appealed against a decision ([2007] CSIH 23, 2007 SC 469) of the Inner House of the Court of Session, dismissing his claim against the respondents (K and T) for breach of statutory duty under the Provision and Use of Work Equipment Regulations 1998.

S was employed by K as a mechanical technician. K had contracted to supply workers to operate a North Sea oil platform operated by T, and S was one of the workers it supplied. S was injured in an accident that occurred while he was carrying out his duties on the platform. He had been asked to inspect and repair a ‘door closer’ on the door of the central control room. The closer consisted of a spring ­mechanism that connected the door to the frame by a linkage arm. As S was repairing the closer, a screw came out and the linkage arm struck him in the face. He brought an action against both K and T, claiming that each had been in breach of its ­obligations under the regulations.

He argued that the door closer was a piece of machinery or apparatus for use at work within the meaning of regulation 2(1), and that the duties imposed on T and K applied to it because it was used by an employee at work within the meaning of the same regulation.

The Inner House took the view that the door closer was not ‘work equipment’ or, even if it was, S had not been using it within the meaning of the ­regulations. The issue was whether the door closer was ‘work equipment’ and whether S had been using it ­within the meaning of the regulations.

Held: The door closer was apparatus for use at work. The regulations were intended to implement Directive 89/655. While the directive defined work equipment as ‘any machine, apparatus, tool or installation used at work’, the regulations used the words ‘for use at work’.

Thus the regulations required that the purpose of the piece of apparatus be ascertained. If it were for use at work then it was work equipment, and on that simple approach the answer was clear. Everyone using the control room door used it for the purposes of their work, Beck v United Closures & Plastics Plc [2001] SLT 1299 OH applied. On the ordinary meaning of the definition, the closer was work equipment and it could not be ­excluded from the definition by some implied qualification. Any implied exclusion of apparatus forming part of the premises in which the work took place did not apply to equipment attached to an offshore platform. Regulation 5 of The Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 ­provided that every offshore ­installation and its equipment should be so maintained as to ensure the safety of the persons thereon.

The duty was strict and did not ­distinguish between the fabric of the installation and its equipment. Moreover, after the directive came into force, the Offshore Installations and Wells (Design and Construction, etc.) Regulations 1996 dealt principally with the duty to maintain the integrity of the installation, while equipment was left to the 1998 regulations. That pointed to an intention that the 1998 regulations were to apply to all ­equipment on an offshore installation. The fact that it might be bolted down did not prevent it from being work equipment if it was for use at work. Nor could something be ‘work ­equipment’ in relation to one ­employee but not to another, Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830, [2004] ICR 1467 disapproved.

Under the directive, the duty applied to work equipment made available to workers by the employer, and the ­regulations had to be interpreted in accordance with that. In Hammond, the question should have been not whether the equipment was work equipment, but whether Mr Hammond was a worker to whom it had been supplied. The fact that S had been repairing the closer did not mean that he was not ‘using’ it. So far as the ­language and structure of the ­definition were concerned, there was nothing to suggest that ‘repairing’ should be construed narrowly or be given anything other than its ordinary meaning.

Appeal allowed.

Angus Stewart QC, Jan McCall (instructed by Drummond Miller) for the appellants; Colin Macaulay QC, Roderick Dunlop (instructed by HBM Sayers) for the respondents.