PERSONAL INJURY
Maintenance - strict liability - work equipment

Smith v Northamptonshire County Council: CA (Civ Div) (Lords Justice Waller (vice-president), Richards, Rimer): 11 March 2008

The appellant local authority appealed against a decision that it was strictly liable under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 for failure to maintain an access ramp used by the respondent employee (S) at a person's home.



S was employed by the local authority as a carer/driver. As part of her duties she was required to collect a person (C) from her home and take her by minibus to a day centre. That was an operation she had carried out many times.



As S was pushing C in a wheelchair down a ramp which led out from C's house, S stepped on the edge of the ramp which gave way causing her to stumble and injure herself. The ramp had been installed by the National Health Service some years previously. The ramp was made of wood and was left outside on a permanent basis. The ramp had been inspected by the local authority and was not in a state of disrepair such as to put anybody on notice of something being wrong.



S made a personal injury claim against the local authority, claiming a breach of the 1998 regulations. The judge concluded that the regulations applied because the ramp was work equipment, being an appliance or piece of apparatus or possibly an installation, and that it was for use at work. He found a breach of the strict liability imposed by regulation 5(1) to ensure that such equipment was maintained. The local authority submitted that the ramp was not work equipment for use at work and that the regulations were not intended to impose strict liability for lack of maintenance in relation to something over which the employer had no real control.



Held: 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 in relation to which, if some maintenance was necessary, consent to carry out the work was necessary. Parliament would not have contemplated that either regulations 4 or 5 should impose strict liability in respect of construction or maintenance on the local authority in relation to the ramp. Both regulations 4 and 5 contemplated some underlying relationship, from which it would be natural to contemplate some responsibility for construction or maintenance or at the least a right to construct or maintain, before the obligation to ensure suitability for performance or maintenance would apply, PRP Architects v Reid [2006] EWCA Civ 1119, (2007) ICR 78 considered.



The fact that something used was moveable did not make it work equipment and, because an employer allowed it to be used, it would not be natural to infer that the choice gave rise to an obligation to maintain it, which the employer had no right to do before and would have no right to do afterwards. The absence of any control by the local authority over the ramp was a factor militating strongly against its being strictly liable under the regulations for the construction and maintenance of the ramp. The local authority took it upon itself to inspect and assess the ramp. But all that it could do, if dissatisfied with the ramp, was request that it be changed and, if it was not changed, refuse to allow its employees to use it. That did not involve any true control over the ramp.



Moreover, the local authority's conduct in carrying out inspections and assessment could be explained by reference to its common law duty of care to ensure that its employees were safe in attending to C at her home or collecting her from her home. It did not provide a proper basis for the imposition of strict liability, through the operation of the regulations, for the condition of the ramp.



Appeal allowed.



Hugh Preston (instructed by Shoosmiths) for the appellant; Anthony Edward Berrisford (instructed by Thompsons) for the respondent.





HUMAN RIGHTS

Lawfulness of detention - mental health review tribunals - mental patients' rights

Secretary of State for Justice v Daniel Rayner: CA (Civ Div) (Lords Justice Ward, Keene, Mr Justice Black): 12 March 2008

The appellant secretary of state appealed against a decision on the interpretation of section 75(1) of the Mental Health Act 1983 and article 5(4) of the European Convention on Human Rights. The respondent mental health patient (R) cross-appealed against the decision.



R, a schizophrenic, had been detained in hospital and had been subjected to hospital and restriction orders under sections 37 and 41 of the 1983 act. A mental health review tribunal later directed his conditional discharge under section 73 and he was duly released. However, the Secretary of State for the Home Department recalled R to hospital under section 42(3) in June 2005, but failed to refer his case to the tribunal within one month, as required by section 75(1). The referral was made in August 2005, and the tribunal was to fix a date for a hearing between five and eight weeks from the date on which the reference was made, as required by rule 29 of the Mental Health Review Tribunal Rules 1983. The initial date arranged for a hearing was postponed. The tribunal directed R's conditional discharge at a hearing in October 2005.



R brought proceedings and claimed that the maximum of one month allowed under section 75(1) for the making of a reference by the secretary of state to the tribunal after the return of a patient to hospital was incompatible with the requirement of a speedy decision under article 5(4) of the convention, and that a declaration of incompatibility with the European legislation should be made.



The judge held that section 75(1) was compatible with article 5(4), and in giving his judgment stated that article 5(4) required an 'immediate reference' to the tribunal and that a case should be referred 'at once', and that in the circumstances the very last day that the secretary of state could lawfully have referred the case was six days after R was recalled. The judge also held that the restriction under section 75(1)(b), that a patient could apply directly to a tribunal only after six months had elapsed from his return to hospital, did not breach article 5(4) as the secretary of state's duty to refer the patient's case to the tribunal amounted to an automatic review procedure, which was sufficient to achieve compliance with article 5(4).



The secretary of state submitted that the trial judge erred in interpreting the obligation arising under article 5(4), and that there could have been no breach unless he had delayed a reference beyond one month. He also argued that it was not possible to lay down any quantified period of time that defined what was meant by a 'speedy' decision. R submitted that, if a reference by the secretary of state was to be capable of sufficing under article 5(4), it had to provide as effective and speedy a remedy as could have been achieved by the patient taking proceedings himself, which could have been immediate.



R also submitted that, in light of Rakevich v Russia (58973/00) [2004] MHLR 37 ECHR, Gorshkov v Ukraine (C67531/01) [2006] MHLR 32 ECHR and Kucheruk v Ukraine (2570/04) Unreported 6 September, 2007 ECHR, there was a need for a detained person to have direct access to the reviewing court, and automatic review no longer sufficed under article 5(4).



Held: (1) The secretary of state was generally not entitled to take the statutory maximum of one month before making a reference to the tribunal. Where the liberty of the subject was at stake, and where the action was to be seen as at least a principal method of getting the issue of the lawfulness of detention before a court, the concept of speediness required a more energetic and rapid approach. Further, as the detained person had no direct right to apply to a tribunal, it was all the more important that the secretary of state was to act with despatch. However, with regard to the immediacy of a referral, in practice it was dealt with on a case-by-case basis, as many factors could affect the timing of the hearing itself, Cottenham v UK Unreported ECHR considered. The European Court of Human Rights had refrained from spelling out a specific timeframe of general application when dealing with issues under article 5(4), Sanchez-Reisse v Switzerland (A/107) [1987] 9 EHRR 71 ECHR applied. The relevant test with regard to speed under section 75(1) was whether there had been a failure to proceed with reasonable despatch, having regard to all the material circumstances, R (on the application of C) v Mental Health Review Tribunal [2001] EWCA Civ 1110, (2002) 1 WLR 176 considered.



Although the trial judge had stated that an immediate reference was required, his conclusion that the latest the secretary of state could have made a referral was six days, was appropriate.



(2) In Rakevich, Gorshkov and Kucheruk, there had been no provision of the domestic law that required the authorities to act quickly to get the issue of the lawfulness of the detention before the courts. Further, there had been no sufficient domestic mechanism available by which a detainee could himself have challenged the legality of the detention. English domestic law gave greater protection to a patient, Rakevich, Gorshkov and Kucheruk distinguished. Such a patient had a direct right by means of judicial review to enforce the secretary of state's duty under section 75(1) to make a reference to the tribunal, and the right to use judicial review or habeas corpus to mount a direct challenge to the lawfulness of the detention, R (on the application of H) v Secretary of State for Health [2005] UKHL 60, [2006] 1 AC 441 and X v UK Unreported 5 November, 1981 ECHR considered. The patient had direct access as of right to the courts and could obtain swift redress if he was being unlawfully detained. Therefore, the restriction under section 75(1)(b) did not infringe article 5(4).



Appeal dismissed, cross-appeal dismissed.



Jeremy Hyam (instructed by Treasury Solicitor) for the appellant; Paul Bowen (instructed by Needham Poulier & Partners) for the respondent.





HOUSING

Possession claims - right to buy - secure tenancies

Manchester City Council v Dawn Benjamin: CA (Civ Div) (Lord Justice Dyson, Sir Peter Gibson, Sir Robin Auld): 13 March 2008

The appellant local authority appealed against a decision dismissing its claim for possession of a property and ordering it to convey the freehold of the property to the respondent (B) pursuant to her exercise of the right to buy. The property was a six-bedroom house. It had been let by the local authority on a secure tenancy to B's father and mother. B and her four siblings had also lived there. The tenancy had been transferred into the mother's sole name, and after her death B had succeeded to the tenancy of the property. She lived there with her infant son. None of her siblings was in occupation.



The local authority served a notice seeking possession in reliance on schedule 2 ground 16 of the Housing Act 1985, namely that the property was more extensive than was reasonably required by B. B conceded that it was more extensive than she reasonably required.



B then applied to purchase the property under the right-to-buy provisions of the act. The local authority offered her alternative accommodation. The judge held that the alternative accommodation was unsuitable on the ground that the effect of the possession order would be to deprive B of her right to buy, and held that it was unreasonable to make an order for possession in the circumstances.



The local authority submitted that: (1) the judge should have held that, in the event that he made an order for possession in respect of the property, B would be unable to exercise the right to buy the property, but that once a secure tenancy of suitable alternative accommodation had been granted to her, she would enjoy the right to buy in respect of that other property by virtue of schedule 4 paragraph 4 to the 1985 act; (2) the judge should not have held it was unreasonable to make a possession order.



Held: (1) While section 121 of the act destroyed the secure tenant's right to buy the dwelling-house made the subject of a possession order, it said nothing about the right to buy another dwelling-house not the subject of a possession order but of which the secure tenant became the tenant. The judge should not have held that the alternative accommodation was unsuitable on the ground that the effect of the possession order would be to deprive B of her right to buy, Kensington and Chelsea RLBC v Hislop [2003] EWHC 2944 (Ch), [2004] 1 All ER 1036 and Basildon DC v Wahlen [2006] EWCA Civ 326, (2006) 1 WLR 2744 considered.



(2) The judge had been wrong to infer that the main rationale for the local authority's position on seeking to recover possession of the property was its wish not to lose a six-bedroom house from its housing stock. Better deployment of the housing stock of a local authority was a relevant reason for seeking possession of an under-occupied property and it was an impermissible justification to do so simply to avoid losing a property from that housing stock, Basildon DC v Wahlen considered. However, in considering the argument relating to the better deployment of the housing stock, the judge erred in taking into account that the estate was to be transferred to a registered social landlord. He thereby treated as relevant a matter which ought not to have been taken into account.



The judge had erred in assessing the local authority's case as not being particularly strong: it did need the property in order to achieve a better deployment of its housing stock, and to transfer the property to the registered social landlord did not make it unavailable to the local authority in performing its housing functions; the right to buy was not completely lost to B if she became the secure tenant of suitable alternative accommodation. In the circumstances, the balancing exercise came down in favour of the local authority and made it reasonable to make a possession order.



Appeal allowed.



Terence Gallivan (instructed by the in-house solicitor) for the appellant; Paul Whatley (instructed by Clifford Johnston & Co) for the respondent.