Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998
Ball v Street [2005] EWCA Civ 76
Earlier this year, I asked the question (see [2005] Gazette, 17 February, 24): how would the courts square the approach of the House of Lords in Fytche v Wincanton Logistics [2004] ICR 975 and the narrow interpretation of maintenance of personal protective equipment, with the wider approach used in the Provision and Use of Work Equipment Regulations 1998 (PUWER)? In this case, the Court of Appeal provided an answer.
The court held that foreseeability of injury was not relevant to a breach of regulation 5(1) of PUWER. The regulations focused on a general consideration of safety against the broad risk of accidental injury inherent in the use of machinery that is not maintained in an 'efficient' state. This contrasted with the approach that the defendants tried to put forward in relation to the decision in Fytche.
The Court of Appeal held that its view, that the strict liability of regulation 7(1) of the Personal Protective Equipment Regulations (PPE) only applied to specific risks against which the protective equipment was provided, was consistent with the wider interpretation of strict liability in work equipment cases. This was because, within the PPE, employers have a responsibility to conduct an assessment of whether the PPE provided is suitable for the risk against which it is to protect. There is no such assessment required within the PUWER.
In the instant case, the claimant suffered injury when part of the hay bob machine that he was using in the course of his employment as a farmer fractured and a piece ricocheted off and entered his left eye, causing loss of sight. It was agreed by the parties that the accident happened in the way described and that it was known that this failure in the machine could happen. The prospect of the piece of metal flying off the machine in a downwards direction, hitting a rubber tyre and then flying upwards and entering a worker's eye was classed as a 'freak accident' by the trial judge.
In finding for the defendants, he held that the work equipment was maintained in an 'efficient state' and, therefore, satisfied regulation 5(1) of PUWER because the machine was still capable of continuing working in an overall effective and efficient manner even with the failure of the expanding spring mechanism. Secondly, the accident was unforeseeable and not of the type that could have been identified as a risk. Thirdly, the application of strict liability only applied to an identified risk, which this was not.
The Court of Appeal unanimously overturned the decision, accepting that the old Factories Act legislation from 1937, which was held to create strict liability by the House of Lords in Galashiels v Miller, was now present in regulation 5(1) of PUWER. In short, the employee only needs to prove that the equipment failed to work efficiently and that that failure caused the accident.
Therefore, the Court of Appeal has confirmed perhaps what we already knew, namely:
Defining 'efficient'
Lewis v Avidan Ltd [2005] EWCA Civ 670
A burst pipe flooded the floor surface of the claimant's place of work, causing her to slip and suffer injury.
The case concerned interpretation of regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992, which states: 'The workplace and equipment, devices and system to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.'
The wording of the regulation mimics regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 in relation to maintaining equipment in an efficient state. The code of practice to the workplace regulations and the code of practice and guidance to the work equipment regulations identify that 'efficient' is not concerned with profitability (work equipment) and is to be considered from the view of health, safety and welfare (workplace).
With such broad similarity in relation to the wording of the regulations and guidance as to their interpretation, one would have hoped that the Court of Appeal would exercise a degree of consistency in the application of the regulations. Unfortunately, the decision in this case flies in the face of the decision in Ball v Street.
Lord Justice May said he was 'prepared for the moment to assume' that the pipe that burst was 'equipment, a device or system' to which regulation 5(1) applied, and further that the regulation gave rise to strict liability. So far, so good.
However, he dismissed the appeal on the basis that the flood that the burst pipe created did not mean that the workplace was not maintained in an efficient state, as the phrase was associated with 'efficient working order and good repair'. The most damning sentence of his judgment is that 'the mere fact of a flood does not mean that the floor is not maintained in an efficient state'.
This is astonishing. The Court of Appeal in Ball quite clearly identified that the term 'efficient' was not to be limited to productivity. Lord Justice Longmore helpfully commented that: 'The obligation to maintain equipment at work is only partly to maintain it in the state in which is was suitably provided in the first instance but must also extend to maintaining it in a state in which the worker is not, in fact, to be injured.'
The judgment in Lewis does the Court of Appeal no favours. The failure to provide clear guidance to practitioners on the interpretation of the key word 'efficient' in relation to two similar regulations that began life at the same time in 1992 will only result in more litigation. The fact that a different Court of Appeal may have found for the claimant undermines the court's authority in relation to the interpretation of these important statutes.
By Simon Allen, Russell Jones & Walker, Sheffield
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