|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Justice ClerkLord JohnstonLord Marnoch |
[2007] CSIH 23XA33/06 OPINION OF THE LORD
JUSTICE CLERK In the Appeal by PETER SPENCER-FRANKS Pursuer and Appellant; against KELLOGG BROWN AND ROOT
LIMITED AND OTHERS Defenders and Respondents: _______ |
For appellant: Macdonald; Drummond Miller, WS
(for Lefevre Litigation,
For respondents: R Dunlop; HBM Sayers
[1] I gratefully
refer to Lord Johnston's exposition of the background to this case and the
issues that it raises. I agree with him
and with Lord Marnoch that this action is irrelevant in relation to both
defenders.
[2] In my
opinion, the determining issue in both the appeal and the cross-appeal is whether
the door closer on which the pursuer was working at the time of the accident
was "work equipment" within the meaning of that expression in Regulation 2(1)
of the Provision and Use of Work Equipment Regulations 1998 (SI No 2306), as
amended (the Regulations).
[3] The pursuer
avers that he was engaged in repairing the door closer in the course of his
work as a mechanical technician and that he attempted to prise off the linkage
arm with a screwdriver. Counsel for the
pursuer submitted that the pursuer was at work at that time and that, since he
used the doorway while at work, the door closer was an apparatus or appliance
for use at work. It was therefore work
equipment (reg 2(1), sv "work
equipment" and "use"). Counsel put the
point in another way by suggesting that the door closer was a part of the
overall installation constituted by the oil platform itself and on that account
too was work equipment. He drew an
analogy between the door closer and the bunk ladder that was treated as being work
equipment in Robb v Salamis (M & I) Ltd (2005 SLT
523; revd, 2006 UKHL 56).
[4] In my
opinion, the term "work equipment" relates to items of the kind specified in
the definition in regulation 2(1) which the employee has for the purpose of
doing his work. The argument for the
pursuer is in substance the unsuccessful argument for the plaintiff in
[5] The bunk
ladder with which the court was concerned in Robb v
[6] In my opinion,
the true analogy in this case is with the wheel bolt on which the plaintiff was
working in
[7] Even on the
hypothesis that the door closer was work equipment, this action would nonetheless
fail, in my opinion, because at the time of the accident the pursuer was not
"using" it as work equipment in the sense contemplated by Regulations 2 and 4
(cf Hammond v Commissioner of Police of
the Metropolis, supra, May LJ at
para 25(e)).
[8] The
discussion in this case brought out several problems of interpretation to which
the obscurity of these regulations may give rise. Your Lordships have referred to certain
difficulties that may arise in connection with the definition of "use" in
matters of repair and maintenance. But on
the straightforward facts of this case, such difficulties need not, I think, be
explored. Assuming that the door closer
was work equipment, I consider that the pursuer was "using" the equipment with
which he was effecting the repair but not the
equipment that he was repairing.
[9] For these
reasons, I consider that the action is irrelevant against both defenders. On that view, the sheriff reached the right
result in his decision on the case against the first defenders, although by erroneous
reasoning; but erred in his decision on the case against the second defenders.
[10] I propose to
your Lordships that we should refuse the appeal; allow the cross-appeal, and
dismiss the action.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Justice ClerkLord JohnstonLord Marnoch |
[2007] CSIH 23XA33/06 OPINION OF LORD JOHNSTON in APPEAL By PETER SPENCER-FRANKS Pursuer and Appellant; against KELLOGG BROWN AND ROOT
LIMITED AND OTHERS Defenders and Respondents: _______ |
Act: Macdonald; Drummond Miller, W.S. (for Lefevre Litigation,
Alt: R Dunlop; HBM Sayers (Defenders and Respondents)
[10] This is an
appeal from the Sheriff at
[11] The relevant
averments of fact made by the pursuer are as follows.
"On that day one of the jobs which
the Pursuer had to carry out was inspect and repair
the door closer on the central control room door. This is a very busy door, with people going
in and out of the control room all the time.
This was because the door closer was not closing the door properly. The Pursuer wedged the door open enough to
allow people to pass through. He
inspected the door closer. The door
closer was not working. The Pursuer
decided that he would need to take the closer off of the door and take it to
the workshop where he could try to repair the closer. The Pursuer stood on a small portable stand
so that he could reach the door closer.
He wanted to assess the level of tension in the arm. In order to do this he tried to release the
tension by pushing the arm of the closer.
He required to back off the screw which held
the arm by about one half turn so that he could assess the tension. When this screw is screwed fully home, it
normally requires three or four complete turns in order to disengage it. The Pursuer was not intending to remove the
closer arm at that stage. He just
intended to look at it at that stage. As
he did so the screw holding the arm in place pulled out. The arm of the door closer struck the Pursuer
in the face".
[12] The pursuer
makes his case under the Provision and Use of Work Equipment Regulations 1998
(SI 1998/2306, as amended) ("The Regulations") which in turn replaced similar
Regulations of 1992. Both sets of
Regulations were the offspring of the Council Directive 89/655/EEC, as amended,
article 3 of which contains the following provisions under the heading
"General obligations".
"1. The
employer shall take the measures necessary to ensure that the work equipment
made available to workers in the undertaking and/or establishment is suitable
for the work to be carried out or properly adapted for that purpose and may be
used by workers without impairment to their safety or health.
In
selecting the work equipment which he proposes to use, the employer shall pay
attention to the specific working conditions and characteristics and to the
hazards which exist in the undertaking and/or establishment, in particular at
the workplace, for the safety and health of the workers, and/or any additional
hazards posed by the use of work equipment in question.
2. Where it is not possible fully so to
ensure that work equipment can be used by workers without risk to their safety
or health, the employer shall take appropriate measures to minimise the risks."
I turn now to the relevant terms of the Regulations.
[13] Regulation
2(1) inter alia, provides:
"2(1) In these Regulations, unless the context otherwise requires
- ...
'use' in relation to work equipment
means any activity involving work equipment and includes, starting, stopping,
programming, setting, transporting, repairing, modifying, maintaining,
servicing and cleaning;
'work equipment' means any machinery,
appliance, apparatus, tool or installation for use at work (whether exclusively
or not)."
[14] Regulation 3 inter alia provides:
"(3) The
requirements imposed by these Regulations on an employer shall also apply - ...
(b) ...to
a person who has control to any extent of -
(i) work equipment;
(ii) a person at work
who uses or supervises or manages the use of work equipment; or
(iii) the way in which
work equipment is used at work,
and to the extent of his control".
[15] Regulation 4(2), (3) and (4) provides, inter alia:
"4(2) In selecting work
equipment, every employer shall have regard to the working conditions and to
the risks to the health and safety of persons which exist in the premises or
undertaking in which that work equipment is to be used and any additional risk
posed by the use of that equipment.
(3) Every employer shall ensure that work
equipment is used only for operations for which, and under conditions for
which, it is suitable.
(4) In this regulation 'suitable' -
(a) ... means suitable in any respect which
it is reasonably foreseeable will affect the health or safety of any person ..."
[16] Regulation 5
provides inter alia:
"(1) Every employer
shall ensure that work equipment is maintained in an efficient state, in
efficient working order and in good repair".
[17] The pursuers'
pleadings also make reference to Regulation 22 which is, as far as relevant,
in the following terms:
"Every employer shall take
appropriate measures to ensure that work equipment is so constructed or adapted
that, so far as is reasonably practicable, maintenance operations which involve
a risk to health or safety can be carried out while the work equipment is shut
down, or in other cases -
(a) maintenance
operations can be carried out without exposing the person carrying them out to
a risk to his health or safety; or
(b) appropriate
measures can be taken for the protection of any person carrying out maintenance
operations which involve a risk to his health or safety".
[18] The cases made
respectively by the pursuer against the defenders proceed broadly upon the same
terms and Regulations, save that against the first defenders (the employer) the
pursuer founds on Regulation 22 while against the operator of the rig (the
second defenders) he relies on Regulation 3 to embrace the party other
than the employer having obligations under the Regulations.
[19] In order
properly to focus both the submissions of the parties and the Sheriff's
opinion, it is convenient at this stage to make reference to two main
authorities which featured strongly in the debate.
[20] The first is Robb v
[21] The House of
Lords subsequently allowed an appeal, currently reported at 2006 UKHL 56
dated
[22] I have to say
that since the case is concerned very much with what is meant by "work
equipment" I do not consider that this case is relevant, particularly having
regard to the concession, although in passing I would have some concern as to
whether, properly understood, a ladder, even if it is being used, is properly
to be regarded as "work equipment" in the context of entering a bunk for the
purposes of sleep or leaving thereafter before proceeding to work.
[23] Much more
importantly in the context of the present case, reference was made and much
consideration was given to the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis and Others (2004 ICR
1467).
[24] The factual
background to this case involved a mechanic employed by the first defendant who
was working on a van belonging to the second defendant when a wheel bolt he was
attempting to undo sheared off and who sustained injury as a direct
result. The plaintiff, relying upon the
previous provisions of the 1992 Regulations, succeeded at first instance on the
basis that the bolt in question was regarded by the County Court as "work
equipment" within the meaning of the definition.
[25] The appeal
succeeded and in that respect May L.J. stated as follows:
"24.
Although the definition of what
may be work equipment is to be found in regulation 2, the ambit of the
expression 'work equipment' in these Regulations is determined by
regulation 4. I am myself doubtful
whether taking regulation 2 alone, the wheel bolt was 'work equipment'
within the definition. However
regulation 4(1), it will be recalled, provides:
'The requirements imposed by these
Regulations on an employer shall apply in respect of work equipment provided
for use or used by any of his employees who is at work ....'.
This indicates, in my view, that the
Regulations are concerned with what may loosely be described as the tools of
the trade provided by an employer to an employee to enable the employee to
carry out this work. I emphasis that my
use of the expression 'tools of the trade' is intended to be illustrative and
not definitive. There plainly are many
things such as, for instance, a hoist, which may be work equipment, for which
the word 'tools' would be inapt. The
requirements of the regulation are imposed in relation to 'work equipment'
falling within the definition of regulation 2(1) which is provided by an
employer for use by his employees when they are at work. It does not apply to an object which the
employee is working on provided by others.
Thus, the car which is taken to a garage for repair is not work
equipment in the context of the garage and its employees. In the present case, the police van was not
the property of the first defendant, but of the second defendant. The van might well be work equipment of a
policeman driving it, but not of the police mechanic repairing it, at least
where the van is not the property of the employer of the mechanic. In Kelly
1999 SCLR 1025, it looks as if the track upon which the pursuer was working was
the property of the pursuer's employers.
I would reserve the question, which does not arise in the present case,
whether that is a valid distinction. If
it were not a valid distinction, I would respectfully disagree with the
decision which Lord Abernethy made in that case.
25. There
are, in my view, other clear indications that these Regulations do not extend
to that which the employee is working on as distinct from the equipment which
he is using to undertake his work. These
include the following.
(a) The
general sense of both Directive 89/655 and the 1992 Regulations is
that they are concerned with equipment which the employer provides to the
employee (or which the employee brings along himself) to carry out his work -
see especially article 3 of the Directive and regulation 4 of the
Regulations.
(b) Regulation
5(1) is not apt, in its reference to work equipment being suitable for the
purposes for which it is used, to refer to the car having its tyres changed or
the part-assembled work piece on an assembly line.
(c) The
reference to 'selecting work equipment' in article 3 of the Directive and
regulation 5(2) is not apt for the car brought in by a customer to have
its tyres changed, nor the part-assembled work piece on the assembly line. The employer does not select the car, just as
he does not within these Regulations provide it for use by his employees in
their work.
(d) Regulation 5(3) is equally inapt for the
wide construction advocated by [counsel for the claimant].
(e) Although
'use' is defined by regulation 2(1) to include 'any activity involving
work equipment', you do not 'use' something you are working on or
repairing. You do by contrast use the
equipment provided to enable you to do the work".
[26] Eadie L.J. agreed simpliciter
with May L.J. as did Brooke L.J. but he added an additional comment
summarised by what he says in paragraph 30 as follows:
"30. There
is nothing either in the Directive or the Regulations which suggests it was
intended to impose the absolute obligation created, for instance, by
regulations 5 and 6 in relation to apparatus provided by third parties on which
employees are to work".
[27] It has to be
said that the additional views of Brooke L.J. are properly to be regarded
as obiter, the ratio of the case being what is said by May L.J. with which
the other two judges both agreed.
[28] The ratio of May L.J.'s position seems
to me to be that work equipment in the context of repair does not extend to the
object upon which the repair is being effected.
The definition of "work equipment" is classified by the judges as
effectively, paraphrasing, extending only to various tools of the trade being
used for the purposes enumerated. Thus
the Court excluded both the bolt and the vehicle to which it was attached from
falling within the definition of work equipment.
[29] Leave to
appeal to the House of Lords was refused.
The case has been commented upon subsequently, particularly in PRP Architects v Reid 2007 I.C.R. 78. It is of course not binding on this Court but
it is of high persuasive authority. It
also has to be noted that reference was made in passing to a Scottish case Kelly v First Engineering 1999 S.C.L.R. 1025, a decision of
Lord Abernethy in the Outer House of this Court concerning an injury to a
workman working on a stretch of railway track, in not dissimilar circumstances
to Hammond inasmuch that a nut
holding a fish plate apparently seized and caused an injury. It is clear to me that this case, as far as
this Court was concerned, was presented with an inadequate argument and I am
not persuaded that it bears sufficient weight to be considered by this
Court. In any event May L.J.
indicated that if it had been relevant to his decision he would not have
followed it, and I therefore put the case to one side.
[30] As regards the
first defender the relevant part of the Sheriff's decision is as follows:
"[29] It
seems to me that the observations of May L.J. and Brooke L.J. on
Regulation 4 of the 1992 Regulations are of equal application to the equivalent
provision in the 1998 Regulations namely Regulation 3(2). Although the wording is slightly different
from that used in Regulation 4 of the 1992 Regulations I consider that the two
Regulations have the same effect, namely that the employer has responsibility
for work equipment supplied by him to his employee for use by his employee at
work, but not for equipment on which the employee is working which was provided
or supplied by a third party.
The distinction drawn by May L.J.
between equipment supplied by an employer to an employee and equipment supplied
by and belonging to a third party is if anything an even more valid one under
the 1998 Regulations which make new and specific provision as to the duties of
non employers in respect of work equipment.
[30] It
is clear to me that the situation as between the pursuer and his employer, the
first defenders, in the present case is essentially that described by
Lord Justice May in Hammond,
namely that the pursuer was, in the course of his employment with the first
defenders and on their instructions, working on a piece of apparatus owned and
provided by a third party, namely the installation owner. In these circumstances, in the interpretation
of a UK Statute of general application, and in the absence of any Scottish
authority I feel bound to follow the judgement of the Court of Appeal in
[31] It is to be
noted that the learned Sheriff purported to follow
[32] As regards the
position of the second defenders the learned Sheriff says as follows:
"So far as the second defender is
concerned, I consider the position to be different. It is clear, reading the pleadings as a
whole, that one of the functions of the employees of the first defenders was to
carry out maintenance and repair work on, among other things, the door and its
associated equipment which was owned by the second defenders and formed part of
their installation. The door in question
was the door to the central control room which the pursuer avers was a very
busy door. The door and therefore the
closer would be constantly used by workers on the installation in the course of
carrying out their work. I have already
indicated that the closer falls within the definition of apparatus or an
appliance, and that it would be used, in the words of the Regulation, 'at work'
by the people aboard the installation as they entered and left the control
room. In general terms it was work
equipment as defined in Regulation 2.
Although Lord Justice May indicated that 'use' did not include repair,
that, I understand, was in the context of his consideration of the liability of
an employer in terms of Regulation 4 of 1992 for equipment not provided by the
employer, owned by another and being repaired by the employer's employee".
[33] Not
surprisingly, having regard to the view that the Sheriff took of work equipment
as regards the first defenders, he allowed a proof before answer on that basis
against the second defenders as the owners of the so-called equipment.
[34] Against this
decision the pursuer lodged the following grounds of appeal:
"1. The
sheriff erred in law when he decided to dismiss the action in so far as it was
directed against the first defenders.
Having correctly identified that the door closer was work equipment
within the meaning of the Provision and Use of Work Equipment Regulations 1998,
he erred in then holding that the provisions of those Regulations did not apply
to the first defenders at the time that the pursuer was working on the door
closer. Those Regulations apply to the
maintenance and repair of work equipment which is used at work. The pursuer, and everyone else on the rig,
used the work equipment each and every time that they went through the door to
which it was attached. Once it is
accepted to be work equipment, the pursuer is entitled to the protection of
those Regulations when he was trying to repair the door closer.
2. The
Sheriff erred in law in deciding to dismiss the action in so far as it was
directed against the first defenders by basing his decision upon something
which was not argued before him. It was argued for the first defenders that
the door closer was not work equipment when it was being worked upon by the
pursuer as it was not the property of his employers. It was not argued that the door closer was
work equipment but that at the time of the repair the said
Regulations did not apply to the
first defenders. Accordingly, the
pursuer's counsel when replying to the submission for the first defenders did
not address the basis upon which the Sheriff decided the issue.
3. The
Sheriff has erred in law in that he gives no reason why the said Regulations
did not apply to the first defenders in respect of work equipment when that
work equipment was being repaired.
4. The
Sheriff has erred in law in that he has failed to consider the effect of
Regulation 22 of the said Regulations, which deals with the maintenance of work
equipment. Once it is accepted, as it
was accepted by the sheriff, that the door closer was work equipment, then the provisions of Regulation 22 apply for the benefit
of the pursuer. If the door closer is
work equipment, then it has to be capable of being maintained without risk to
the health or safety of the person who is carrying out the maintenance
operation".
[35] The second
defenders cross-appealed against the decision of the Sheriff with regard to the
allowance of proof before answer in the following terms:
"The defenders and respondents
respectfully submit that, while the learned Sheriff correctly dismissed the
action against the First Defenders, he erred in refusing to dismiss the action
insofar as laid against the Second Defenders.
Having correctly found that the
Provision and Use of Work Equipment Regulations 1998 did not apply to the door
closer in the context of the claim against the First Defenders, the Sheriff
went on to find the position otherwise with regard to the Second
Defenders. In doing so he erred. The 1998 Regulations do not extend to items
upon which a person is working (as opposed to items used by that person to
undertake such work). There is no
warrant in the 1998 Regulations for holding that the ambit of the Regulations,
so far as their application to particular items is concerned, is different as
between an employer, on the one hand, and the owner of the equipment, on the
other.
Further and in any event, in giving
his reasons for holding that the 1998 Regulations did apply to the door closer
so far as the Second Defenders were concerned, the learned Sheriff erred in
holding, at [32], that the relevant matters were within the control of the
Second Defenders. In narrating the
statutory provisions of Regulation 3(3)(b) (at
[32]), the Sheriff omits the final words, which make clear that the obligations
imposed thereby only apply 'to the extent of' the control exercised by the
relevant defender. The accident was
caused by the repair operation undertaken by the pursuer. The only way in which the Second Defenders
are said to have had relevant control is that they owned the door-closer and
requested the repair thereof. Neither
averment amounts to relevant 'control' for the purposes of the 1998
Regulations.
The case brought under the 1998
Regulations is thus irrelevant quoad
both defenders. As the 1998 Regulations
are the only ground of liability averred on record, the action should thus be
dismissed in its entirety".
Against that background, counsel for the appellant submitted
that if any equipment involved and being used by the employee was embraced by
the Regulations and as such led directly to an injury to the relevant workman,
the Regulations were breached. He
reached this conclusion by reference to Regulations 2 and 3 and
accordingly rejected
[36] With regard to
the cross-appeal he not surprisingly maintained the position as regards "work
equipment" but accepted that on a separate issue of control, given that the
second defender was not the employer, there would have to be a proof before
answer which in fact had been allowed.
[37] Mr Dunlop for
the defenders, representing both, submitted that in each context work equipment
did not include the door closer mechanism.
He maintained that the position taken up by the Court of Appeal in
[38] Assuming he
was wrong about that, Mr Dunlop submitted that in any event if it was to be
regarded as work equipment it was under repair and was therefore not in use,
the purpose of the work being carried out by the employer through the employee
was a repair of the piece of equipment.
It was neither in use nor could it be regarded as suitable if it
required to be repaired (Regulation 4).
[39] Mr Dunlop
accepted that if he was wrong in his approach with regard to the application of
the phrase "work equipment" to the door closer mechanism, then the only issue
that thereafter arose in relation to the cross-appeal was that of control which
again would have to be a matter of proof before answer.
[40] It has to be
noted that both counsel sought to argue various anomalous results of the view
opposite to their position as regards the definition of work equipment, but I
do not consider that type of approach is particularly helpful. The issue here is one entirely of statutory
construction, albeit in respect of a very difficult set of provisions when
looked at as a whole.
[41] In seeking to
resolve this matter, which I do not find easy, by reference to the terms of the
Regulations, I have to say at once that I find the notion that a fixture in a
structural building can be regarded as "work equipment" even if it has a
purpose, in this case that the door closed automatically, a somewhat strange
result. However, I am not influenced by
that point more than to make the comment.
It is for the same reason I have some doubts about the question of
whether the ladder in
[42] To my mind the
approach of the Court of Appeal in
[43] I therefore
conclude that the Sheriff was wrong to determine that the door closer mechanism
was "work equipment" and that accordingly the case against both defenders is
irrelevant under all the Regulations which are pleaded. However, since the sheriff dismissed the
action so far as laid against the first defenders, although on an erroneous
basis, his decision in that respect must stand.
The action thus requires to be dismissed against both defenders. I offer no view as to whether the additional
position taken by Brooke L.J. is necessarily correct.
[44] Given that the
point is of some importance, I am also prepared to approach the matter, upon
the basis that, contrary to what I have thus held, the door closer mechanism is
to be regarded as work equipment and the pursuer is to be regarded as at work
because he is working on the Platform at the time in terms of the relevant
Regulation.
[45] In this
respect it has of course to be recognised that included in the definition of
"use" in Regulation 2(1) is the word "repairing".
[46] However in
this context it is again important to place the context of Regulation 4
against the definitions in Regulation 2, since at all times the purpose I
consider of the application of the phrase "work equipment" is to protect the
workman using such equipment. This might
embrace routine maintenance or cleaning or even minor repairing while the
machine is operating (cf English v North Lanarkshire Council 1999
S.C.L.R.310). What in my opinion it
could never embrace is a situation where work is being carried out of a major
repair nature designed to return the equipment to a workable and safe
state. This is what I consider the word
"suitable" must be construed to mean in Regulation 4, otherwise a circular
situation is reached whereby the breakdown of machinery which requires to be
repaired still renders the employer exposed to the terms of the relevant safety
regulations as regards equipment being repaired. It is plain that Regulation 5 is
designed to embrace an obligation to maintain and repair at a time when the
machine in question is not otherwise in use.
By definition in seeking to remove the door closer mechanism, which is
what the pursuer was doing at the time of the accident, he cannot be said to be
using it for a purpose connected with work as understood by the definition of
"use". He is effecting an action of
repair which is entirely removed from the normal working of the machine.
[47] It follows
that if it had been required to determine the matter on the basis that it was
"work equipment", I would have reached the same conclusion that there was no
statutory breach.
[48] I should add
that the issue of certification of counsel before the Sheriff, which
inadvertently had not been dealt with in the lower Court ,was
still alive; but given the result, on
which we are agreed, that is no longer the case.
[49] I agree that
the appeal and the cross appeal should be dealt with as your Lordship in the
chair has proposed.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Justice ClerkLord JohnstonLord Marnoch |
[2007] CSIH 23XA33/06 OPINION OF LORD MARNOCH in APPEAL By PETER SPENCER-FRANKS Pursuer and Appellant; against KELLOGG BROWN AND ROOT
LIMITED AND OTHERS Defenders and Respondents: _______ |
Act: McDonald; Drummond Miller, W.S. (for Lefevre Litigation,
Alt: R Dunlop; HBM Sayers (Defenders and Respondents)
[50] In agreeing
that the appeal should be refused and the cross-appeal allowed, I wish to add
just a few words of my own.
[51] In the first
place, I respectfully adopt the reasoning of May L.J. in Hammond v Commissioner
of Police of the Metropolis [2004] E.W.C.A. Civ. 830; [2004] I.C.R. 1467 in holding that "work
equipment" for purposes of what are now the 1998 Regulations is concerned with
what can loosely be described as "tools of the trade" rather than with
miscellaneous objects which come to be worked upon incidentally with the use of
such tools. Although there was some discussion
in that case about the possible importance of such objects having been
"provided" by a third party I do not, myself, see that consideration as
determinative and I do not think that the ownership of an object is in any
event determinative of who should be seen as "providing" it to the employee.
[52] The position
in the present case is, however, rather different in that counsel for the
appellant did not suggest that the door closer became "work equipment" simply
because it was being worked upon but rather because it was part of the Oil
Production Platform which, as a whole, in effect constituted the appellant's
workplace. It was thus, he said,
indistinguishable from the bunk ladder held to be "work equipment" by the Extra
Division in Robb v Salamis (M & I) Limited 2005 S.L.T. 523.
[53] For my own
part, I find the decision on this matter in Robb
less than wholly convincing and I note that it proceeded on the important
concession that a ladder which provided access or egress elsewhere on the
Platform, where operations were being conducted, could properly be seen as "work equipment", - a concession as to
the validity of which I would wish for the time being to reserve my
opinion. Counsel for the respondent
submitted that the door closer was in any event different in kind from a
ladder. Indeed, it was incapable of
being "used" by employees in any meaningful sense since it only operated after
the employee had passed through the door in question. Whatever else, this submission certainly
emphasises the artificiality of what I may describe as the "all embracing
approach" and, were it necessary to do so, I would give effect to it.
[54] But, even
assuming for present purposes that the door closer did constitute "work equipment", the question remains whether it
can be said that the appellant was at the time "using" it in that capacity for
purposes of Regulation 4. In this
connection, counsel for the appellant relied, not unnaturally, on the fact that
the definition of "use" in Regulation 2 expressly includes, inter alia, "repairing, modifying,
maintaining, servicing and cleaning".
Moreover, although, rather surprisingly, the case was not cited to us, I
take note that in English v North Lanarkshire Council 1999 S.C.L.R.
310 Lord Reed, in a fully reasoned opinion, held that Regulation 5(1) of the
1992 Regulations (of which Regulation 4(1) of the current Regulations is the
equivalent) covered "not only the suitability of a meat-slicing machine for the
purpose of slicing meat safely, but also as covering its suitability for being
cleaned safely".
[55] In my opinion,
however, when the Regulations are looked at in their entirety and Regulation 2
is read in its overall context, it becomes clear that, while Regulation 4
can certainly encompass "use" by "repairing, modifying, maintaining, servicing
and cleaning", the intention is that this is only where such use can be seen as
routine, such as where the ordinary employee is expected to do these things as
ancillary or incidental to the main day-to-day use of the "work
equipment". That, it seems to me, is
quite distinct from the specialised repair (involving dismantling) in the
present case which, on his own averments, the appellant was carrying out in his
capacity as a "mechanical technician".
In that situation, and on the present hypothesis, I am of opinion that the
first defenders, as the appellant's employers, were doing no more and no less
than attempting to comply with Regulation 5(1), namely to "ensure that work
equipment is maintained in an efficient state, in efficient working order and
in good repair". In so far as the
appellant's pleadings rely on Regulation 4 and Regulation 5(1) they are
accordingly, in my opinion, on any view irrelevant.
[56] Lastly, lest
it be thought that I have overlooked either matter, I would record that in the
present case the appellant, for some reason not immediately apparent to me,
makes no case under Regulation 4(1) of the 1998 Regulations. That said, we heard
no argument as to the significance, if any, of that omission. On the other hand, Regulation 22 is founded
on in the appellant's pleadings but was not referred to by counsel for the
appellant in his opening speech. Counsel
for the respondents' position was that that Regulation was on any view
inapplicable and that the averments about it were clearly irrelevant. Counsel for the appellant did not demur to
that submission in his reply.
[57] For all the
foregoing reasons, and for the other reasons given by your Lordships, I am
satisfied that in this case the averments of the pursuer and appellant against
both defenders are, as matter of law, irrelevant.