For the strict liability provisions of these Regulations to come into effect when an employee is injured whilst using “work equipment” which has not been provided by his/her employer the employer must have given express or implied permission for the equipment to be used. So held Smith LJ in the Court of Appeal in Couzens v T McGee and Co Ltd.
I know we all have perfect hindsight but this seems like an odd case to run. The driver was employed to remove spoil from the Wembley Stadium construction site. He needed a tool to scrape mud off his lorry wheels and out of corners of the tipper. Colleagues tended to use a trowel or similar implement. The claimant found an L shaped piece of angle iron about 17 inches long. When not in use he stored it in the pocket of the driver’s door of his tipper.
About a month before his accident he got his leg caught on the iron and couldn’t move his foot from the accelerator to the brake peddle. He avoided accident but did not report the incident. Neither did this scare put him off his practice. Another accident occurred – the driver this time tipping the lorry over because it was traveling too fast – once again his leg was caught by the angle iron and he couldn’t hit the brake peddle.
The claimant alleged his employers were in breach of regulation 4 of PUWER 1998. The Court of Appeal rejected this. The claimant’s personal injuries were not attributable to his employer. Following Smith v Northamptonshire County Council the court held that the employer had to have a sufficient degree of control over the equipment before the regulations could apply. As it had been held at first instance that the employer was unaware of the claimant’s practice they could not have that control.
The Court of Appeal also cited with approval the decision in Spencer-Franks v Kellogg Brown and Root Limited which in turn cites Knowles v Liverpool City Council, a case readers will know as being dear to my heart!
