The House of Lords has upheld the Court of Appeal’s ruling in Smith v Northamptonshire County Council by a three to two majority. The case involved the interpretation of the Provision and Use of Work Equipment Regulations kk
The appellant was employed by the Northamptonshire County Council as a driver and carer. She would collect clients in need of care from their homes and take them by to a day centre. One client was confined to a wheelchair. To get her out of her house Mrs Smith had to take her down a wooden ramp outside the doors which led from the living room to a patio. It had been placed there about ten years earlier by the National Health Service. Mrs Smith had done this many times without incident. But on 1 December 2004 an edge of the ramp crumbled beneath her foot, causing her to stumble and sustain injury.
The Council conceded that the ramp was “work equipment” but denied that it was “provided for and used at work” within the meaning of the Regulations and therefore that the strict liability for defective equipment under regulation 5(1) did not apply.
Lords Mance, Neuberger and Carswell dismissed the appeal. Dissenting opinions were given by Lord Hope and Baroness Hale. Lord Mance held :
69. The Regulations are not on any view an all-embracing protection which renders superfluous, at places with which an employer has no connection except that his or her employee has while working to visit them, the Occupiers’ Liability Acts or ordinary common law duties of care or such other duties as may in this case have been owed by the National Health Service as suppliers of the ramp. Courts should be careful not to impose on employers responsibilities which go far beyond those at which the Directive and Regulations can in my opinion have been intended to impose. The judge’s (over) generous interpretation of the concept of control would, if accepted, add both unjustified stringency and undesirable uncertainty into this area.
70. It is of course true that the council inspected Mrs Cotter’s home and prepared Personal Handling Plans – Transport dated 14 November 2001 and 9 February 2004, in each case identifying the means of access as the French windows where the ramp stood, though not referring expressly to it. In making such inspections, the council observed nothing amiss with the ramp, because any defect was latent. What that shows is that the council was careful, not that it controlled the ramp or incorporated it into its undertaking, or should be strictly responsible for any defect in it. The ramp was someone else’s equipment on someone else’s premises visited by its employees while at work. “I am monarch of all I survey” is not to be taken literally as opposed to literarily. In carrying out the inspection, the council was simply fulfilling its duty under regulation 3(1) of The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) to “make a suitable and sufficient assessment of – (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work”. Performance of that duty cannot have the Catch 22 consequence of making the council strictly liable for latent defects in equipment which they did not provide, which was not part of its undertaking and which it had no obligation to provide or repair.
Thompsons acted for the appellant and Shoosmiths acted for the defendants.
