Articles

Mason v Satelcom An Outbreak of Common Sense?

Date: May 14, 2008

Expertise: Insurance & Reinsurance

In judgments handed down today in Mason v Satelcom, the Court of Appeal has taken a fresh look at the nature and extent of statutory duties owed by non-employers to workers injured while working on their premises. In particular, a Court comprising LJJ’s Ward, Longmore and May has shed much light upon the concept of control sufficient to found liability when the use of a piece of work equipment for unsuitable purposes has led to an injurious fall from height. It is a decision which will bring joy to public liability insurers resigned to a perception of near absolute duties imposed by the “six-pack” regulations. In what many will see as an outbreak of common sense, use of work equipment in a silly way will not, on facts comparable to the instant case, give rise to liability upon a non employer even though that person had control of it.
The facts giving rise to the claim were far from the extraordinary. M is sent by his employer, S, to maintain some IT equipment installed in a server room owned and occupied by East. The equipment is in a cabinet 8 feet from the floor and belongs to a tenant of East. A 5 foot ladder rests invitingly against the wall below it. M considers the ladder to be there for the purpose of getting up to the cabinet and, leaning back from it to work in the cabinet, overbalances and steps awkwardly down, sustaining a significant back injury.
The trial judge, HHJ Reddihough, sitting in the QBD, was no stranger, when in practice, to the highways and byways of the statutory regulation of workplace health and safety. He found S liable to M in negligence and for breach of statutory duty but adjudged S to have been contributorily negligent to the extent of 1/3. He also found East liable for breach of statutory duty under the Provision and Use of Work Equipment Regulations 1998 as a person (not being an employer) who had control of work equipment which is used in a foreseeably unsuitable way, and obliged to contribute 25% to such compensation as M had proved himself entitled.
The members of the Court acknowledged some challenge in negotiating the language and intention of the Regulations as they apply to, and impose duties upon, non-employers. Ward LJ professed he found the Equipment Regulations to be “not easy to construe”; while May LJ began his judgment:
“There is a risk that lawyers, including judges, being obsessed with the meaning of abstruse secondary legislation, may lose sight of the real world.”
The appeal (together with a cross appeal relating to the construction of the Workplace (Health Safety and Welfare) Regulations 1992 was considered against a backdrop of facts found and unchallenged. East kept the server room locked; its employee gave M access to it; East knew it had a ladder in there which anyone might use to gain access to the cabinet; the ladder was sturdy and steady and was able to be used by M without being moved; the cabinet was sited high to serve East’s convenience; East had control of the ladder (in the sense that it could have removed it at any time) but it did not control the way in which M used the ladder nor did it have an interest in the work being done on the tenant’s equipment.
The principal issue on the appeal was the application of the Equipment Regulations and their causative breach by East. There is, of course, no problem with the imposition of duties upon an employer:
“The requirements imposed by these regulations on an employer shall apply to such equipment provided for use or used by an employee of his at work” [Reg 3(2)]
The more tortuous language relates to the duties by others; for relevant purposes:
“The requirements imposed by these regulations on an employer shall also apply… to a person who has control to any extent of work equipment… to the extent of that control” [Reg 3 (3)(b)(i)]
For the trial judge, having a ladder locked up in your server room was sufficient control for the regulations to bite and for East to be in breach of Regulation 4(1) and (4)*. On his analysis, the ladder was too short and demonstrably unsuitable for the task for which M used it.
The view of May LJ was that such a proposition “that East should be partly responsible for the accident, by strict application of a regulation mainly about employers… is in the real world close to being absurd.”
The Court of Appeal took a more sophisticated approach to the regulations’ application, paying close heed to the near juxtaposition of “control to any extent” and “to the extent of that control”. The Court concluded that control was not total – since East did not control the way in which the ladder was used by M. For Longmore LJ, the purpose of control is determinative:
“In my judgement, one has to ascertain in relation to a non-employer, whether there was a purpose for which he has such control as he has” [para 13].
Longmore LJ agreed with the trial judge that there was physical control over the ladder but such control was insufficient to import obligations under the Equipment Regulations. There was no evidence that East actually owned the ladder and, in those circumstances,
“..it is difficult to say what the purpose of East’s control was beyond the purpose of ensuring it did not get in anyone’s way” [para 13]
The approach of the Court was informed by concern as to the scope of obligations imposed by Regulations 4 onwards of the Equipment Regulations – including criminal sanction for their breach of such matters as not only suitability and maintenance (Regs 4 and 5) but also imparting health and safety information, instructions and training (Regs 6, 8 and 9). Whatever was the purpose of East’s control, it was not, in Longmore LJ’s judgment, for the purpose of ensuring that it was constructed or adapted so as to be suitable for the purpose for which it was foreseeably used.
May LJ considered that regulation 3(3)(b)(i) applied only to the physical state of the relevant work equipment, continuing:
“… but it is certainly limited to the extent to which the person has control of the equipment itself as distinct from the way in which it is used.”
He felt fortified by the alternative types of control that can trip application of the Equipment Regulations – control over the person using or managing or supervising the use of work equipment [3(3)(b)(ii)] and control over the way work equipment is used [3(3)(b)(iii)]: happy to conclude the regulations do not apply to East “and good sense prevails”.
Ward LJ railed against a construction of Regulation 3(3)(b) which imposes the entire raft of obligations in Regulations 4 to 33 on someone having control of work equipment which is used by a worker who is not their employee. The argument being, in East’s case, that since they had physical control of the ladder by keeping it locked in their server room, they were deemed to be an employer with all the obligations that follow in Regulations 4 to 33. This result would be, in his view, absurd.
Ward LJ acknowledges that “employer” has a limited meaning in the Framework Directive [89/391/EEC], and its relevant daughter, the Workplace Equipment Directive [89/655/EEC]. There, “employer” and “worker” are limited to the parties to employment relationship in the strict sense. On the face of those Directives, East would not fall within their purview at all. The fact that Regulation 3 of the Equipment Regulations imposes obligation upon persons additional to employers (i.e. the self employed and those persons with requisite control) by Regulation 3(3)(a) and (b) is both relevant and critical. It should inform construction of Regulation 3 in resolving any ambiguity by limiting the ambit to Regulation 3(3) to those who are as close to the real employer as can be contrived.
In Ward LJ’s judgment, it is vital to look at the wider purpose of the Equipment Regulations. He continues: “In essence they are directed at the true employer/employee relationship where the employer has control over the work equipment itself, over the workers who are to use it and over the way it is to be used. The quasi employer’s responsibility should be seen in the same way. In other words, if the equipment itself poses a threat to the health and safety of those who use it, those who control the equipment can expect to be responsible for the safe working of the equipment.” (para 51)
A solution, whereby the words in Regulation 3(3)(b) “to the extent of his control” would be transposed into each of the duty sections he rejected since the language would not support it. As he recognised:
“He either is or is not an employer as defined in 3(3)(b). If he is, the duties are owed and there is no room for qualification.” (para 46)
His preferred solution was to read words into Regulation 3(3)(b) to enable a construction to be given which make sense to those in the trade while giving protection to the safety of workers. The relevant part of Regulation 3(3) thus extended would read:
“The requirements imposed by these regulations on an employer shall also apply… to a person who has control to any extent of work equipment… to the extent of that control insofar as the particular matters hereinafter set out relate to and are with his control”
Although it was Ward LJ who dictated this effective extension of regulation 3(3)(b), May LJ expressly adopts his reasoning.
This device enables focus to be given to the scope of a person’s control for the purpose for which he has to exercise that control. The relevant question then becomes:
“Did East have control of the ladder so as to be able to control whether it would be used in a particular way?” Answer “No”. Ward LJ concluded:
“East’s control of the equipment posed no risk because the ladder qua ladder was a perfectly good ladder. It only became unsuitable because the claimant used it in a silly way.”
The case of Mason is a good example of the Court having to go to some lengths to construe a piece of secondary legislation whose language might, at first blush, produce a result that is thought to be absurd. The Court’s extension of Regulation 3(3) is significant, bold and, arising as it does in relatively commonplace circumstances, sweet music to insurers of public liability risks.
* 4(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
(4)(a) In this regulation “suitable” means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person

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