Another Door Closes For Defendant Employers!

The House of Lords handed down judgment on 2 July 2008 in

the Scottish case of Spencer- Franks -v- Kellogg

Brown and Root Limited and Others (2008) UKHL 46, which

heralds a change of interpretation in how the Courts should

look at whether an employer has breached the Provision and Use

of Work Equipment Regulations ["PUWER"] 1998, which

replaced the previous PUWER 1992 regulations.

Facts

On 12 October 2003, the closer of a door in the control room

of a North Sea oilrig was not working properly. Talisman Energy

were the operators of the rig, and had contracted for KBR to

supply workers to work on the rig. The Claimant, a mechanical

technician employed by KBR, was asked to inspect and repair the

door closer, which consisted of a spring mechanism attached to

the door and which was connected by a linking arm to the door

frame. The Claimant attempted to assess the tension in the

linkage arm by backing off by half a turn, the screw that held

it to the doorframe. This should not have disengaged the screw,

but in fact the screw was pulled out and the arm hit the

Claimant in the face removing 4 of his teeth.

Previous Case Law

The PUWER 1998 imposes an absolute duty on employers to

ensure that equipment being used in their workplace is

maintained in an efficient state, in efficient working order

and in good repair. This has been the position since the

well-publicised Court of Appeal decision in Stark -v-

The Post Office (2000) determined under PUWER 1992. Mr

Stark, a postman, was injured when he was flung from his

bicycle as a result of a failed cable. It mattered not that the

Post Office was found to have exercised reasonable care in

implementing a programme of inspection and maintenance, nor

that it was unlikely such inspection or routine maintenance of

the bicycle would have revealed the problem and led to the

replacement of the "defective" part. The Court of

Appeal determined that the statutory duty to maintain the

bicycle in an efficient state, and in efficient working order

was breached at the moment the brake cable snapped.

But what about the situation in which the work equipment

apparatus was being worked on (i.e. repaired) as opposed to

being used? In Hammond -v- Commissioner of Police of

the Metropolis (2004) a mechanic, employed by the

Commissioner of Police, was working on the wheel of a police

dog van when a wheel bolt sheered off causing the mechanic to

suffer injury. The Court of Appeal held that PUWER 1992 did not

extend to equipment...