Spencer Franks v Kellogg Brown & Root Ltd 2008 SLT
675
Aberdeen is a fertile place from an agricultural and oil and gas
point of view and also as a source of cases for the House of Lords
to consider. Following hot on the heels of the Robb v
Salamis (2007 SC (HL) 71) case in which an offshore worker
fell out of his bunk bed we have the Lords considering the case of
Spencer Franks v Kelloggs Brown & Root Limited (2008
SLT 675) which involved a dangerous door closer on an oilrig. The
Lords found the operators of the oilrig liable to Mr Spencer Franks
and in doing so disapproved of the approach taken by the Court of
Appeal in Hammond v Commissioner for Police of the
Metropolis (2004 EWCA Civ 830). As many of you may recall the
Hammond case suggested that the Provision & Use of Work
Equipment Regulations 1998 (PUWER) do not apply to things being
worked on but rather to things being worked with, the so called
'tools of the trade' distinction.
Although the Spencer Franks case may be seen as
specific to the somewhat unusual nature of oilrigs the Lords in
disapproving of Hammond have opened up again the question
of the extent to which employers are liable under PUWER for
injuries caused to employees by equipment they have not provided.
This is a particular concern because a number of the PUWER
Regulations are strict liability.
Mr Spencer Franks was sent by his employers to an oilrig where
he was asked to repair a door closer. He suffered facial injuries
when the door closer sprang back suddenly whilst he was working on
it. A case was brought against both his employers and the operators
of the oilrig under PUWER. It was argued on behalf of Mr Spencer
Franks that the door closer was work equipment, that it was not fit
for purpose and that as a result both his employers and the
operators of the rig were strictly liable.
The case was initially heard at Aberdeen Sheriff Court where the
sheriff dismissed it insofar as it related to Mr Spencer Franks'
employers on the basis that they had not "provided" the door closer
for his use in terms of Regulation 3. He however allowed the case
against the rig operators to proceed as he felt they had control
over the door closer in terms of the Regulations.
Both sides appealed to the Court of Session and the Judges in
the Inner House, following Hammond, dismissed the case in
its entirety on the basis that the door closer could not be work
equipment as it was the item being worked on rather than a
'tool of the trade' .
Mr Spencer Franks appealed further to the House of Lords who
found unanimously in his favour. Although the Lords took fairly
individual approaches to the case broadly speaking they seem to
accept that the tools of the trade restriction applied in the
Hammond case is an artificial one. The suggestion from
Hammond that the van in question could be tools of the
trade for the dog handler who drove it but not for the mechanic
employed by the Metropolitan Police who repaired it did not appeal
to the Lords. Their view was that if something fulfilled the
definition of work equipment it was work equipment for all. They
suggested that the starting point was to ask what is the piece of
equipment actually used for? If it was used for work then it was
work equipment.
In the Spencer Franks' case the Lords had no difficulty
in accepting that the door was work equipment as it was the only
means of access/egress to the oilrig's control room. The fact that
the door closer was attached to the door didn't seem to the Lords
as any reason for it not also to be seen as work equipment. Having
unanimously held that the door closer was work equipment the Lords
had no difficulty in finding the operators of the oilrig had
control over it and therefore in terms of Regulation 3 were
strictly liable to Mr Spencer Franks.
Unfortunately they did not have to consider the more difficult
question of whether Mr Spencer Franks' employers would have been
liable under PUWER because by the operation of an indemnity if the
operators of the rig were liable the employers would have to pick
up the tab.
The Lords recognised that by disapproving of Hammond
they were opening up the question of the application of the
Regulations again and Lord Rodger gave perhaps the most
consideration to the possible implications for employers. Lord
Rodger recognised that the definition of work equipment was wide
and asked whether there were any restrictions elsewhere in the
Regulations. He looked at Regulation 3 and the terms in relation to
employers of equipment provided for use or used by
employees at work. He recognised that this could apply to pretty
much anything an employee touched during the working day whether
provided by his employer or not. Appreciating this would be a cause
for concern he suggested that a way forwards might be to ask the
question of 'whether the piece of equipment performed a useful,
practical function in relation to the purpose of the
undertaking.'
Lord Rodger's approach also found favour with Lord Mance but he,
along with the other Lords accepted that 'the difficult exercise of
identifying the outer parameters of these Regulations application
requires further thought and more detailed submissions on another
occasion.'
We will be looking for the next decision on this matter which we
hope will come quickly and will clarify what is a complex
question.
To illustrate the problem with the interpretation of the
Regulations at present consider the following scenario. If James
Bond had a puncture whilst driving his original Aston Martin and
took it to the local garage for repair, would the garage operator
be liable under PUWER if a mechanic cut his hand on the diamond
tipped spinners inserted in the wheels? If the courts take a
literal interpretation of the term "use" from PUWER then the answer
might be yes. Alternatively if Lord Rodger's suggestion of a
limitation based upon whether the item performs a useful practical
function in relation to the purpose of the undertaking's business
then the answer would probably be no.
Although the decision in Spencer Franks is clearly
important it is perhaps a situation of one step forward and two
steps back.