Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland), (2008)

 
FREE EXCERPT

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 46

on appeal from: [2007] CSIH 23

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland)

Appellate Committee

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Lord Neuberger of Abbotsbury

Counsel

Appellants:

Angus Stewart QC

Jan McCall

(Instructed by Drummond Miller LLP )

Respondents:

Colin Macaulay QC

Roderick Dunlop

(Instructed by HBM Sayers)

Hearing date:

21 and 22 APRIL 2008

ON

WEDNESDAY 2 JULY 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland)

[2008] UKHL 46

LORD HOFFMANN

My Lords,

  1. In 2003 the pursuer Mr Spencer-Franks was employed as a mechanical technician by Kellogg Brown and Root Ltd (“KBR”), then a subsidiary of Halliburton, the multi-national company based in Texas which, among other things, supplies services to the offshore oil industry. KBR contracted to supply workers to operate the Tartan Alpha platform in the Scottish sector of the North Sea, which was operated by Talisman Energy (UK) Ltd (“Talisman”), a subsidiary of a Canadian oil company. The pursuer was one of the workers which KBR supplied to work on the platform.

  2. On 12 October 2003 the closer on the door of the central control room was not working properly and the appellant was asked to inspect and repair it. The closer consists of a spring mechanism attached to the door and connected by a linkage arm to the door frame. According to the pursuer’s averments, which must for the purposes of this appeal be taken as true, he decided to remove the closer and take it to the workshop for repair. Before doing so, he tried to assess the level of tension in the linkage arm by backing off by half a turn the screw which held it to the door frame. This should not have disengaged the screw. In fact the screw pulled out and the arm struck the pursuer in the face. He lost four teeth which had to be replaced by implants.

  3. The pursuer raised an action against KBR and Talisman in the sheriff court in Aberdeen, claiming that each of them had been in breach of its obligations under the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (“the equipment regulations”). These regulations replaced the Provision and Use of Work Equipment Regulations (SI 1992/2932) (“the 1992 regulations”) and they were both intended to implement Council Directive 89/655/EEC (“the equipment directive”).

  4. Regulation 3 of the equipment regulations delimits the scope of the duties which they create:

    “(2) The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work.

    (3) The requirements imposed by these Regulations on an employer shall also apply…(b)…to a person who has control to any extent of - (i) work equipment…to the extent of his control.”

  5. The pursuer says, first, that the door closer was “work equipment". This is defined by regulation 2(1) as—

    “any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)”

    The pursuer says that the door closer was a piece of machinery or apparatus for use at work. People working on the platform were using it every time they entered or left the control room. Secondly, the pursuer says that the duties imposed on his employer by regulation 3(2) apply to the door closer because it was “used” by an employee at work. Regulation 2(1) defines “use” to include any activity involving work equipment, including “repairing…maintaining, servicing". So it was being used by the pursuer as repairer and by any other KBR employees who went through the door in the course of their work.

  6. The relevant substantive duties are in Regulation 4, which provides:

    “(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) In this regulation ‘suitable’ means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.”

  7. For the purpose of this regulation, “employer” is defined in article 2(1) to include a person who is not the employer but upon whom duties are imposed by regulation 3(3)(b). There is no dispute that the liability created by this regulation is strict. The employer must “ensure” that the work equipment is suitable. It is not enough to take reasonable steps to do so. The pursuer says that the door closer was work equipment and that it was not suitable for use in a way which would foreseeably affect his safety. It was attached in such a way that the arm would fly off unexpectedly and hit one in the face.

  8. That, in summary, is the pursuer’s case. The defenders took pleas to the relevancy on the ground that the door closer could not be work equipment within the meaning of the regulations. The sheriff sustained the plea of KBR, the employer, on the ground that although the door closer was “work equipment", the employer had no control over it and the regulations therefore did not impose responsibility upon it. On the other hand, Talisman, the operator, did have control. He therefore repelled their plea to the relevancy and allowed the pursuer’s proof.

  9. Both the pursuer and Talisman appealed. The Second Division of the Court of Session, took the view that the door closer was not “work equipment” or, even if it was, that the pursuer was not “using” it within the meaning of the regulations. They therefore dismissed the pursuer’s appeal and allowed KBR’s appeal. The pursuer appeals to your Lordships’ House.

  10. My Lords, let us first consider the question of whether the door closer was work equipment. The equipment regulations were intended, as I have said, to implement the equipment Directive, although, as the explanatory note points out, the provisions of regulation 3(3) to (5), which place duties upon non-employers having control of work equipment, go beyond what the Directive requires. The definition of work equipment in the Directive is “any machine, apparatus, tool or installation used at work.” The definition in the equipment regulations, which I have already quoted, uses the words “for use at work.” I imagine the change was made to forestall literalist arguments that a defective machine which caused injury while it was not actually being used was not work equipment. The domestic definition requires one to ascertain the purpose of the apparatus etc. What is it for? If it is for use at work, then it is work equipment.

  11. If one takes this simple approach, then the answer seems to me to be clear. Everyone using the control room was using it for the purposes of their work. They used the door to enter or leave the control room. And in doing so, they used the closer. Its purpose was for use at work. Giving the definition its ordinary meaning, the closer was work equipment. The question is whether it can be excluded by some implied qualification.

  12. One possibility is that the equipment regulations impliedly exclude apparatus which forms part of the premises upon which the work takes place. The state of premises is treated separately from equipment by the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004). In the case of ordinary work premises on land, this might be a good argument. But I do not think it applies to equipment which is attached to an offshore platform. Regulation 5(1) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 (SI 1976/1019) provided in general terms that —

    “All parts of every offshore installation and its equipment shall be so maintained as to ensure the safety of the installation and the safety and health of the persons thereon.”

  13. This made no distinction between the fabric of the installation and the equipment. The duty applied equally to both. And the liability which it creates is strict: Breslin v Britoil plc 1992 SLT 414. After the equipment directive came into force, the duties of the owners or operators of offshore installations were divided between two regulations. One is the Offshore Installations and Wells (Design and Construction etc) Regulations 1996 (SI 1996/913), which deals principally with the duty to maintain the “integrity” (defined as “structural soundness and strength, stability and…buoyancy” of the installation) but also has certain “additional requirements” similar to those applicable to workplaces on shore. None of these duties deal with equipment. The other source of duty is the equipment regulations.

  14. This seems to me to point to an intention that the equipment regulations were to apply to all equipment on an offshore installation. In the nature of things, a lot of such equipment is going to be bolted or otherwise attached to the platform, but I do not think that this prevents it from being work equipment if it is for use at work. The same may be said of the lift which was (rightly, I think) held to be work equipment in PRP Architects v Reid [2004] EWCA Civ 1119; [2007] ICR 78. The Framework Directive 89/391/EEC “on the introduction of measures to encourage improvements in the safety and health of workers at work", which gave rise to individual directives such as the equipment directive, said that the directives were needed “to guarantee a better level of protection of the safety and health of workers". It went on to say:

    “This Directive does not justify any reduction in levels of protection already achieved in individual Member States, the Member States being committed, under the Treaty, to encouraging improvements in conditions in this area.”

  15. Thus the Framework Directive imposed a European ratchet upon levels of protection for workers and it would in my opinion be wrong to construe the 1996...

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