Employer’s Liability Case Update Martyn Gabbitass ACII ACILA QuestGates Ltd

Work Equipment The ‘new’ starting point? Spencer-Franks v. Kellogg Brown & Root Ltd & Others (HL2008)

Spencer-Franks The Facts:  Claimant, technician employed by 1 st Defendant  1 st Defendant supplied workers to 2 nd Defendant who operated oil rig.  Claimant repairing door closer.  Closer mechanism defective & Claimant struck in face.

House of Lords’ Decision  Overturned Hammond v. Commissioner of Police of the Metropolis & Others (CA2004)  No distinction can be drawn from person using equipment.  Door closer work equipment to those in control room (2 nd Defendant)  Held closer to be work equipment whilst Claimant repairing it even though not using it as intended.

Any Relief?  ‘Goal posts’ extended.  Spencer-Franks confirms equipment being repaired covered by PUWER even if not being used for intended purpose. However, did not clarify whether employer should be liable for equipment supplied by third party. (Agreement reached between Defendants not to ‘test’ this point).

Any Relief? (cont…)  Control remains ‘live’ issue.  Smith v. Northamptonshire C.C. (CA2008) Held: County Council not liable for injury where employee using ramp at private residence.  Specific comment made: installations within premises only work equipment if employer had right or control over maintenance.

Any Relief? (cont…) Couzens v. McGee & Co. Ltd (CA2009) Facts:  Claimant – HGV driver driving too fast.  Claimant alleged makeshift tool had caught in his trouser leg and employer failed to provide suitable place to keep tool. Claimant lost and appealed.  Appeal dismissed. Held: PUWER did not apply to tool because employer had not permitted its use.

Positive News Hull v. Sanderson (CA2008) Facts:  Turkey plucker suffering campylobacter enteritis.  Pleaded Fairchild – materially increased risk.  Overturned by Court of Appeal – “but for” test reinforced.

Positive News (cont…) Duncan v. Aerabuild Ltd (QBD2008) Facts:  Apprentice on building site.  Fixing timber strips to roof rafters.  Supervisor called away.  Claimant pulled himself up into roof space, swung back down & struck head.  Held – simple task; actions not foreseeable; equipment provided; provision of training/information would not have prevented Claimant’s accident.

Positive News (cont…) Paterson v. Surrey Police Authority (2008) Facts:  Employed since Estate Manager since Nervous breakdown Alleged long hours.  Held: Injury not reasonably foreseeable. Hatton principles reinforced.