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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnett v Scottish Power (t/a Manweb Metering Business) [2002] EWCA Civ 104 (30 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/104.html Cite as: [2002] EWCA Civ 104

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM CHESTER COUNTY COURT
(His Honour Judge Hughes)

		The Civil Justice Centre Park Street Cardiff Wednesday 30 January 2002

Wednesday 30 Jan 2002

1. LORD JUSTICE LATHAM: This is an appeal from a decision of His Honour Judge Hughes of 9 October 2001 in which, on a trial of liability only, he held that the appellant was in breach both of its common law duty of care to the respondent as her employer, and its duty to her under Regulations 5 and 9 of the Provision and Use of Work Equipment Regulations 1992. He further held that the respondent was not herself at fault in relation to the accident which befell her.
2. The accident occurred on 14 October 1998. The respondent was then 44 years of age, and was working as a part-time electricity meter reader. In the course of her work she was reading a meter in a house in Welshpool. It was too high for her to read without something to stand on. She was under 5 ft tall. She asked for and obtained from the household a small collapsible wooden chair which she had used when she read the meter on an earlier occasion in April 1998. As she was lifting the lid of the meter box with one hand, holding a torch in the other, she fell. She was not able to say whether this was because the chair collapsed or tipped up, or she overbalanced.
3. She began working as a part-time electricity meter reader towards the end of 1997. She was then employed by a company called Deekay Technical Recruitments Ltd who were engaged by the appellant to provide meter-reading services. It was while working for that company that she had previously read the meter in the house in question. While so employed by Deekay, she used to take an aluminium ladder of her own round with her. On the occasion in April 1998 when she had previously used the chair in question, the judge accepted that she happened not to have her ladder with her.
4. She was employed directly by the appellant on 20 June 1998. The respondent's evidence was that she was instructed not to use the aluminium steps, and accordingly she did not do so thereafter. Her evidence was that she asked for replacement steps, both orally of her team leader, Mr John Humphreys, and in writing on what was known as a "Self Monitoring Form". This was supported by her husband. The judge accepted their evidence; although Mr Humphreys, who also gave evidence, could not himself remember such a request being made; and there was no extant document disclosed on which the written requests had been made.
5. In accepting the respondent's evidence in this respect, the judge was clearly influenced by the fact that, as he found, all the other meter readers in the area, even her two part-time colleagues, had been supplied with wooden ladders or steps. The appellant's evidence was to the effect that, although she was not provided with steps, it was made clear to her that if she was in difficulties in reading a meter, she could always return to the depot in Oswestry where she could obtain a ladder. The respondent denied that she had received any such instruction. Indeed her evidence was that she had not received any formal safety induction training from the safety officer. This was corroborated by her answers on a "Review Questionnaire" in which she complained that she had received no induction safety training. Mr Humphreys' copy of that questionnaire confirmed this in the sense that he had not made any record at the appropriate place in the questionnaire of her having received any such training. The judge concluded that she had therefore not been given any instruction, as alleged by the appellant, or at least had not been given any adequate instruction. He also expressed doubt as to whether or not it was a realistic instruction, bearing in mind the distance which would be involved in travelling back to the depot from a visit, for example, to Welshpool.
6. The judge's conclusions of fact were helpfully set out by him on page 13 of the judgment in the following terms:

"(1) Mrs Barnett, although not without previous experience as a meter reader, was a new employee of the defendants.

(2) She was short of stature, under 5' tall.

(3) Before working for the defendants she had been in the habit of using her own aluminium steps and her new employers knew that she had.

(4) The new employers, the defendants, told her she had to stop using her own steps.

(5) I am satisfied that she asked for alternative wooden steps but they were never supplied to her.

(6) She was treated differently from other employees, most if not all of whom were provided with steps for their use, including the two other part-time meter readers as illustrated at page 81 of the bundle and confirmed by Mr Humphreys. The fact that all the others did have ladders suggests that the employers believed that it was necessary to provide them for them to be able to carry out their work safely. The evidence given by Mr Humphreys and Mr Berry to the effect that it would not have been practical or even beneficial for her to have been provided with steps for her daily use because she had to visit more than 200 houses every day and it would therefore not have been practical for her to have carried a set of steps around with her from house to house, rings somewhat hollow when measured not only against the inconvenience of having to drive back to Oswestry for steps if they were required but also against the fact that the other meter readers appear to have been carrying ladders with them in their vehicles supplied by their employer.

(7) The safety training given to Mrs Barnett was inadequate. I accept her evidence that, apart from being told that she should make her own assessment at the scene, she was not made aware that if she could not reach a meter she should refuse to do so and report back to the depot."

7. Having made those findings, he came to the conclusion, firstly, that the appellant was in breach of its common law duty of care to the respondent as its employee to provide safe plant and equipment. He also, as I have already indicated, having considered the terms of the Provision and Use of Work Equipment Regulations 1992 held that they applied and that there was a breach of regulation 5, which reads as follows:

"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."

8. He did so by reference to the interpretation regulation, regulation 2(1), which is in these terms:

"In these Regulations, unless the context otherwise requires --

'use' in relation to work equipment means any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning, and related expressions shall be construed accordingly;

'work equipment' means any machinery, appliance, apparatus or tool and any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole."

9. He also held that the appellant was in breach of regulation 9(1), which provides as follows:

"Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken."

10. He held that the Regulations applied to the chair and that the chair accordingly constituted work equipment for the purposes of the Regulations; and that the Regulations, properly construed, imposed an obligation upon the employer to ensure that that was safe.
11. The judge further concluded that in all the circumstances of the case, again as I have already indicated, he did not consider that the respondent was blameworthy in any sense which could justify him concluding that she was guilty of contributory negligence so as to justify any reduction in the amount of any award ultimately made as a result of his finding of liability.
12. The appellant sought permission to appeal from that judgment on five grounds. The first two grounds relate to the conclusions that the judge reached as to the breach of the common law duty of care and causation. The learned Lord Justice who dealt with the matter on paper did not grant permission to appeal in relation to that aspect of the case. Mr Kennedy, on behalf of the appellant, sought before us to renew his application to appeal on those grounds. Having considered the matter, we concluded that he should not have permission to argue those grounds. They relate to findings of fact by the judge which do not seem to me to be findings which can properly form the subject-matter of any appeal. They were bound to fail. The learned single Lord Justice granted permission to appeal in relation to two grounds in which the appellant seeks to argue that his conclusions as to the applicability of the Regulations are wrong. She also gave permission to appeal against the decision of the judge that there was no contributory negligence.
13. It follows from the ambit of the appeal that the appellant has now to accept that it is primarily liable, as a matter of common law, for the breach of its basic obligation, as found by the judge, to provide proper plant and equipment. Accordingly, in relation to primary liability the issues raised under the Regulations are in fact purely academic, unless it can properly be said that they in some way could affect our conclusions as to contributory negligence. It seems to me in the circumstances of this case that whether liability is established under the Regulations or not will make no difference to the proper conclusion as to contributory negligence.
14. In this case the judge made clear findings as to the way in which the respondent acted which, in my judgment, preclude the appellant from being able to argue that the judge was in any way wrong. It is difficult in any case for an appellant to be able to disturb conclusions of a judge as to contributory negligence. In this particular case, bearing in mind firstly that the allegation made against her -- in effect that she failed to make a proper assessment of the chair in question, and that in those circumstances she must be said to have been blameworthy -- is unsustainable in the light of the fact that, firstly, she had satisfactorily used the chair in April 1998. There was accordingly nothing about the chair itself which could be said to have properly required her to consider that it presented a real risk to her so that she could be said to have been running an unacceptable risk by using it. Secondly, the appellant had not provided her with any form of instruction in relation to the use of the chair which could be said to drive this court to the conclusion that she was breaking some form of instruction and must therefore accept some responsibility. Accordingly, it seems to me that there is no way in which the appellant can successfully argue, as it would have to, that the judge's conclusion was wrong.
15. That being the case, it would be a purely academic exercise for this court to engage in any detailed examination of the Regulations. In fact the Regulations were drafted in order to comply with this country's obligations under the Council Directive 89/655/EEC of 30 November 1989 "Concerning the minimum safety and health requirements for the use of work equipment by workers at work", and a proper determination of the scope and meaning of the Regulations will require a careful analysis of the extent to which the Directive has been properly reflected in the Regulations and the extent to which the Regulations can be said to be capable of being construed in accordance with the Directive. That raises a number of difficult issues, firstly, as to whether or not it can properly be said that the Directive, construed purposively, required as a matter of implicit obligation that the Regulations should include a requirement on the employer to provide safe equipment; alternatively, the extent to which, again purposively construed, the Regulations are to be construed in a way which the judge construed them, namely, so as to impose on the appellant an obligation in relation to the chair on the basis that it was being used as equipment.
16. Those are difficult questions which, it seems to me, require more by way of thought and consideration than we can give to them in this case today; and in view of the fact that they would not in any way affect the outcome of the appellant's appeal I do not consider it would be right to express any view about those issues. But for the reasons that I have already given, I would dismiss this appeal.
17. LADY JUSTICE ARDEN: I agree.
18. LORD JUSTICE JUDGE: For the reasons given by Lord Justice Latham, Mrs Barnett is entitled to succeed with her claim at common law and to succeed in full without any reduction for contributory negligence. I should simply record that in this case I am not impressed with criticisms made by an employer who has ignored sensible requests by a member of staff to be provided with proper equipment, and then seeks to succeed with an allegation of contributory negligence when that member of staff has got up and got on with the job as best she could with whatever was available to her.
19. It is unnecessary for any view to be expressed about the applicability or otherwise to this accident of the Provision and Use of Work Equipment Regulations and I, like my Lord, shall deliberately refrain from doing so or, indeed, from giving any hint of what my view might have been.
20. The appeal will be dismissed.
ORDER: Appeal dismissed with costs. Public funding assessment of the respondent's costs. (Order not part of approved judgment)