Ball v Street [2005] EWCA Civ 76

Case No B3/2004/0528[2005] EWCA Civ 76
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM CARDIFF COUNTY COURT
(MR RECORDER MICHAEL CHAMBERS QC)
Lower Court reference: CF 204970
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 4 February 2005
Before
LORD JUSTICE POTTERLORD JUSTICE LONGMORELORD JUSTICE JACOB
Between
BALLAppellantSTREETRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Brian Langstaff QC and Mr Robert O’Leary (instructed by Messrs Thompsons) for AppellantMr Alan Jeffreys QC and Mr Glyn Edwards (instructed by Messrs Lyons Davidson) for Respondent
JudgmentLord Justice Potter :Introduction
[1]This is an appeal by the claimant, Mr Ball, from the judgment and order of Mr Recorder Michael Chambers QC dated 30 January 2004 in the Cardiff County Court, whereby, following trial upon the issue of liability only, he dismissed Mr Ball’s claim for damages in respect of an accident in which he lost the sight of his left eye.[2]Mr Ball is a farmer. His injury occurred when he was using a haybob machine owned by the defendant who farmed nearby and whose services Mr Ball had hired for reward, including the use of his machine. A haybob is a piece of farm machinery towed behind a tractor for the dual purpose of turning and scattering new mown hay on the one hand and organising the hay into neat rows on the other. This operation is performed by rotating tines mounted on tine mounting shafts which have to be adjusted to one of the two appropriate positions (so as to alter the angle of the tines) according to the operation to be carried out. On the day of the accident, Mr Ball was using the haybob on his own with the consent of the defendant who was temporarily absent from his task of mowing, rowing and bailing hay on certain of Mr Ball’s fields.[3]Mr Ball’s action for damages was based upon breach of implied terms as to fitness for purpose and the satisfactory quality of the haybob and upon the alleged breach by the defendant of his obligation to maintain the haybob in efficient working order and good repair under Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 (“the Regulations”). At trial Mr Ball abandoned his case based upon breach of contract, proceeding only upon the basis of an alleged breach of Regulation 5(1). The defendant asserted that, by reason of the relationship between Mr Ball and the defendant and the circumstances in which Mr Ball used the haybob, the Regulations did not on their true construction apply to the use of the haybob at the time of the accident. The judge rejected this argument. He held that the Regulations were applicable, but he then went on to hold that there was no breach of the defendant’s obligation to maintain. Mr Ball appeals against that finding and the defendant cross-appeals on the basis that the judge should in any event have found that the Regulations did not apply.[4]The appeal and cross-appeal thus concern the scope and application of those Regulations.

The Regulations

[5]The relevant regulations are Regulations 3 and 4 and Regulation 5(1).[6]Regulation 3 provides: “(3) The requirements imposed by these Regulations on an employer shall also apply –(a) to a self-employed person, in respect of work equipment he uses at work;(b) subject to paragraph (5), to a person who has control to any extent of (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment; or (iii) the way in which work equipment is used at work, and to the extent of his control. (4) Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking, whether for profit or not. (5) The requirements imposed by these Regulations shall not apply to a person in respect of work equipment supplied by him by way of sale, agreement for sale or hire-purchase agreement.” (a) to a self-employed person, in respect of work equipment he uses at work; (b) subject to paragraph (5), to a person who has control to any extent of (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment; or (iii) the way in which work equipment is used at work, and to the extent of his control.[7]Regulation 4(1) 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’ – (a) … means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person …” (a) … means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person …”
[8]Regulation 5(1) provides:
“(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.”

The Relevant Facts

[9]There were issues at trial as to the contractual relationship between Mr Ball and the defendant and whether or not the defendant had sufficient control of the haybob to render the Regulations applicable to him: see regulation 5(3)(b). Having reviewed the facts, the judge found (as indeed the parties agreed) that the defendant was contractually engaged to provide his specialist services in mowing various of Mr Ball’s fields, for a reasonable sum per acre and per bale, and that it was implicit in the hire of the defendant’s services that he would bring and use his machinery including the haybob. The judge also found that the defendant worked at Mr Ball’s farm (assisted at times by Mr Ball) until the day before the accident, Saturday 17 July 1999. However, because the defendant was unable to work on Sunday 18 July, he permitted Mr Ball to use the haybob as part of the contractual arrangement between them. Although the defendant was absent on Sunday when the accident happened, he retained control over the haybob for the purposes of the Regulations because his permission was specific as to who was to use it, where and when it was to be used, and what it was to be used for. It was conceded by the defendant that, if the evidence justified such a finding, then the Regulations applied to him. However, the effect of the evidence was disputed.[10]As to the circumstances of the claimant’s accident, he was engaged in adjusting one of the tines on the machine. Each of the tines was held in position on a bracket (attached to the tine mounting shaft) by a stiff helical coil spring about 50mm in overall length and 23mm in overall diameter. The diameter of the wire from which each spring was made was about 2mm. At one end of the spring a looped section was engaged in a ‘roll-pin’ and the other end (the ‘tag end’) was designed to engage in either of two small holes (an outer hole and an inner hole) in the horizontal portion of the tine bracket. In the course of ordinary operation of a haybob, when the operator wishes to change the operation to be carried out, it is necessary to adjust the spring from the outer to the inner hole or vice versa. In order to adjust the tines by moving the spring from one hole to the other (he could not remember which) Mr Ball, acting quite properly and as required by the working adjustment he was making, pulled back on the second pair of tines, at which moment the tag end of the expanding spring which had been engaged in the tine bracket hole, fractured. It ricocheted from some part of the machine or from the adjacent pneumatic tyre and entered Mr Ball’s left eye.[11]Both Mr Ball and the defendant, supported by the joint expert evidence of a consulting engineer, Mr Warman, asserted that it was a common occurrence for tine-mounting shaft coil springs to fracture, usually at the tag end. This was confirmed by the suppliers of the machine. It was also common ground that failure of the coil spring could occur during normal working operation of the haybob as well as during adjustment, as in Mr Ball’s case.[12]At paragraph 6.5 of his report Mr Warman gave evidence as to the occurrence of the accident (which evidence was plainly accepted by the judge) as follows:
“ … the probability is, when it [the tag end of the material spring] broke it was ejected from beneath the bracket rather [than] from above it. Because the Claimant’s head was positioned above and behind the spring, for it to have adopted a trajectory which projected into the Claimant’s left eye, it must first have ricocheted. The Claimant says that he did not see the fragment before it struck him and he is therefore unable to say on which surface it might have ricocheted. However, the likelihood is that the surface was either the adjacent pneumatic tyre or a metallic part of the equipment. The evidence is that, normally when a coiled spring fails at the tag end, the small broken fragment is ejected harmlessly onto the ground. Indeed this is the outcome which I would have anticipated, bearing in mind the geometry of the spring and its mounting.”
[13]He added a comment, which plainly usurped the function of the judge, to the following effect:
“In my opinion, even though there was a foreseeable risk of the torsion spring fracturing, it cannot reasonably be said that there was a foreseeable risk that the tag end would strike the claimant in the eye and cause him injury.”
[14]Mr Warman added that, had Mr Ball been wearing goggles, the probability was that he would not have suffered injury. However, he stated that it would be most unusual to find a farmer who thought it necessary to protect himself in this way when adjusting the tines of a haybob.[15]There was also evidence from a metallurgist Mr Moore. His evidence (which was agreed) was that, if the pin had been in a position described as the ‘inner position’ the locating hole for the tag end of the torsion spring would have been below the pin and prevented from ejecting upwards. However, if the pin had been in the ‘outer position’ the locating hole for the tag end of the torsion spring could have been ejected upwards. Mr Moore accepted that on the evidence the former was more likely to have been the case.

The judgment below

[16]I have already set out the basis upon which the judge found that the Regulations were applicable to the relationship between the parties (see paragraph 9 above).[17]On the basis of the evidence before him

the judge made the following finding as to the mechanics of the accident:

“24. As to the circumstances of the Claimant’s accident I find that immediately prior to the spring breaking he was adjusting the tines from the outer hole to the inner hole … I consider that it is improbable the fragment of spring came upwards through the hole. I find on the balance of probabilities that it ejected towards the ground, but ricocheted, eventually travelling upwards into the Claimant’s eye. I find on the basis of Mr Warman’s full and well reasoned report that this was an unforeseeable freak accident.”
[18]Thus, by that last sentence, the judge adopted the opinion of Mr Warman as to the foreseeability of the accident.[19]Turning to Regulation 5(1), the judge referred to Stark v The Post Office [2000] ICR 1013, CA in which it was held that an absolute obligation was imposed by the corresponding previous regulation, namely Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992. That wording in turn followed the definition originally contained in s.152(1) of the Factories Act 1937 which was held by the House of Lords in Galashiels Gas Co Ltd v Millar [1949] AC 275 to impose an absolute obligation to maintain work equipment in an efficient state or in efficient working order.[20]However, upon the basis of the evidence before him that the breakage of a single spring (so that only one pair out of the eight pairs of tines became inoperative) would not prevent continued use of the machine,

the judge held as follows:

“30. In my judgment where there is an expendable part in a machine known to break from time to time and [it] can be easily replaced and it is one of a number of such parts so that the machine can continue working in an overall effective and efficient manner, it cannot be said that that work equipment is maintained in other than an efficient state, in efficient working order and in good repair, just like when one light bulb goes in a chandelier containing a large number of electric light bulbs.”
[21]He went on to state that, if he was wrong about that, nonetheless the recent decision of the Court of Appeal in Fytche v Wincanton Logistics plc [2003] EWCA Civ 874, [2003] ICR 1582 would preclude recovery. In that case the court was concerned with the Personal Protective Equipment at Work Regulations 1992 which, by Regulations 4 and 7(1), imposed duties upon an employer in respect of personal protective equipment analogous to those imposed by Regulations 4(1) and 5(1) of the Regulations. A heavy goods vehicle driver had been provided with steel cap safety boots designed to protect his feet against crushing. He suffered injury by frostbite when, ice and snow entered his boot through a minute and unperceived hole in the toecap and, in the extreme weather conditions existing, the claimant got frostbite in his toe. Having referred to the judgment of Waller LJ at paragraph 19 of the Fytche case, the judge held that that decision made clear that, where the obligation to supply protective equipment was directed to particular and identifiable risks in respect of which the boots afforded proper protection, the occurrence of injury through a defect or lack of repair having nothing to do with the function of the boots as protective equipment, involved no breach of the relevant statutory duty.

The judge concluded as follows:

“In my judgment Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 relates solely to identified risks. The unchallenged evidence of the joint expert was that it was not foreseeable that he would be injured in this way; it was an unfortunate and freak accident. Accordingly, in my judgment, the defendant was not in breach of Regulation 5.”

Did the Regulations apply as between the Parties?

[23]It is logical first to deal with the grounds of cross-appeal. Mr Jeffreys submits that, on the evidence of the parties, the contract between them was for hire of the defendant’s services in mowing Mr Ball’s fields. He accepts (as was common ground) that it was implicit in the hire of those services that the defendant would bring and use his machinery, including the haybob, for the purpose of his work. However, there was no separate agreement for hire of the equipment to Mr Ball for his own use at the time the accident occurred. Thus, when Mr Ball was permitted himself to use the machine in the defendant’s absence on the Sunday of the accident, Mr Ball used it on the basis of a gratuitous loan from a neighbour to which situation the Regulations are not intended to apply.[24]Although Mr Ball stated in evidence that he expected that the defendant would charge him for the use of the equipment when the work was complete, he also accepted that such charge had not been discussed. It was the defendant’s evidence that he intended to charge and did charge only for his own services and that there was no separate or extra charge for Mr Ball’s use of the equipment on that Sunday. On the other hand, he accepted in cross-examination that, in charging for his services, “the price would reflect the fact that Mr Ball had the benefit of [the defendant’s] equipment”.[25]The way in which the Recorder dealt with the matter was as follows. He stated:
“23. I find that the Defendant was contractually engaged to provide specialist services using his expensive specialist equipment for a reasonable sum per acre and per bale to be set by him at the completion of the work … I am satisfied that the defendant worked on the farm up to Saturday 17th July and said that he was unable to work on Sunday because he was carrying out preparation work for a wedding, and permitted the claimant to use the hay turner, but that was part of the contractual arrangement between them rather than as a neighbourly gratuitous gesture. Although the defendant was not present on the Sunday, I find as a fact that he did retain a degree of control over the hay turner because his permission was specific as to who was to use it, where it was to be used, when it was to be used and what it was to be used for. … 25. In my judgment the contractual arrangement between the parties was one of a contract to provide services not a contract of service and hire of equipment. If one engages a specialist worker to carry out a task, one hires the worker to use his specialist equipment and not the equipment as well … 26. However, in my judgment the original contract to provide a service, that is make hay on the first two fields, was subsequently varied. It was varied to include further fields. A consideration for that variation was the implied term that the defendant would be paid a reasonable sum for the additional work. The contract was also varied to permit the claimant to use the hay turner in the absence of the defendant on Sunday 18th July as part of the overall contractual arrangement between them. They were strangers and as such I consider there was an intention to enter into legal relations. The consideration was the implied term that the defendant would be paid a reasonable sum for what he had provided; this additional facility provided to the claimant would be reflected in the final price charged by the defendant. I accept the claimant’s submission that at all material times there was an uninterrupted contractual relationship between the parties.”
[26]There was a good deal of evidence directed to this issue. Mr Ball had approached the defendant, who had agreed to carry out work using his own equipment in circumstances where they had not previously met and Mr Ball had been unable himself to hire a haybob elsewhere. No fixed price had been agreed for the job, nor indeed any basis of calculation of the ultimate price to be paid. The witnesses were however agreed that the job would be done at a reasonable price. It was also clear that the job was not solely done by the defendant; he was assisted by Mr Ball in various respects in a manner which would obviously affect the reasonable price to be charged once the job was finished. The critical evidence as to the overall relationship appears at pages 136 to 139 of the transcript before us, in which the defendant agreed that for the purposes of the use on the job he brought with him some £120,000-worth of equipment including the haybob which was used not only by him but by Mr Ball with his consent in order to get the job done. He also stated that he spent considerable sums every year in the servicing and maintenance of the equipment. He agreed that it was in his contemplation at the time of the agreement that he would factor in to the final price charged the fact that he used expensive equipment on which he had had to expend money on maintenance. The evidence continued as follows:
“Q. So effectively when you calculated the price, part of the price would relate to the fact that he had had the benefit of your expensive equipment. A. Right. … Q. In general terms I think there’s an agreement that, to put it neutrally, once you’d started, if you like, variations to the original agreement took place … A. Right. Q. Where instead of just doing work on fields 1 and 2, you were also going to provide assistance with field 3. A. That’s right. Q. And if you like, another variation occurred whereby – I understand this is in general agreement as well – because it was reasonably good weather at the time, and it was beneficial to Mr Ball to get things completed as quickly as possible, that rather than just leaving all of the work to you, he would assist in carrying out some of the work. A. That’s right. Q. In order to enable him to assist in carrying out some of the work, obviously you had to allow him to use your equipment, didn’t you? A. That’s right. Q. And no doubt because Mr Ball again was having the benefit of your very expensive equipment, both to purchase and maintain, any price at the end of everything when things were calculated up, would reasonably include an element to reflect the fact that he had the use of your equipment, wouldn’t it? A. No. If he used it and just put diesel in it, I wouldn’t charge for that. Q. I suggest in fact it was always within your contemplation that even when he was using the equipment, because he was having the benefit of using your expensive equipment, whatever it was, that an element of the end price would include something to reflect his use of that equipment. A. No.”
[27]Mr Jeffreys relies on those last two answers as invalidating the finding of the judge that the contract was varied to permit the claimant to use the haybob in the absence of the defendant on 18 July as part of the overall contractual arrangement between them.[28]I do not consider that to be so.[29]The argument before the judge turned upon the assertion on behalf of the defendant that, on the Sunday of the accident, the use of the haybob was no more than the use of a machine lent by a benevolent neighbour and not as part of a commercial arrangement: c.f. Regulation 3(4). The finding of the judge, which was plainly justified on the evidence, was that the use of the haybob on the Sunday (whether it was to be separately charged for or not) was part of an overall commercial arrangement whereby Mr Ball was to pay for the services of the defendant and use of his machinery. Albeit it appears that the defendant did not charge for the use of the haybob on the Sunday, he would certainly have been entitled to do so. Nor does it alter the fact, as the judge found, that in relation to the Sunday in question, the defendant retained control over the use of the haybob in the sense of giving or withholding permission for its use, who was to use it, how it was to be used and for what purpose (see paragraph 23 of the judgment).[30]In those circumstances, it is of little assistance to analyse whether or not, in making his final charges when the job was complete, the defendant would or did add in a specific sum by way of hire for the claimant’s use of the machine to achieve early completion of the work which the defendant had agreed to carry out. The defendant fell within Regulation 3(3)(b) as a person who had ‘control to any extent’ of work equipment and the way in which it was used and (as was not in dispute) he fulfilled the requirement of Regulation 3(4) that such control was in connection with the carrying on of his trade or business, namely hiring out of his services together with the equipment owned and maintained by himself.[31]The defendant could not take advantage of the exemption contained in Regulation 3(5) which exempts from the requirements of the Regulations ‘a person in respect of work equipment supplied by him by way of sale, agreement for sale or hire-purchase agreement’. Those words of exemption do not extend to a person who hires equipment, or who ‘lends’ it in the sense that he simply hands over temporary physical control for use by another in circumstances where the opportunity and duty of maintaining the equipment in safe working order remains with him. The intention underlying the Regulations is no doubt that, so far as any commercial relationship is concerned, a line should be drawn between a sale or hire-purchase on the one hand in which the obligation of maintenance and the retention of any control over the equipment may properly be regarded as having unequivocally passed to the transferee, whereas, in the case of short-term hire or loan of equipment in the course of business, that is not so.[32]In these circumstances, I consider that the judge was right to find that the Regulations were applicable to the situation which existed between the parties.

Was a Breach of the Regulations established?

[33]For Mr Ball, it is submitted by Mr Langstaff QC, that, having held that the Regulations applied, the judge was wrong in law and on the facts to hold that the defendant was not in breach of Regulation 5(1) and therefore not liable to the claimant. There being no dispute that the spring on one of the tines of the haybob broke as described, the Recorder was wrong to hold that the haybob, with a broken spring and useless tine, was nevertheless maintained in an efficient state or good repair for the purposes of Regulation 5(1), particularly bearing in mind that the Guidance Notes for the Regulations make it clear that whether machinery is ‘efficient’ is to be determined from the point of view of health and safety and not from the point of view of productivity or economy.[34]Second, the Recorder was wrong to hold that, on its correct interpretation, Regulation 5 related solely to ‘identified risks’ or that, if it did, those risks excluded injury to the claimant’s eye simply because the particular form of the accident or injury was not foreseeable. In this connection it is submitted that the Recorder misunderstood the effect of the decision of the Court of Appeal in Fytche and failed to take into account the decision of the House of Lords in Galashiels Gas Company Ltd v Millar as applied to the precursor of Regulation 5(1) in Stark v The Post Office. In the latter case, it was made clear that the words “maintained in an efficient state, in efficient working order and in good repair” gave rise to strict liability. It is submitted that the Recorder was in error by treating the concept of foreseeability of injury as relevant to the question of breach of Regulation 5(1).[35]Third, it is submitted that in any event the Recorder was wrong to hold that Mr Ball’s accident was not reasonably foreseeable. It being common ground that springs on the tines of haybobs were known to break from time to time, it was foreseeable that (whatever the expressed view of Mr Warman) personal injury might occur if a spring (or part of it) was ejected, whether in a direct trajectory upwards or a ricochet.[36]Finally, it is submitted that, if Mr Ball is successful in the appeal, this court should, on the available evidence, deal with any question of apportionment as between Mr Ball and the defendant.[37]In resisting the appeal, Mr Jeffreys has argued in support of the judge’s reasoning. In my view Mr Langstaff’s submissions are correct.[38]The employer’s duty of care laid down by Regulation 5(1) applies to any work equipment ‘used at work’: see Regulation 3. As the judge held, and I have already confirmed, the defendant was within Regulation 3 in relation to the maintenance of the haybob and was subject to the employer’s duty to see that it was “maintained in an efficient state, in efficient working order and in good repair”.[39]That was a duty in similar terms to the duty imposed by sections 22(1) and 152(1) of the Factories Act 1937, and alleged to have been breached in respect of the failed hoist mechanism in Galashiels v Millar. The headnote to the report of the House of Lords’ decision in that case accurately sets out the ratio of the decision, namely that the duty imposed an absolute and continuing obligation, so that proof of any failure in the mechanism of a hoist or lift established a breach of statutory duty, even though it was impossible to anticipate such failure before the event or to explain it afterwards, and even though all reasonable steps had been taken to provide a suitable hoist or lift and to maintain it properly.[40]Lord Morton of Henryton stated at 282-283 as follows:
“My Lords, in my view the Lord Ordinary supplied the correct answer to the whole of this argument when he said: ‘In my opinion … there is imposed on the defenders an absolute and continuing obligation binding upon them which is not discharged if at any time their lift mechanism, in this case the brake, is not maintained in an efficient state, in efficient working order and in good repair’ … It is quite true that the sub-section, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect workmen. I think the sub-section must have been so worded in order to relieve the injured workmen from the burden of proving that there was some particular step which the employers could have taken and did not take … The statute renders the task of the injured workmen easier by saying, ‘You need only prove that the mechanism failed to work efficiently and that this failure caused the accident’ … ”
[41]Lord MacDermott stated at 286-7:
“My Lords, if this means that every lift shall be kept continuously – or at least whilst available for use as a lift – in efficient working order the nature of the obligation is clear. It then falls into a category long recognised and firmly established by authority; it is a strict or absolute duty and neither intention nor lack of care need be shown in order to prove a breach of it … When the terms of the definition are regarded … they indicate conclusively that in Section 22(1) ‘maintained’ is employed to denote the continuance of a state of working efficiency … In short, the definition describes a result to be achieved rather than the means of achieving it … There was abundant proof that the mechanism had failed and that that failure resulted in the death of the respondent’s husband. Once the absolute nature of the duty imposed by the statute is established, that is proof enough. The obligation is to have the lift in ‘efficient working order’ at the time of the accident, as well as at other times, and the breach of that obligation has clearly been shown.”
[42]In Stark v The Post Office, the Court of Appeal considered Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 which was the precursor, and in identical terms, to Regulation 5(1) of the 1998 Regulations. That case concerned a delivery postman to whom the Post Office had provided a bicycle on which to make his rounds. One morning, as he was using it in the course of his employment, the stirrup of the front brake suddenly broke in two. One of the parts lodged in the front wheel which locked, throwing the postman over the handle bars. The judge found that the cause of the failure brake part was either metal fatigue or some manufacturing defect neither of which would have been revealed on even the most rigorous of inspections. The claimant contended that, notwithstanding that finding, an absolute obligation was imposed by Regulation 6(1) of the 1992 Regulations. The Post Office argued that, in the light of Council Directive 89/65/EEC (the “Work Equipment Directive”) and Council Directive 89/391/EEC (the “Framework Directive”) to which the regulations were intended to give effect, something less than an absolute duty was required. The Court of Appeal, having cited passages from Galashiels v Millar and having considered the decisions of the House of Lords in Hamilton v NCB [1960] AC 633 and Smith v Cammell Laird [1940] AC 242, confirmed that Regulation 6(1) imposed strict liability. Waller LJ stated in the penultimate paragraph of his judgment:
“In the circumstances it seems to me that Regulation 6(1) does impose an absolute obligation and that accordingly, since the bicycle was not in an efficient state or efficient working order when the stirrup broke, the Post Office were in breach of their statutory duty.”
[43]In my view, the reasoning in those cases is applicable in the instant case. As in Galashiels v Millar there was abundant proof that the mechanism of the haybob had failed and that that failure resulted in injury to the claimant. (c.f. Lord MacDermott at paragraph 41 supra). It was no longer in good repair nor was it in an efficient state or efficient working order. By breaking as it did, the mechanism for retaining and/or altering the position of the tine in the course of the use of the haybob at work failed to work efficiently and that failure caused the accident (c.f. Lord Morton at paragraph 40 supra).[44]In relation to Regulation 5(1), I do not accept the broad proposition of the judge that, where there is an expendable part in a machine known to break from time to time which can easily be replaced and it is one of a number of such parts so that the mechanism can continue working in an overall effective and efficient manner, no breach of Regulation 5(1) is demonstrable, “just like when one light bulb goes in a chandelier containing a large number of electric light bulbs.” The Regulation does not define the employer’s duty in terms of the overall suitability of the equipment to perform the task for which it is designed. It deals with the duty to maintain it in an efficient state and working order and in good repair in respect of all of its mechanical parts so as to prevent injury to the person using the equipment. As in the case of the sections of the Factories Act 1937 considered in Galashiels v Millar, the object of the Regulations is a broad one, namely to protect workmen, and the task of the court is to view the maintenance and the condition of the machinery supplied to them from the point of view of health and safety and not that of productivity or economy.[45]I consider that the Recorder was wrong to take the view that, so far as the overall effectiveness and efficiency of the machine was concerned, loss of function in one of the tines was insignificant. Where a defect renders the machine other than in good repair, consideration of overall efficiency loss in relation to the task in hand is not an exercise which the Regulation invites, or the court is required to follow. It would lead to varying and infinite arguments as to the percentage efficiency or other criteria of suitability in cases where, as pointed out in Galashiels v Millar, the imposition of an absolute duty is designed to render the task of an injured workman easier by simply requiring him to prove that the mechanism of the machine (which must mean any significant part of the machine) failed to work efficiently and/or was not in good repair and that such failure caused the accident (per Lord Morton).[46]I further consider that the Recorder was wrong in law to hold that, on its correct interpretation, Regulation 5 relates solely to ‘identified risks’ so that, because the accident which occurred and caused the claimant to lose the sight in his left eye was not foreseeable (being ‘an unfortunate and freak accident’), there was no breach of Regulation 5(1).[47]This view appears to have been based upon what I consider to be a misunderstanding of the decision of the Court of Appeal in Fytche v Wincanton Logistics plc, since affirmed by the House of Lords [2004] UKHL 31. That case was concerned with the construction of the Personal Protective Equipment at Work Regulations 1992. I have already referred to the relevant facts (see paragraph 21 above). The material regulations were Regulation 4:
“(1) Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.” and Regulation 7 which provided: “(1) Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.”
[48]It will be noted that the italicised words are the same as those in Regulation 5(1) of the 1998 Regulations with which we are concerned.[49]In relation to the 1992 Regulations, Waller LJ stated at paragraph 19:
“The language of Regulation 7(1) does impose an absolute duty, but the right question in my view is: was it intended by the Regulations … to impose an obligation on employers in relation to risks other than those necessitating protective equipment?”
[50]The majority of the court (Waller LJ and Kay LJ) held that it was not so intended and that, because the personal protective equipment had been provided to protect against a crushing injury and the injury in question was not one caused by crushing, the claimant failed. As Kay LJ put it, “The protection supplied to him was effective in securing protection from the risk that had been identified as requiring the provision of the boots.”[51]The decision of the majority was affirmed without criticism in the House of Lords. Before this court Mr Jeffreys has relied principally upon the observations of Lord Hoffmann as to the proper approach to the 1992 Regulations, which he submits is equally applicable in this case. Lord Hoffmann stated at: “In my opinion, however, ‘efficient state, in efficient working order and in good repair’ is not an absolute concept but must be construed in relation to what makes the equipment PPE [personal protective equipment]. What counts as being in an efficient state? Efficient for what purpose? In my opinion, for the purpose of protecting against the relevant risk. Regulation 7 extends in time the duty to provide suitable PPE under Regulation 4. By virtue of Regulation 7, it is not enough just to provide it and then leave the employee to his own devices. The employer has a duty to maintain it so that it continues to be suitable PPE. But he does not have a duty to do repairs and maintenance which have nothing to do with its function as PPE.” (para 18)[52]Mr Jeffreys’ argument runs as follows. He says that the primary duty under Regulation 4 of the Regulations is to ensure that work equipment is constructed/adapted so as to be suitable for its purpose (Regulation 4(1)), suitability being defined by the yardstick of whether it is reasonably foreseeable that it will affect the health or safety of any person (Regulation 4(4)(a)). The duty under Regulation 5 relates to maintenance of that work equipment. Adopting Lord Hoffmann’s approach, Mr Jeffreys submits that Regulation 5 extends in time the duty to provide suitable work equipment. It is not enough for the employer to ensure that the work equipment is constructed or adapted so as to be suitable but he has a duty to maintain it so that it continues to be suitable work equipment. However he does not have a duty to do repairs and maintenance which have nothing to do with its suitability as work equipment.[53]He submits that, when the spring attached to one of the tines on the defendant’s haybob broke, the haybob did not cease to be suitable because(a) if a spring was broken the machine could have been used and it would have been perfectly fit for its task with one spring broken and(b) the Recorder rightly found on the basis of Mr Warman’s report that it was ‘an unforeseeable freak accident’.[54]I do not regard either the reasoning or the result in Fytche v Wincanton as applicable in this case.[55]So far as submission (a) is concerned, it is first important to note that Galashiels v Millar was referred to in the House of Lords and not doubted. Further, counsel did not invite the House of Lords to overrule Stark v The Post Office which had been cited with approval in the Court of Appeal in Fytche, and which was the subject of no adverse comment by their Lordships. It therefore remains binding on the Court of Appeal unless inconsistent with the reasoning of their Lordships in Fytche. The key to the decision in the House of Lords is best to be found in the speech of Lord Walker of Gestingthorpe at paragraphs 51-53 and in the subject matter of the 1992 Regulations namely the supply of protective equipment as opposed to work equipment. In those paragraphs Lord Walker acknowledged that the wording of Regulation 7, reflecting as it did the wording considered in Galashiels v Millar, gave support to the claimant’s argument that there should be a literal interpretation of Regulation 7 (since a pair of boots with a hole which let in water could not be described as being in good repair). Lord Walker stated as follows:
“52. In order to succeed the defendants must therefore establish a contextual restriction on the wide natural meaning of regulation 7(1). It might be thought undesirable for the House to adopt a restrictive interpretation of a provision concerned with health and safety at work. But (as already noted) the 1992 regulations are only a small part of the complex of statutory provisions concerned with health and safety at work (and at trial the claimant relied, unsuccessfully, on other statutory provisions and on alleged breaches of common law duties). Regulation 7(1) imposes an absolute duty (that is common ground) and its breach is attended by criminal sanctions. If the scheme and context of the regulation strongly suggests that a restricted meaning is appropriate, it should not be rejected merely because health and safety are an issue. 53. In my opinion there are strong contextual arguments for a restricted reading. The clear underlying purpose of the 1992 regulations as a whole is to ensure the provision of personal protective equipment as a last line of protection against risks which are identified and assessed as not being avoidable (or controllable) by other means.”
(emphasis added)[56]In this connection, he said later in his judgment:
“55. Another argument (which weighed heavily with Lindsay J in his dissenting judgment in the Court of Appeal) is that a purposive construction of the regulations may lead to uncertainties and prolonged and expensive litigation, whereas with an unrestricted absolute duty under regulation 7 ‘litigation would accordingly be simplified, be inexpensive and be comparatively speedy’ (p.1951A, para 31). This concern merits respectful attention, but I do not foresee serious difficulties in recognising the risks in respect of which personal protective equipment is supplied. The whole business of providing the equipment is (as already noted) concerned with the identification and assessment of risks. In any properly run business the risks will be fully documented (probably by reference to official publications) in a form which can be explained (and must be clearly explained – see Regulation 9(1)(a) and (2)) to the employees affected by the risks. The enquiries which Lindsay J refers to (p.1591, para 35) should therefore be unnecessary, since the answers should already be on file.”
[57]The focus of the 1998 Regulations is not upon the identification and assessment of risk for the purpose of providing safety equipment suitable for protection against a particular risk or hazard identified and not controllable by other means; it is upon general considerations of safety against the broad risk of accidental injury inherent in the use of machinery which is not maintained in good repair and efficient working order.[58]That being so, as far as Mr Jeffreys’ submission (b) is concerned, the answer is that the fact that the type of accident which occurred was unforeseeable does not avoid the bite of Regulation 5. In making his argument, Mr Jeffreys has sought to introduce what seems to me an inappropriate distinction in this context, i.e. between foreseeability of the occurrence of the particular defect (which he acknowledges to be irrelevant), and foreseeability of injury as a result of that defect, which was absent according to the evidence of the expert and the findings of the Recorder.[59]I do not consider that such a distinction assists in this case. First, it is premised on the submission that the reference to suitability for purpose in Regulation 4 governs the nature and level of the obligation of maintenance in Regulation 5 despite the absolute terms of the latter Regulation. I have already rejected that submission. Second, I would point out that there is no basis for a distinction along those lines in any of the decisions to which we have been referred.[60]Finally, I would only add, though I do not think it necessary for the purposes of the appeal, that, even if it were necessary to limit the absolute obligation to maintain provided for in Regulation 5(1) by reference back to Regulation 4(4) as argued by Mr Jeffreys, I would hold the defendant liable in any event. The test provided for in Regulation 4(4) is that of reasonable foreseeability so far as health and safety are concerned. In this context, namely the known likelihood of fracture of a powerful spring from time to time in course of operation, I would hold that the risk of injury to someone in close proximity at the time of such fracture, in relation to which there would be no warning or prior indication of wear, and in respect of which no protective safety casing was present on the machine, was reasonably foreseeable having regard to the broad health and safety considerations contemplated by the Regulations. It is clear that upward trajectory of the broken end of the spring was possible when the tines were in one of their alternative operating positions (see paragraph 15 above). It is also clear that the trajectory of the spring was unpredictable and thus ricochet from part of the machine was a possible mechanism of accident on the parting of the spring.[61]I would therefore allow Mr Ball’s appeal on the issue of liability.

Apportionment

[62]In the light of the finding of the judge that there was no breach of the Regulations, he omitted to deal with the plea raised in the defence that the claimant had himself been negligent and/or was himself in breach of the Regulations to the same extent as the defendant by virtue of the provision in Regulation 3(3)(a) that the requirements imposed by the Regulations on an employer shall also apply to a self-employed person in respect of work equipment he uses at work.[63]The plea as to contributory negligence was based on the failure of the claimant to wear safety goggles or to notice that the spring was defective (if it was). The first allegation failed on the basis of the expert evidence and the second was not pursued.[64]On the basis of the plea of a co-extensive breach of statutory duty, Mr Jeffreys has argued that the damages should be reduced by 50%. It is conceded by Mr Langstaff in his skeleton argument that any damages awarded should be reduced by 25% but no more. Neither counsel developed their arguments before us beyond those simple assertions.[65]In my view, any apportionment requires to be made upon the basis that the defendant’s breach was a failure to maintain in respect of a component in which the defect was not apparent and would only be avoided, or the risk of its occurrence minimised, by means of regular maintenance procedures by the owner of the machine in whose overall control it was and remained. Any breach by Mr Ball was of the most technical and transient kind. His use of the haybob was a fleeting one, in the course of which he had no realistic opportunity to maintain the machine in any relevant respect. I would therefore reduce the award of damages to the extent conceded by Mr O’Leary, namely 25%, and no more.

Conclusion

[66]I would allow the appeal and order that judgment be entered for the claimant for damages to be assessed on a 75% basis.

Lord Justice Longmore:

[67]Two substantial questions arise in this unfortunate dispute that has arisen between two neighbouring farmers at Lugwardine in Herefordshire. Although I agree with my Lord’s resolution of these questions, I add a few words since we are differing from the judge.[68]It is accepted that Mr Ball retained Mr Street’s services for rowing and baling the hay in three fields of his farm and that Mr Street would provide his hayturner (or haybob as it is sometimes called) in the course of his services. No one suggests that Mr Street was in any way negligent; but it is said that since he provided the hayturner he became subject to the Provision and Use of Work Equipment Regulations 1998. Those regulations provide that their requirements apply not merely to an employer but also “to . . . a person who has control to any extent of work equipment to the extent of his control”. On Sunday 18th July 1999 when the accident occurred Mr Street was absent from Mr Ball’s farm because he was preparing for wedding celebrations elsewhere; he had said that while he was away Mr Ball could himself use the hayturner. Mr Ball submits that, despite Mr Street’s absence, Mr Street was still in control of the machine for the purpose of the Regulations. The first question is whether that is right.[69]It seems to me, as it seems to my Lord, that Mr Street continued to have control of the hayturner even while he was away from Mr Ball’s farm. It was his machine and he could, if he wished, have asked Mr Ball not to use it or, indeed, have taken it away from the farm. It was merely convenient that the hayturner should remain in the farm that day (just as it was convenient that it should remain there during the night when it was not being used at all). But Mr Street’s control continued to exist at all times. If one asks for what purpose that control must exist, the answer is that it exists (inter alia) for the purpose of maintaining the hayturner in the state in which it was required to be maintained as much as for any other purpose. Only Mr Street could be expected to maintain it in whatever condition it was appropriate that it be maintained.[70]Once it is decided that the Regulations apply, the question arises whether there has been a breach. Mr Ball submits that there was a breach of Regulation 5 which provides:- “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.”[71]Mr Ball, relying on Galashiels Gas Co Ltd v Millar [1949] AC 275 and Stark v Post Office [2000] ICR 1013 submits that a machine with a tag end liable to break off was not, at the time of such breakage, in an efficient state or in efficient working order or in good repair and such failure caused the accident. The fact that it was a freak accident and, on that basis, not foreseeable is nothing to the point. Mr Street relying on Fytche v Wincanton Logistics Plc [2004] ICR 975 submits that the maintenance obligation only applies to equipment which is suitable for its purpose viz. in the words of Regulation 4(4)(a):- “suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person.”[72]It was not reasonably foreseeable that a breakage of the tag end of a tine would affect anyone’s health and safety. The machine was, therefore, suitable and the obligation of maintenance was only to maintain it in that suitable condition.[73]The importance of this question is obvious. Traditionally the obligations contained in health and safety legislation have been construed as absolute obligations and reasonable foreseeability has been an irrelevant consideration. It would be surprising if that traditional protection for workers has been diminished by the adoption of the EU’s Framework Directive (89/391/EEC) and its six “daughter” directives. But that is the submission made by Mr Street in the light of the House of Lords’ majority decision in Fytche[74]The first observation to be made is that Fytche was a case brought pursuant to the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) (“PPE”) made to implement the Personal Protective Equipment Directive (89/656/EEC). These regulations are similar in form but not identical to the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (“PUWE”) which have been made to implement the Work Equipment Directive (89/655/EEC) and later amendments made to that Directive. It is pursuant to these 1998 Regulations that the present claim has been brought.[75]In Fytche Lord Walker of Gestingthorpe at paragraph 48 of his speech identified three important hoops through which the employer had to pass in order to perform his duty. The first of these hoops was that he had to conduct an assessment of whether the personal protective equipment which an employer proposed to provide was suitable. He called the question of suitability a minor detour to an orderly progress through the three hoops, but suitability was defined in regulation 4(3) of the PPE regulations in a very similar way to that in which it is defined in the PUWE regulations. It was, nevertheless, the requirement of this assessment which enabled Lord Walker to refer (in paragraphs 51, 53 and 55) to “identified risks” which had to be avoided or reduced (compare Waller LJ and Kay LJ in the Court of Appeal [2003] ICR 1582 at paras 20, 26 and 27). There is no comparable requirement for an assessment in the PUWE regulations although there is a comparable requirement of suitability; in the absence of any requirement for an assessment, however, it makes little sense to talk of “identified risks” and the judge’s apparent reliance on the absence of “identified risks” in the present case is, in my judgment, to that extent misplaced.[76]Nevertheless the Fytche case can certainly be read as a decision that the maintenance obligation in the PPE regulations, strict obligation as it is, is merely an obligation to maintain the protective equipment in the suitable state in which it was when provided to the employee; so that by parity of reasoning, if the equipment in the present case was defective in a respect which had nothing to do with the reasons for which the equipment was furnished in the first place or in a respect which would not foreseeably affect anyone’s health or safety, no liability would arise in relation to the provision of such equipment or with regard to its future maintenance.[77]To my mind, however, regulations made in respect of specifically “protective” equipment cannot readily be correlated to the more general regulations made in respect of the provision and use of “work” equipment. The obligation to maintain equipment at work is only partly to maintain it in the state in which it was “suitably” provided in the first instance but must also extend to maintaining it in a state in which the worker is not, in fact, to be injured; if the maintenance need only be done to deal with risks foreseeable at the time the equipment is provided that would do much to diminish the utility of health and safety legislation altogether. Ever since Galashiels the employer has been held responsible, pursuant to his maintenance obligations, for the unexplained (and indeed inexplicable) accident. It would be both unfortunate and retrogressive if an employer could escape liability by saying that at the time when the equipment was originally provided there was any respect in which it was not reasonably foreseeable that any failure to maintain would affect the health and safety of any person. It would be even more unfortunate if, as the judge would apparently have it, the employer could escape liability because there was no “identifiable risk”.[78]It follows, therefore, that I agree with my Lord that the focus of the 1998 Regulations is on general considerations of safety and protecting employees against the broad risk of accidental injury inherent in the use of machinery which is not maintained in efficient working order and good repair.[79]Any lingering unease that a farmer can find that he becomes liable to a neighbouring farmer because he does his neighbour the kindness of providing service and equipment at a reasonable price has to be set against the importance of giving a proper construction to regulations implemented mainly for the benefit of employees.

Lord Justice Jacob:

[80]I also agree.

ORDER:

[1]The Claimant’s appeal is allowed and judgment entered for the Claimant on the issue of liability for 75% of the full value of his claim.[2]The Defendant’s cross appeal be dismissed.[3]The Defendant do pay the Claimant’s costs of the action on the issue of liability to be assessed if not agreed by way of detailed assessment at the conclusion of the case on the standard basis until and including 7th January 2004. The costs of 8th January 2004 only be assessed on an indemnity basis pursuant to the Court’s powers under Part 36 of the Civil Procedure Rules 1998. For the avoidance of doubt, it was reasonable for the Claimant to have one, but not two, fee earners in attendance at trial.[4]The Defendant do pay the Claimant’s costs of the appeal and of the cross appeal to be assessed if not agreed by way of detailed assessment at the conclusion of the case on the standard basis.[5]The Claimant is awarded interest at 6% above base rate on his costs for 8th January 2004 (only) on the issue of liability under the Court’s powers pursuant to Part 36 of the Civil Procedure Rules 1998.[6]The Defendant is to pay the Claimant £15,000 as a contribution towards his assessed costs.[7]The case shall be listed for directions on the issue of quantum before the District Judge of the Cardiff County Court on the first open date after 11th February 2005 t/e 30 minutes.[8]There be a legal aid/ CLS public funding assessment direction in respect of Claimant’s costs. (Order does not form part of approved judgment)

Cited in 1 later judgment