Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 3

XA106/13

Lord Menzies

Lord Bracadale

Sheriff Principal Scott QC

 

OPINION OF THE COURT

delivered by LORD MENZIES

in the appeal in the cause

MATTHEW COIA

Pursuer and appellant;

against

PORTAVADIE ESTATES LTD

Defenders and respondents:

Pursuer and appellant:  Fitzpatrick;  Digby Brown LLP

Defenders and respondents:  Cowan, sol adv;  Simpson & Marwick

6 January 2015

The issues
[1]        In this action for damages for personal injury three central issues arise:

(1)        Was the wardrobe pole which fell and injured the pursuer “work equipment provided by the defenders for use or used by an employee of theirs at work” for the purpose of The Provision and Use of Work Equipment Regulations 1998 when the accident happened?

(2)        Was the pursuer at work when the accident happened?

(3)        Was the lodge in which the accident happened a workplace for the purpose of the Workplace (Health, Safety and Welfare) Regulations 1992 when the accident happened?

 

The factual background
[2]        In February 2011 the pursuer was employed by the defenders as a chef.  The defenders operated a hotel and lodges at Portavadie Marina, Loch Fyne.  The pursuer had been working for the defenders for about six months.  Initially, he stayed in a caravan provided by the defenders.  He was not obliged by his contract of employment to stay in accommodation provided by the defenders – he was free to find his own accommodation, but the caravan provided by the defenders for his use was convenient and cheap.  The pursuer paid the defenders £15 per week to stay in the caravan, which was deducted from his salary.

[3]        In early January 2011 the pipes in the caravan in which the pursuer was living froze and burst.  Because of this the defenders agreed to let the pursuer stay in one of the lodges which were normally used as accommodation for customers of the defenders.  Again, the pursuer paid the defenders for this accommodation, payment being deducted from his salary;  as before, he was not obliged to stay in accommodation owned by the defenders.  The lodge which he occupied was about 10 minutes’ walk from the restaurant complex, kitchen and hotel. 

[4]        The pursuer was entitled to use the lodge as he wished, but was not allowed to make any structural alterations nor to hang pictures on the walls.  He moved all his personal belongings into the lodge, and his girlfriend stayed with him there on occasions.  From time to time the defenders inspected the lodge to ensure that it was being kept in a tidy condition, but during the time that the pursuer was staying there the defenders did not provide cleaners or housekeepers for the lodge.  It was made clear to the pursuer that if the defenders had paying customers who wished to occupy the lodge, he would have to move out. 

[5]        At the beginning of February 2011 the pursuer was told by the defenders that they required the lodge so that it could be occupied by a paying customer.  As a result the pursuer had to vacate the premises and move his personal possessions. 

[6]        The pursuer had stored some of his personal possessions on a shelf in a wardrobe in the lodge.  Within the wardrobe was a metal pole from which clothing would normally be hung.  It was not secured safely to the wardrobe.  It was not of the correct size and had not been securely fixed in place nor otherwise stabilised.  The edges of the pole were sharp and had not been smoothed.  In the course of removing his belongings from a shelf in the wardrobe the metal pole dislodged and fell and struck the pursuer’s foot, causing him injury.  After this accident the pursuer walked to the main hotel building and told the restaurant manager that he had sustained an injury.  She provided him with first aid. 

 

Procedural history
[7]        The pursuer raised an action for damages for personal injuries in Dunoon Sheriff Court.  The pursuer’s claim was based on the alleged breach by the defenders of various statutory duties, namely (1) regulations 4, 5, 12 and 20 of The Provision and Use of Work Equipment Regulations 1998 (“the equipment regulations”);  (2) regulation 10 of the Work at Height Regulations 2005;  (3) regulation 5 of The Workplace (Health, Safety and Welfare) Regulations 1992 (“the workplace regulations”);  and (4) regulation 3 of the Management of Health and Safety at Work Regulations 1999.  The defenders denied liability and averred that none of these regulations applied.  However, in the event of liability being established, parties agreed quantum in the sum of £3,250 by means of joint minute. 

[8]        The matter went to proof before the sheriff on 24 June 2013.  There was no real dispute that the accident had happened as the pursuer stated, but the position was maintained on behalf of the defenders that the regulations did not apply in the circumstances of this accident, and so no liability attached to them. 

[9]        In his judgment dated 11 July 2013 the sheriff granted decree of absolvitor.  In summary he agreed with the submissions for the defenders that none of the regulations relied on applied.  He did not “consider that a pole contained within a wardrobe in what is normally a lodge occupied by guests is, in relation to the pursuer, ‘work equipment’.”  When the pursuer was in the lodge the sheriff took the view that he was not “at work” or “in work with work equipment”.  The lodge was a property made available to the pursuer exclusively to conduct his private life within it.  The pursuer was not an employee acting in the course of his employment when the accident occurred.  By interlocutor dated 22 July 2013 the sheriff dealt with expenses.  It is against the interlocutors of 11 and 23 July 2013 that the pursuer now appeals to this court. 

 

Submission for the pursuer and appellant
[10]      Counsel for the pursuer and appellant submitted that the sheriff fell into error in finding that the pursuer was not “at work” nor “in a workplace” when the accident happened, and that the pole was not “work equipment”.  At the time that the accident happened the appellant was an employee of the defenders and was complying with a lawful instruction given to him by his employers to clear his possessions from the lodge.  This instruction was given to him by the defenders in their capacity as his employers and not in any other capacity such as quasi‑landlord.  Moreover, the lodge comprised a workplace for employees of the defenders and specifically for the appellant himself.  There was no evidence led that the lodge comprised “domestic premises”.  The appellant was expected to carry out housekeeping duties in the lodge.  Although no cleaners or other housekeeping staff were provided to clean the lodge when he was occupying it, it was a workplace for other employees of the defenders, such as cleaners and yard boys who kept the exterior surroundings of the lodge tidy.  Properly understood, the pole in the wardrobe was work equipment. 

[11]      The terms of section 52 of the Health and Safety at Work Etc. Act 1974 are relevant to the meaning of “work” and “at work”.  The appellant was working as an employee of the defenders and was removing his possessions from the lodge in the course of his employment.  The defenders had complete control over the whole of the site, including the lodge;  the appellant was not entitled to refuse his employers access to the lodge, and he could be called on to quit the lodge at very short notice.  The sheriff appears to have proceeded on the assumption that the kitchen premises in the hotel building comprised the appellant’s workplace, but it was never put to him in evidence that his sole place of work was the kitchen.  The sheriff’s assumption was that the appellant’s working environment was highly demarcated (“on a par with a Downton Abbey of the 1920s”), but this was not borne out by the evidence – the appellant’s girlfriend was employed as a kitchen porter by the defenders but on her unchallenged evidence she “got switched into housekeeping four or five times”.  The appellant would do his own housekeeping, and it was his responsibility to keep the lodge clean and tidy.

[12]      Whether the appellant was clearing his possessions out of the lodge “in his own time” or “off shift”, he was complying with an instruction given to him in the course of his employment, and so he was doing so “in the course of his employment”.  Whenever he cleared his possessions out of the lodge he was at work;  he was not clearing the lodge as a hobby, nor from caprice – he was working.  In answer to a question from the court, counsel accepted that if the wardrobe pole had fallen on him when he was staying in the lodge, as opposed to clearing it out, he would not have been working and the pole would not have comprised work equipment, because he would not have been instructed to clear the lodge.  This, he accepted, distinguished the present case from Robb v Salamis (M & I) Limited 2005 SLT 523, 2007 SC (HL) 71.  However, although counsel did not suggest that the circumstances of the present case were equivalent to those on an offshore rig, they were similar – the semi‑submersible production platform in Robb was only some five miles offshore, and the premises in the present case were in a remote rural location. 

[13]      It was unduly restrictive to consider the issues in this case solely by asking whether the appellant was on or off shift, or whether he was removing his possessions from the lodge in his own time.  He was playing a part in the preparation of the lodge for the arrival of guests;  nothing in the circumstances took him out of working in the course of his employment.  He was charged by the defenders with moving his personal effects out of the lodge. 

[14]      Counsel suggested that there were similarities between the present case and the circumstances in Robb v Salamis, in which the pursuer had sustained injury when descending from his bunk on an offshore installation after placing his weight on a ladder which was insecurely or inadequately fixed.  He relied on the observations of Lord Hope of Craighead at paragraphs 23 to 26 and Lord Rodger of Earlsferry at paragraph 53 when that case was considered in the House of Lords.  He also relied on Spencer‑Franks v Kellogg Brown & Root Limited 2008 SC (HL) 159, [2008] UKHL 46 which was another case involving an accident on an oil rig in the Scottish sector of the North Sea.  Just as the door closer of the rig’s central control room was held to be work equipment in that case, and the pursuer in that case was engaged in “repairing” and so “using” it, so counsel submitted that in the present case the wardrobe and its pole were “apparatus” “for use at work”.  The fact that persons who were not employees of the defenders, such as paying guests occupying the lodge, might also use these items, makes no difference – the use was authorised by the appellant’s employers and was for the purposes of his employment – see Smith v Northamptonshire County Council [2009] ICR 734, [2009] UKHL 27, per Baroness Hale of Richmond at paragraph 35. 

[15]      On the evidence in the present case, not only was the appellant engaged in activity towards the preparation of the lodge to enable paying guests to occupy it, but other employees of the defenders such as cleaners and housekeepers “used” (in the sense of dealt with/came into contact with) the wardrobe and its pole.  Applying the reasoning of Lord Hoffmann in Spencer‑Franks, this wardrobe pole was clearly work equipment.  It was for use at work, and the appellant was working when he was using it. 

[16]      Counsel also referred us to the well-known passages in Marleasing SA v La Comercial Internacional de Alimentacion SA [1993] BCC 421 at paragraphs 7 and 8 and Lawrie‑Blum v Land Baden-Württemberg [1987] ICR 483 at paragraph 18.  He also relied on Gallagher v Kleinwort Benson (Trustees) Limited 2003 SCLR 384 at paragraphs [103] – [106], Kennedy v Chivas Brothers Limited [2013] CSIH 57, Hide v Steeplechase Co (Cheltenham) Limited and others [2013] EWCA Civ 545 and Brown v East Lothian Council 2013 SLT 721. 

[17]      Counsel indicated that the appellant was no longer relying on any breach of the Work at Height Regulations 2005 nor the Management of Health and Safety at Work Regulations 1999. 

 

Submission for the defenders and respondents
[18]      The solicitor advocate for the defenders and respondents accepted that if the pursuer was at work at the time of the accident and the wardrobe pole was, properly construed, work equipment, there was a breach of regulations 4, 5 and 20 of the equipment regulations.  It was his position that the pursuer was not at work, and that the wardrobe pole was not work equipment.  In any event, liability in terms of the workplace regulations was denied. 

[19]      The starting point, it was submitted, was to ascertain the purpose of the wardrobe and pole.  “What is it for? If it is for use at work, then it is work equipment” – Spencer‑Franks per Lord Hoffmann at paragraph [10].  The purpose of the wardrobe was to store clothes – primarily clothes of paying guests, but also those whom the defenders permitted to occupy the lodge in return for payment, such as the appellant.  That purpose is not enough to render the wardrobe or the pole within it work equipment.  The scope of work equipment is limited by the words in regulation 2(1) of the equipment regulations “for use at work (whether exclusively or not)”.  As Lord Hope observed in Smith v Northamptonshire County Council:

“The words ‘for use at work’ indicate that the item must have some practical purpose in connection with work.  This excludes items that are for storage only or for decoration for example, or which cannot be ‘used’ at all such as the floors, walls or ceilings of a building.  Whether those words are satisfied will depend on what is done in or by the undertaking that is under consideration.”

 

Who uses the wardrobe?  The answer is, the paying guests or others occupying the lodge.  Cleaning and housekeeping staff do not use it.  There was no evidence that cleaners were instructed to do anything such as hanging clothes which might be lying on the bed in the wardrobe.  The fact that an item may be cleaned does not render it work equipment.  It was necessary to consider what activities were being carried out at work in the undertaking – Smith at paragraph  21;  Spencer-Franks at paragraphs 51/52.  The fact that something is being cleaned does not render it work equipment.  Although a cleaner or housekeeper might come into contact with the wardrobe, or the pole within the wardrobe, merely coming into contact with something is not enough to render it work equipment. 

[20]      Moreover, an item can cease to be work equipment when it is put to private use – Spencer-Franks at paragraphs [84] and [96].  This is relevant in the present case – the use to which the appellant was putting the wardrobe was an entirely private use, i.e. the storage of his private possessions.  So even if (contrary to the defenders’ submission) the wardrobe was work equipment for the housekeeper, it was not work equipment for the appellant, as he was using it on a purely private basis.  For these reasons the equipment regulations do not apply in this case.

[21]      For the workplace regulations to apply, the lodge would require to fall within the definition of workplace provided by regulation 2(1), namely

“...any premises or part of premises which are not domestic premises and are made available to any person as a place of work and includes (a) any place within the premises to which such person has access while at work...”

 

It is therefore necessary to consider whether the lodge was made available to the appellant as a place of work, or whether it was a place within premises to which he had access while at work.  The lodge was not a place of work for the appellant.  He was in a quite different situation from an employee on an offshore platform (however far offshore the platform was).  The appellant was not obliged to take up any offer of accommodation, unlike the pursuer in Robb v Salamis, who had no option but to use the sleeping accommodation on the platform.  The appellant in this case can no more be said to have been in the course of his employment when removing his possessions from the lodge than when he was sleeping or otherwise using the facilities in the lodge.  We were referred to the Lord Ordinary’s analysis in Brown v East Lothian Council at paragraphs [14/15] and [18/22]. 

[22]      The defenders and respondents could (and did) wear two hats in this situation, as employers and as owners of the lodge.  Similarly the pursuer and appellant could (and did) wear two hats – as employee and as “lodger” or person who has taken up the offer of accommodation.  When the parties were wearing their employer/employee hats, their relationship was regulated by the contract of employment.  When they were wearing their other hats, their relationship was governed by their agreement that the pursuer should use the lodge in return for payment of an agreed sum;  part of that agreement was that he should keep the lodge tidy and move out of it if required. 

[23]      It was for the appellant to bring himself within the ambit of the regulations and to establish that he was in the course of his employment when he was moving his possessions.  He did not establish this in evidence.

[24]      It cannot be said that the requirement that the appellant should keep the lodge tidy meant that when he was removing his possessions from it he was acting in the course of his employment.  Otherwise, he would be in the course of his employment whenever he was in the lodge, as he was always under an obligation to keep it tidy.  Whenever he was washing dishes or dusting, at whatever time of the day or night, he would be at work.  That could not be correct.  The workplace regulations did not apply in the circumstances of this case. 

[25]      Even if the workplace regulations did apply, they were not breached.  The regulation said to have been breached was regulation 5;  even if the wardrobe falls to be regarded as “equipment” (contrary to the earlier submissions), a fault in a wardrobe is not liable to result in a failure to comply with the workplace regulations in the same way that, for example, a pipe which has not been efficiently maintained is liable to result in the workplace being flooded. 

 

Reply for the pursuer and appellant
[26]      Counsel submitted that once it has been established that the wardrobe and pole constituted work equipment for cleaners/housekeepers, it was work equipment for the appellant.  The accident occurred not when the pursuer was storing items for private use, but when he was removing his personal possessions to enable incoming guests to use the lodge.  He was using work equipment, and following the instructions of his employer.  It was accepted that floors and walls fall to be excluded from work equipment, but a wardrobe was in a different category.  It can properly be said that cleaners use the wardrobe;  the court should not adopt an interpretation that would exclude an entire class of workers at the Portavadie site, namely cleaners. 

 

Decision
[27]      The sheriff made four findings in fact and in law, as follows:

“21.        That at the relevant time the pursuer was an employee of the defenders. 

 

22.       That the wardrobe and the metal pole which struck the pursuer were not work equipment. 

 

23.       At the relevant time, when the pursuer sustained his injury, he was not at work. 

 

24.       At the relevant time the pursuer was not at his workplace. “

 

In the particular circumstances of this case, as disclosed in the evidence which the sheriff heard at proof, we are not persuaded that the sheriff has fallen into any error of law in making these findings.  Indeed, on the basis of the evidence which he heard we consider that the sheriff was bound to make these findings, and to grant absolvitor in favour of the defenders.

[28]      For what reason was the wardrobe (and the pole within it) placed by the defenders in the bedroom of this lodge?  The answer, we think, is that it was placed there for the use of paying guests, and other occupants of the lodge, so that they could place their clothes in it.  It was not placed in the room “for use at work”, and there was no evidence before the sheriff that it had some practical purpose in connection with work.  It was an item for the storage of clothes (and other personal possessions), rather than an item for use at work. 

[29]      Counsel for the appellant argued that once it was established that this was work equipment for cleaners/housekeepers employed by the defenders, then it became work equipment for the appellant.  There are two flaws in this argument.  First, the wardrobe (and the pole within) was not in the lodge for use at work, even by cleaners or housekeepers.  It does not follow that because an item is cleaned by a cleaner that its practical purpose is for use at work by the cleaner.  The walls and floors of a place of work may require to be cleaned, but that fact does not render them “work equipment” for the purpose of regulation 2(1) – Smith v Northamptonshire County Council at paragraph [21];  Spencer‑Franks at paragraphs [52/53].  Second, an item may be “work equipment” when it is being used at work, but may not be “work equipment” when it is being used away from work.  A company car used for an entirely private journey (possibly not even by the employee) or the tools of an employed or self-employed builders trade which he uses at home to repair his own sink – these may be work equipment when used at work at one time, but not when used at another time when not at work – Spencer‑Franks per Lord Mance at paragraph [84], and per Lord Rodger at paragraph [51].  Even if (contrary to the view expressed above) the wardrobe and the pole within were items of work equipment for cleaners/housekeepers when they were cleaning the lodge, on the evidence before the sheriff no cleaners or housekeepers came into the lodge when there were no paying guests using it, and when it was simply being occupied in return for payment by an employee.  When the appellant was occupying the lodge (as he was at the time of the accident) there were no other employees of the defenders who had any occasion to come into contact with the wardrobe or the pole within.  It follows (like the company car being driven for an entirely personal reason, perhaps by someone other than an employee) that, at least while the lodge was being occupied by the appellant, the wardrobe and the pole within were not work equipment. 

[30]      Mr Fitzpatrick conceded that if the pole fell on the appellant when he was staying in the lodge, as opposed to clearing it out, it would not be work equipment.  This was because he would not have been instructed to clear out his possessions from the lodge.  This, we consider, is another fallacy in the submissions for the appellant.  Mr Fitzpatrick was at pains to emphasise that when the defenders asked the appellant to remove his personal possessions from the lodge so that it could be used by a paying guest, this was an instruction given to an employee by his employer in the context of a contract of employment.  Counsel was not prepared to accept that the defenders might wear two hats, as employers and as owners of the lodge, or that the appellant might wear two hats, as employee and as occupier of the lodge.  For our part, we see no reason why the parties in this situation should not be described as each wearing two hats.  There is nothing in the evidence to indicate that the request by the defenders to the appellant that he should vacate the lodge was made in the context of his contract of employment, rather than in the context of the agreement that he should be allowed to occupy the lodge in return for weekly payment.  The appellant was not obliged by his contract of employment to live in accommodation provided for him by his employers – he could have lived anywhere.  He chose to live in accommodation provided by the defenders, because it was cheap and convenient.  No doubt it was convenient also for the defenders that he should live somewhere close to Portavadie Marina (about a 10 minute walk from the kitchens).  However, his occupancy of the lodge did not form part of his contract of employment;  rather, it was regulated by an informal agreement between the appellant and the defenders.  There were several elements to this agreement;  one of these was that the appellant would pay £15 per week to the defenders in return for his occupancy of the lodge, which sum would be deducted from his wages.  Others were that the appellant would keep the lodge clean and tidy, that he would not hang any pictures on the walls, and that he would remove himself promptly if the lodge was required by paying guests.  All of these things happened:  the appellant paid a weekly sum in return for his occupation of the lodge, he did not hang pictures on the walls, he kept the lodge clean and tidy, and he vacated the lodge when it was required for paying guests.  He was asked to vacate the property and remove his personal possessions from it several days before the lodge was required for paying guests.  We see no reason to categorise this request as an instruction from the employer in the course of the contract of employment;  rather, we consider that it is to be categorised as a request given by the owner of the lodge to the temporary occupier of it.

[31]      In summary, the appellant sustained injury when he was removing his own personal possessions from a wardrobe in premises that he occupied otherwise than as a result of his contract of employment with the defenders.  He had been given several days warning that he should do so, and he could have removed these possessions from the wardrobe at any time of the day or night.  Having moved out of the lodge, he moved into accommodation not provided for him by the defenders.  During the time that he was occupying the lodge, and at the time of the accident, there were no fellow employees of the defenders who came into the lodge in the capacity of cleaners or housekeepers.

[32]      Counsel for the appellant’s submissions depended crucially on the argument that the instruction to clear out of the lodge came from the defenders as employers of the appellant.  As noted above, when asked by the court if the wardrobe pole had fallen on him when he was staying in the lodge as opposed to clearing it out, would it be work equipment, counsel replied that it would not, because the appellant would not have been instructed to do this.  However, as we have indicated, there is in our view nothing in the evidence before the sheriff to indicate that the request that he move out of the lodge within a matter of days, had to be categorised as an instruction from an employer to his employee, rather than from an owner of property to the temporary occupier thereof.

[33]      In the particular circumstances of this case we therefore answer the first of the three issues identified at the outset of this opinion in the negative – the wardrobe pole was not “work equipment provided by the defenders for use or used by an employee of theirs at work” for the purpose of the equipment regulations, when it fell and injured the appellant.  The appellant was not at work when the accident happened – he was removing his personal possessions from the accommodation which he occupied, but there was nothing in the evidence to establish that he was doing so as a result of an instruction given to him in the course of his employment rather than in the context of his agreement with the defenders that he should be permitted to occupy the lodge on a temporary basis.  The lodge was not, at the time of the accident, a workplace for the purpose of the workplace regulations. 

[34]      In the circumstances we do not find it necessary to address the last argument advanced on behalf of the defenders and respondents, to the effect that, even if the wardrobe falls to be regarded as “equipment” there has been no breach of article 5 of the workplace regulations.  Moreover, as indicated above, counsel for the appellant expressly departed from the case based on the Work at Height Regulations 2005 and the Management of Health and Safety at Work Regulations 1999, so we express no views on these.  For the reasons given above, we shall refuse this appeal, and affirm the interlocutors of the sheriff dated 11 and 22 July 2013.