Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland), [2008] UKHL 46

In 2003, the pursuer was employed as a mechanical technician by Kellogg Brown and Root Ltd (“KBR”), then a subsidiary of Halliburton which supplies services to the offshore oil industry. KBR contracted to supply workers to operate the Tartan Alpha platform in the Scottish sector of the North Sea, which was operated by Talisman Energy (UK) Ltd (“Talisman”). The pursuer was one of the workers which KBR supplied to work on the platform.

In October 2003, the closer on the door of the central control room was not working properly and the appellant was asked to inspect and repair it. In the course of removing the closer to take it away for repair, the appellant half turned a screw which held the linkage arm to the door frame. This should not have disengaged the screw. However, the screw pulled out and the arm struck the pursuer in the face. He lost four teeth which had to be replaced by implants.

The pursuer raised an action against KBR and Talisman in the sheriff court claiming that each of them had been in breach of its obligations under the Provision and Use of Work Equipment Regulations 1998 (“the equipment regulations”).

The pursuer submitted that the incident was covered by the equipment regulations as the door closer was a piece of machinery or apparatus for use at work. The defenders took pleas to the relevancy on the ground that the door closer could not be work equipment within the meaning of the regulations.

The sheriff sustained the plea of KBR, the employer, on the ground that although the door closer was “work equipment", the employer had no control over it and the regulations therefore did not impose responsibility upon it. On the other hand, Talisman, the operator, did have control. He therefore repelled their plea to the relevancy and allowed the pursuer's proof.

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

The pursuer appealed to the House of Lords.

The House of Lords held (unanimously) that the door closer was work equipment and that the appellant was using the door closer when he was injured. The work equipment regulations used the words “for use at work.” The door in question was used to enter and exit the control room and everyone using the control room was using it for the purposes of their work. Consequently, the closer attached to that door was work equipment. The door closer did not cease to be work equipment because it had broken down or was being repaired.

The House of Lords went on to hold that it could not be excluded by some implied qualification. For example, it rejected the argument that the equipment regulations impliedly excluded apparatus which formed part of the premises upon which the work took place. The House of Lords noted that this might have been a good argument for ordinary work premises on land but not for equipment which was attached to an offshore platform. Reference was made to Regulation 5(1) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976.

The House of Lords allowed the appeal, recalled the interlocutors of the Court of Session and the Sheriff and allowed the parties a proof.