Stark v Post Office [2000] EWCA Civ 64

Mr Stark, a postman, was injured when his Post Office bicycle’s front brake stirrup broke due to an undiscoverable defect. Although the employer was not negligent, the Court of Appeal held that regulation 6(1) of the 1992 Work Equipment Regulations imposed an absolute duty, making the Post Office liable.

Facts

Mr Stark, aged 60, was employed as a delivery postman by the Post Office. The Post Office provided him with a bicycle for his delivery work. On 29 July 1994, while riding the bicycle in the course of his employment along Padstow Close, Bransholme, Hull, the front wheel suddenly locked, propelling him over the handlebars and causing serious injury.

The accident occurred because the stirrup, a component of the front brake, fractured and part of it lodged in the front wheel. The judge at first instance found that the fracture was caused either by metal fatigue or a manufacturing defect, and that it was not detectable on inspection.

the “defect would not and could not have been discoverable on any routine inspection” – “a perfectly rigorous examination would not have revealed this defect”.

The bicycle was in its fourteenth year of service. The Post Office operated a general policy of replacing bicycles after ten years, but this was not an inflexible rule; they sometimes retained bicycles considered still serviceable. The judge held that had the bicycle been replaced at ten years the accident would have been avoided, but he did not find any fault in the Post Office’s decision to keep it in service.

The claim in negligence failed at first instance and no appeal was brought against that finding. The remaining claim was for breach of statutory duty under the Provision and Use of Work Equipment Regulations 1992 (PUWER 1992), specifically regulation 6(1). Before the Court of Appeal the claimant no longer relied on regulation 5.

Issues

The central issue was the proper construction of regulation 6(1) of PUWER 1992 and whether it imposed an absolute duty on employers, breach of which is established simply by showing that the work equipment was not in an efficient state or in efficient working order at the relevant time, regardless of the employer’s fault or the discoverability of the defect.

Regulation 6(1) provides:

“Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.”

The dispute focused on:

• whether regulation 6(1) concerned only the institution of a proper maintenance system (a duty of care), or whether it imposed a result-based, absolute duty;
• whether the regulation extended to matters of replacement as well as maintenance;
• the relevance of earlier authorities on similar statutory wording, including Galashiels Gas Co Ltd v Millar, Hamilton v National Coal Board and Smith v Cammell Laird;
• the extent to which the Work Equipment Directive 89/655 and the Framework Directive 89/391/EEC, which PUWER 1992 were designed to implement, affected the construction of regulation 6(1); and
• whether, given the criminal sanctions under the Health and Safety at Work etc. Act 1974 for breach of regulation 6(1), the court should favour a construction avoiding absolute criminal liability.

Judgment

Approach at first instance

The trial judge expressed the view that regulation 6(1) might import strict liability, but he also suggested the primary obligation was to institute and operate an effective maintenance system, which he found the Post Office had done. He therefore concluded there was no breach of statutory duty and dismissed the claim.

“On the face of the matter therefore it seems that this regulation may import strict liability into this part of the law. On the other hand, it seems to me the primary obligation is to institute and carry out a system of maintenance to the very best of their ability and this the Post Office did.”

Court of Appeal: construction of regulation 6(1)

In the Court of Appeal, the case was argued on a more developed legal basis. Mr Redfern QC for the claimant argued that regulation 6(1) imposed an absolute obligation. Work equipment was defined in regulation 2(1) in terms broad enough to cover the bicycle. On his argument, if the bicycle was not working efficiently at the time of the accident, whatever the cause, the employer was in breach.

He relied on earlier House of Lords decisions where similar wording had been interpreted as creating an absolute statutory duty, notably Galashiels Gas Co Ltd v Millar, which concerned the Factories Act 1937. The headnote there, quoted in the judgment, stated:

“By s. 22, sub-s. 1, an absolute and continuing obligation is imposed, so that proof of any failure in the mechanism of a hoist or lift establishes a breach of the statutory duty, even though it was impossible to anticipate that failure before the event or to explain it afterwards and even though all reasonable steps have been taken to provide a suitable hoist or lift and to maintain it properly.”

Passages from the speeches of Lord Morton and Lord MacDermott in Galashiels were cited, emphasising that the statutory phrase “maintained in an efficient state, in efficient working order, and in good repair” describes a result to be achieved (continuing efficient operation) rather than merely the steps taken in maintenance.

The Court of Appeal noted that regulation 6(1) adopts, almost verbatim, the statutory definition of “maintained” from the Factories Act 1937, which had been central to the reasoning in Galashiels. Waller LJ observed that this drafting choice strongly indicated an intention to adopt the same strict meaning.

Arguments based on the European Directives

For the Post Office, Mr Storey QC submitted that, whatever earlier domestic authorities said about similar wording, PUWER 1992 must be read in the light of the Work Equipment Directive 89/655 and the Framework Directive 89/391/EEC. He argued that the Directives did not contemplate absolute obligations, particularly given that regulation 6(1) was all-encompassing as to work equipment and that breach carried criminal sanctions under the 1974 Act without an express statutory “escape clause”.

He contended that the word “maintained” in regulation 6(1) should be coloured by regulation 6(2), which refers to a “maintenance log”, and should therefore be read as imposing obligations regarding systems of servicing and care rather than an absolute duty as to end result. In order to avoid absolute liability, he suggested, various qualifying words (for example, “where possible” or “as far as is reasonably practicable”) should be implied into the regulation.

Waller LJ rejected these submissions. As a matter of ordinary language, the suggested substitutions for “maintained” did not fit the text of regulation 6(1). There was no genuine ambiguity justifying the reading in of additional words. The regulation used terms that had already been authoritatively construed in the same statutory context of worker safety as imposing an absolute duty. The use of the 1937 definition made the intention “could not be more clear”.

Turning to the Directives, Waller LJ accepted that the wording of the Work Equipment Directive did not require Member States to impose absolute duties. However, he emphasised, relying also on commentary in Redgrave’s Health and Safety, that the Directives set only minimum standards and positively discouraged the lowering of pre-existing national standards. The preambles to the Directives referred to “minimum requirements” and to maintaining levels of protection already achieved.

Accordingly, the Directives did not prevent the United Kingdom from imposing more stringent obligations, including absolute duties, where it chose to do so, and indeed encouraged the preservation of higher standards already in place. Waller LJ observed that section 22 of the Factories Act 1961, the successor to the provision considered in Galashiels, still imposed an absolute duty notwithstanding amendments made to implement requirements concerning maintenance records.

He concluded that there was no basis in the Directives for diluting the clear domestic meaning of the wording adopted in regulation 6(1). The purposive approach to construction in the light of EU obligations, as discussed in Litster v Forth Dry Dock, did not assist the employer’s argument.

Criminal liability and penal construction

Mr Storey drew attention to the absence in the Health and Safety at Work etc. Act 1974 of an equivalent to section 155 of the Factories Act 1937, which had provided a form of defence in criminal proceedings. He argued that this context called for a more lenient interpretation of regulation 6(1), invoking principles of strict construction of penal provisions as discussed in cases such as London and North Eastern Railway Co v Berriman.

Waller LJ referred to the caution against over-reliance on such a canon where the statutory language is clear and, following the approach in earlier authorities, declined to find ambiguity in order to avoid penal consequences. In his view, the words of regulation 6(1) were unambiguous and deliberately chosen.

Finding of breach and outcome

The Court of Appeal held that regulation 6(1) imposes an absolute duty on the employer to ensure that work equipment is maintained in an efficient state and in efficient working order. The failure of the bicycle’s brake stirrup, rendering the bicycle not in an efficient state or efficient working order at the time of the accident, established a breach, even though the defect was undiscoverable and the employer had operated an adequate maintenance system.

Waller LJ stated that, in consequence, the Post Office was in breach of its statutory duty and that the appeal should be allowed, with judgment entered for Mr Stark and damages to be assessed. Robert Walker LJ agreed.

“In those 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 in efficient working order when the stirrup broke, the Post Office were in breach of their statutory duty.”

“In those circumstances I would allow the appeal and enter judgment for Mr Stark with damages to be assessed.”

The formal order recorded:

“Order: Appeal Allowed. Judgment for Claimant with damages to be refused; Claimants costs here and below; Leave to appeal to House of Lords refused. (Order does not form part of the approved judgment.)”

Implications

The decision confirms that regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 imposes an absolute, result-based duty on employers. Liability for breach arises whenever work equipment fails to be in an efficient state or efficient working order, even if the employer has taken all reasonable steps to maintain it and the defect was latent and undiscoverable.

The case reinforces earlier House of Lords authority on similar wording in worker-safety legislation and illustrates that implementation of EU minimum standard Directives does not prevent the United Kingdom from maintaining or imposing stricter domestic safety obligations. It has significant implications for employer’s liability in personal injury claims involving work equipment, underscoring that compliance with reasonable maintenance systems may not suffice where the statutory wording is framed in absolute terms.

Verdict: Appeal allowed; the Court of Appeal held that regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 imposes an absolute duty, found the Post Office in breach of statutory duty, and ordered judgment for Mr Stark with damages to be assessed.

Source: Stark v Post Office [2000] EWCA Civ 64