Learning Outcomes
This article explains the employer’s duty to provide safe plant and equipment within the wider non-delegable duty at common law to ensure employee safety. It details the scope and content of that duty for equipment and machinery; the reasonable employer standard as applied to selection, maintenance, inspection, information and training; the operation of the Employer’s Liability (Defective Equipment) Act 1969 as a deeming provision where third-party fault causes a defect; the evidential role of statutory regulations such as PUWER 1998 post-Enterprise and Regulatory Reform Act 2013; and typical defence arguments, including contributory negligence, rare consent scenarios, and industry practice.
SQE1 Syllabus
For SQE1, you are required to understand the employer's duty to provide safe plant and equipment and related statutory context, with a focus on the following syllabus points:
- the content and scope of the employer's common law duty to provide safe plant and equipment.
- the non-delegable nature of this duty.
- the standard of care expected from a reasonable employer.
- how statutory provisions, such as PUWER 1998 and the Employer's Liability (Defective Equipment) Act 1969, supplement the common law position.
- potential defences available to an employer in claims related to defective equipment.
- the breadth of “equipment” (including work vehicles and structures) and implications for liability.
- the role of PPE: provision, instruction and enforcement; and how employee non-compliance may be treated.
- the evidential significance of industry standards and statutory guidance when assessing breach.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- True or False: An employer can delegate their common law duty to provide safe equipment to an independent contractor?
- Which Act imposes liability on an employer for injury caused by equipment defects attributable to a third party (like the manufacturer)?
- What is the general standard of care expected of an employer regarding equipment safety?
Introduction
An employer owes several duties to their employees under common law to ensure their safety at work. One of the fundamental duties established in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 relates to the provision of adequate plant and equipment. This means employers must take reasonable steps to ensure that the machinery, tools, and equipment provided for employees are safe and suitable for the tasks they are required to perform. This article focuses specifically on this aspect of the employer's primary liability in negligence, exploring its scope, the standard of care required, and its interaction with statutory duties. Understanding this duty is essential for assessing liability in workplace accident scenarios involving equipment.
Key Term: Non-delegable duty
A duty the employer personally owes and cannot discharge by entrusting performance to others. The employer remains responsible for ensuring reasonable care is taken, even where work is done by an independent contractor.
The Common Law Duty: Safe Plant and Equipment
Employers have a common law duty to take reasonable care to provide adequate plant and equipment for their employees. This duty forms part of the broader non-delegable duty of care owed by an employer to ensure the safety of their employees during their employment.
Where work is performed at premises or on equipment controlled by a third party, the duty still lies with the employer. In McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906, an employer could not avoid liability by arguing that the unsafe system and equipment were under another company’s control: the duty remained personal and non-delegable.
Scope of the Duty
The duty extends beyond merely supplying equipment. It encompasses ensuring the equipment is suitable for its intended purpose, is properly maintained, and is safe to use. This includes providing necessary safety features, such as guards on machinery, and appropriate personal protective equipment (PPE) where risks cannot be eliminated. It also extends to vehicles and work-provided structures used as part of the employer’s business.
Key Term: Adequate Plant and Equipment
This refers to machinery, tools, appliances, and any other items provided by the employer for use in the course of employment. The equipment must be suitable for the task and maintained in a safe condition.
The definition of “equipment” is wide. In Knowles v Liverpool City Council (HL), a flagstone supplied for work was treated as “equipment” for the purposes of the 1969 Act. Similarly, in Coltman v Bibby Tankers (HL), a ship fell within “equipment” for employer’s liability purposes. The breadth of the term ensures a focus on function and use: if it is furnished for the employer’s business, it is likely to be considered equipment.
In addition to supply, the duty includes:
- selection and procurement: choosing appropriate tools and machinery with known safety performance.
- commissioning and installation: ensuring equipment is set up safely with proper guards, emergency stops and interlocks.
- inspection and maintenance: implementing proportionate preventative maintenance and checks.
- information and instructions: providing clear, accessible user information.
- training and supervision: ensuring users are competent and supervised where necessary.
- monitoring and enforcement: enforcing safe use (including PPE) and intervening if unsafe practices arise.
Key Term: Personal Protective Equipment (PPE)
Equipment worn or used to protect the user against health and safety risks (e.g., goggles, gloves, safety boots). PPE is a last line of defence where risks cannot otherwise be eliminated or adequately reduced.
Maintenance and Inspection
Part of providing safe equipment involves ensuring it remains safe throughout its use. This requires employers to implement regular systems of inspection and maintenance. Failure to maintain equipment properly, leading to an accident, can constitute a breach of duty.
A proportionate maintenance regime has three typical elements:
- risk-based planning: base maintenance intervals and depth of inspection on the risk of deterioration and severity of harm if failure occurs.
- competent performance: ensure those undertaking maintenance and inspections are suitably skilled and trained, with adequate supervision.
- records and review: keep records of checks, defects, remedial actions, and use review cycles to learn from incidents and near misses.
Older case law suggested an employer might avoid liability if the defect was undiscoverable by reasonable inspection and the item had been bought from a reputable supplier (e.g., Davie v New Merton Board Mills). However, Parliament altered this position for defects attributable to third-party fault through the Employer’s Liability (Defective Equipment) Act 1969.
Revision Tip Where cause is unclear but equipment injury occurred under the employer’s (or their agents’) control, res ipsa loquitur may help a claimant establish breach, shifting the evidential burden to the employer to show the accident could occur without negligence.
Key Term: Res ipsa loquitur
A proof aid allowing inference of negligence where the thing causing damage was under the defendant’s control, the accident is of a type not ordinarily occurring without negligence, and the cause is unknown.
Employer's Liability (Defective Equipment) Act 1969
This Act significantly impacts the employer's liability. It provides that where an employee suffers injury in the course of their employment due to a defect in equipment provided by the employer, and that defect is wholly or partly attributable to the fault of a third party (such as the manufacturer), the injury is deemed also to be attributable to the employer's negligence.
Key Term: Defective Equipment
Equipment with a fault or flaw that renders it unsafe for its intended use, potentially causing injury. Under the 1969 Act, liability can arise even if the defect was caused by a third party.
The effect is to deem the employer negligent for the injury caused by the defect, even if the employer exercised reasonable care in procurement and could not have discovered the defect. “Fault of a third party” includes manufacturers, component suppliers and contractors responsible for maintenance, modification or inspection who introduce or fail to detect a defect.
Two practical implications:
- the employee may sue the employer directly rather than a manufacturer or contractor, avoiding complex product liability routes.
- the employer may then pursue contribution or indemnity from the at-fault third party under the Civil Liability (Contribution) Act 1978.
Standard of Care: The Reasonable Employer
The standard of care expected is that of the reasonable and prudent employer. This involves assessing the risks associated with the equipment and taking proportionate steps to mitigate those risks. Factors considered include:
- The likelihood of harm occurring.
- The potential severity of the harm.
- The cost and practicability of taking precautions.
- Common practice within the industry (though compliance with common practice is not conclusive evidence of meeting the standard).
- State of knowledge at the time (what a reasonably informed employer ought to have known about the risk and available precautions).
The employer must consider the individual circumstances of the employee. For example, in Paris v Stepney Borough Council [1951] AC 367, an employer was found negligent for not providing safety goggles to a one-eyed employee, even though it was not standard practice for two-eyed employees doing the same work, because the consequences of injury were much more severe for that specific employee.
PPE gives rise to two related duties: provide suitable PPE where residual risk remains, and take reasonable steps to ensure it is used. In Bux v Slough Metals [1973] 1 WLR 1358, the court emphasised employers should not only supply goggles but also take reasonable steps—through instruction, supervision and, where appropriate, discipline—to ensure PPE is worn. If PPE is available and the employer has taken reasonable measures to enforce its use, the employee’s failure may be treated as contributory negligence.
Key Term: Standard of care
The measure of what a reasonable employer would do in the circumstances to avoid foreseeable harm, considering likelihood and gravity of injury, practicality and cost of precautions, and contemporary knowledge.
Worked Example 1.1
An employee, Maya, is injured when a grinding machine malfunctions due to a worn-out component. Her employer, Factory Ltd, had purchased the machine from a reputable supplier six months ago and had followed the manufacturer's basic maintenance schedule. However, a more detailed inspection, common in the industry for this type of machine after five months of use, would have revealed the wear. Is Factory Ltd likely to be in breach of its duty?
Answer:
Yes, Factory Ltd is likely in breach. The standard is that of the reasonable employer, which includes adhering to industry best practices for inspection, especially for potentially dangerous machinery. Failing to conduct the more detailed inspection, even if following the manufacturer's minimum schedule, arguably falls below the standard of reasonable care expected in the circumstances, given the industry practice.
Interaction with Statutory Duties (PUWER 1998)
While civil liability for breach of health and safety regulations made under the Health and Safety at Work etc. Act 1974 is largely excluded by s.47 HSWA (as amended by the Enterprise and Regulatory Reform Act 2013), these regulations still inform the standard of care expected at common law. The Provision and Use of Work Equipment Regulations 1998 (PUWER) impose specific duties regarding equipment suitability (Reg 4), maintenance (Reg 5), inspection (Reg 6), information/instructions (Reg 8), and training (Reg 9).
Key Term: PUWER 1998
Regulations requiring suitable, safe work equipment; proper maintenance and inspection; and adequate information and training for users.
Failure to comply with PUWER standards, while not directly actionable in tort by the employee, provides strong evidence that the employer has breached their common law duty of care. For example:
- Reg 4: ensure work equipment is suitable for the task and conditions.
- Reg 5: maintain equipment in an efficient state, in efficient working order and good repair.
- Reg 6: inspect equipment liable to deterioration to ensure safety and keep records.
- Reg 8: provide adequate information and instructions on equipment use.
- Reg 9: ensure users receive adequate training.
These provisions align with the measures a reasonable employer should take at common law. Demonstrable compliance usually weighs against breach; demonstrable non-compliance often supports breach.
Revision Tip
Remember that the common law duty regarding equipment is non-delegable. An employer cannot escape liability by arguing they relied on an external contractor for maintenance or inspection if that contractor was negligent. The employer remains responsible for ensuring reasonable care is taken.
Exam Warning
Do not confuse the employer's primary liability (the duty to take reasonable care for the employee's safety, including providing safe equipment) with vicarious liability (liability for the torts committed by another employee). A claim regarding faulty equipment provided by the employer falls under primary liability.
Worked Example 1.2
Chen works for BuildCo Ltd on a construction site. He is provided with a ladder which appears sound but has a latent defect (a hidden crack) caused during manufacture. The defect was not discoverable by reasonable inspection by BuildCo Ltd. The ladder breaks while Chen is using it, causing him injury. Can Chen sue BuildCo Ltd?
Answer:
Yes. Under the Employer's Liability (Defective Equipment) Act 1969, BuildCo Ltd is deemed negligent because Chen's injury resulted from a defect in equipment provided by the employer, and the defect was attributable to the fault of a third party (the manufacturer). BuildCo Ltd is liable even though it could not have discovered the defect through reasonable inspection.
Worked Example 1.3
An engineer, Rina, suffers an eye injury when molten metal splashes as she removes a blockage. Her employer had issued suitable goggles and displayed clear instructions requiring their use. Supervisors regularly checked compliance and intervened where needed. Rina was not wearing the goggles at the time. Is the employer liable?
Answer:
The employer is likely to have discharged its duty if PPE was suitable and available, instructions were clear, training provided, and reasonable steps were taken to enforce use. Rina’s failure may amount to contributory negligence, leading to a reduction in damages rather than defeating the claim altogether.
Worked Example 1.4
A packaging machine injured Sam after a protective guard was removed during servicing by an external maintenance contractor engaged by the employer. The guard was not refitted, and the employer did not verify the machine before returning it to service. Is the employer liable?
Answer:
Yes. The employer’s duty is non-delegable; relying on a contractor does not absolve the employer. In addition, the defect (missing guard) is attributable to third-party fault, so the 1969 Act would deem the employer negligent for the injury. Independently of the Act, failing to verify safe recommissioning after maintenance likely falls below the standard of the reasonable employer.
Worked Example 1.5
A press unexpectedly cycles and crushes an operator’s hand. The cause is initially unknown. The press and safeguards are under the employer’s control. Can the claimant rely on res ipsa loquitur?
Answer:
Potentially yes. This is the kind of accident that does not ordinarily occur without negligence where the press and its safeguards are under the employer’s (or their responsible agents’) control, and the precise cause is unknown. The inference is rebuttable, but unless the employer provides a credible explanation consistent with due care, breach may be inferred.
Further points on standard and defences
- Industry practice: It may inform (but does not fix) the standard. If common practice is unsafe, adherence will not exonerate the employer. Conversely, demonstrable compliance with robust industry standards supports reasonableness.
- Cost and practicability: Expensive steps may be required if risk is grave and likely; conversely, disproportionately costly measures for very remote risks may not be required (Latimer v AEC).
- Contributory negligence: Employees may be found contributorily negligent where their carelessness contributes to injury (e.g., ignoring PPE requirements). However, courts assess contributory negligence realistically in hazardous workplaces (Caswell v Powell Duffryn Associated Collieries), and the defence reduces damages rather than eliminating liability.
- Consent (volenti): Rare in employment. Economic pressure, obligation to work and the employer’s overarching duty mean employees seldom “freely accept” risk; consent generally fails unless facts are exceptional.
- Exclusions: Attempts to exclude liability for negligence causing personal injury are invalid under the Unfair Contract Terms Act 1977 s.2(1). Contractual disclaimers are not a route to negate primary duties to provide safe equipment.
Key Term: PPE enforcement
The reasonable employer not only supplies suitable PPE but also instructs, trains, supervises and, where appropriate, enforces its use to manage residual risk effectively.
Key Point Checklist
This article has covered the following key knowledge points:
- Employers owe a common law duty to take reasonable care to provide employees with adequate and safe plant and equipment.
- This duty includes ensuring equipment is suitable, maintained, inspected, and accompanied by adequate information, instruction, training and supervision.
- The duty is non-delegable; the employer remains liable even if tasks are delegated to contractors.
- The standard of care is that of the reasonable employer, considering risk likelihood and gravity, practicability, cost, industry practice and contemporary knowledge.
- The Employer's Liability (Defective Equipment) Act 1969 imposes liability on employers for defects caused by third-party fault (including manufacturers and contractors).
- Statutory regulations like PUWER inform the standard of care required at common law, although civil actions based solely on breach of those regulations are generally excluded.
- PPE must be suitable and its use reasonably enforced; employee failures may lead to contributory negligence rather than defeat liability.
- Proof aids such as res ipsa loquitur can assist claimants where an unexplained equipment accident occurs under the employer’s control.
Key Terms and Concepts
- Adequate Plant and Equipment
- Defective Equipment
- Non-delegable duty
- Personal Protective Equipment (PPE)
- PUWER 1998
- Standard of care
- Res ipsa loquitur
- PPE enforcement