Neutral Citation Number: [2017] EWCA Civ 125
Case No: B3/2014/3952
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT IN LIVERPOOL
Recorder Edge
2YN62693
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3 March 2017
Before:

LORD JUSTICE PATTEN
LORD JUSTICE SALES
and
LORD JUSTICE DAVID RICHARDS
- - - - - - - - - - - - - - - - - - - - -
Between:

	PETER CASSON	Appellant	
	- and -		
	(1) REVEREND PHILIP HUDSON  
(2) PAROCHIAL CHURCH COUNCIL OF ST WILFRED’S CHURCH MERESIDE 	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Peter Sigee (instructed by Porters Solicitors) for the Appellant
Zoe Thompson (instructed by Plexus Law) for the Respondents

Hearing dates: 9 November 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Lord Justice David Richards: 
1.	Peter Casson appeals against the dismissal of his claim for damages in respect of injuries sustained by him when he fell from a ladder, while carrying out decorating work at the St Wilfred’s Church Hall in Mereside, Blackpool.
2.	Mr Casson framed his claim in negligence and for breach of statutory duty under various regulations. He alleged that he was owed duties as an employee of the Respondents, but not all his claims depended on establishing an employment relationship. The case was heard by Recorder Edge, sitting in the County Court at Liverpool, who rejected the case that Mr Casson had been an employee and dismissed the claim in its entirety. Mr Casson does not challenge the decision that he was not employed by the Respondents and his appeal is limited to a claim for breach of statutory duty under The Provision and Use of Work Equipment Regulations 1998 (SI 1998 No 2306) (the Regulations). Permission to appeal was granted by Floyd LJ.
3.	The uncontroversial facts were as follows. At the material times, Mr Casson was a serving prisoner at HMP Kirkham. He had been granted resettlement day release in November 2008 and until September 2009 he had been working at the Mereside Community Centre. He then transferred to the church hall, as a general handyman. He was supervised at both places by Lisa Reid, a community worker at the community centre. He accepted that Ms Reid had told him not to use ladders. He also accepted that he had read and signed a placement memorandum of understanding that stated, among other things, that he was not permitted to use ladders. On 10 December 2009, Mr Casson fell from near the top of a 15-rung metal ladder that belonged to the Respondents and was kept at the church hall. It was in good condition. It had rubber feet and the floor was not slippery. Mr Casson was, he says, clearing cobwebs and dust off a wall using a brush in his right hand, in preparation for painting it, when the ladder slipped and moved from its position. It moved due to a combination of Mr Casson reaching out from the ladder and the fact that it was un-footed. Mr Casson suffered serious injuries, from which he has not made a full recovery. 
4.	Witness statements were provided by Mr Casson, Mr Hudson (the first Respondent) and Margaret Hayhurst, a member of the Parochial Church Council. Mr Casson and Mrs Hayhurst gave oral evidence, but Mr Hudson’s health prevented him from doing so. The recorder admitted his witness statement in evidence but, as he could not be cross-examined, he attached very little weight to it, except where it was corroborated by others. He did not find Mr Casson to be a satisfactory witness. Even allowing for the passage of time, he regarded his oral evidence as at times unreliable and there were parts of his evidence that he rejected entirely. He found Mrs Hayhurst’s evidence to be reliable and, where there were inconsistencies between her evidence and Mr Casson’s, he preferred the evidence of Mrs Hayhurst.
5.	The recorder made the following findings in respect of matters that were not common ground. The Respondents did not provide Mr Casson with instructions in respect of his work for them or supervise him in that work. He considered himself to be, and was treated by the Respondents as being, independent and unfettered in his activities. Mr Casson was not instructed by the Respondents to carry out any painting and decorating at the hall. The painting and decorating done by him was done at his own initiative and instigation. The interior of the hall did not need painting as it had recently been painted. His painting was limited to the entrance hall and was not as extensive as he maintained. Before the accident Mrs Hayhurst had not seen him using or working from a ladder. 
6.	By his appeal, Mr Casson seeks to challenge the recorder’s interpretation of the Regulations as erroneous and to challenge his findings of fact in two respects. In the course of his submissions on behalf of Mr Casson, Mr Sigee stated that Mr Casson needed to succeed on at least one of those challenges to the factual findings before he could succeed in his claim under the Regulations. For that reason, I shall first consider those challenges.
7.	What are said to be the two critical errors are, first, the finding that Mr Casson was not instructed by the Respondents to carry out painting and decorating at the hall and that this was done at his own initiative and, second, the recorder’s acceptance of Mrs Hayhurst’s evidence that at no time before the accident had she seen Mr Casson using or working from a ladder.
8.	I will take the second of those challenges first. It was common ground that there were kept at the church hall the long 15-rung ladder and also a shorter double-sided stepladder. In her oral evidence, Mrs Hayhurst volunteered that she had seen Mr Casson using the stepladder, but not the long ladder. Given that the recorder regarded Mrs Hayhurst as a reliable witness, it is clear that where he says in his judgment that “I also accept Mrs Hayhurst’s statement [in her oral evidence] that at no time prior to the accident had she seen the claimant using or working from a ladder”, he was referring to the long ladder. There is nothing in this challenge to the recorder’s findings.
9.	The first challenge hinges on oral evidence given by Mr Casson that Mr Hudson told him that he had a telephone discussion with the prison authorities in which they suggested that Mr Casson could do some painting at the hall. Mr Casson said that, in the light of that discussion, Mr Hudson instructed him to paint the hall and showed him the ladders. Reliance was also placed on evidence given by Mrs Hayhurst that she was told by Mr Hudson that, in a telephone call to the prison authorities, he had told them that there was not enough for Mr Casson to do and they suggested that he could do some painting. She saw him touching up the paintwork in the entrance hall. While corroborating Mr Casson's evidence of a conversation between Mr Hudson and the prison authorities, it does not corroborate that Mr Hudson instructed Mr Casson to paint the hall and showed him the ladders.
10.	The recorder in his judgment at [19] made a clear finding that Mr Casson was not instructed by the Respondents to carry out any painting and decorating at the hall, but that this work was carried out at his own initiative. He thereby rejected Mr Casson's evidence. He did not go on to deal expressly with the evidence that Mr Hudson had shown him the ladders, but that is essentially part of the evidence of the instruction. Mr Casson did not suggest that Mr Hudson showed him the ladders other than as part of his alleged instruction to paint the hall.  It is noteworthy that this evidence did not feature in Mr Casson's witness statement, but was given orally. The furthest he went in his statement was to say that Mr Hudson told him that if he saw any DIY task that needed doing – including any painting – he was to do it. He nowhere suggests that he was shown the ladders by Mr Hudson. Having formed the view that Mr Casson was not a reliable witness, the recorder was fully entitled to reject the evidence that is now sought to be relied on, and did not need separately to address the allegation that Mr Hudson showed him the ladders. It is said that Mr Casson does not know from the judgment why this evidence was rejected. The answer is that the recorder did not believe him. It is as simple as that.
11.	I would therefore dismiss these challenges to the findings of fact.
12.	As regards the interpretation and application of the Regulations, it is submitted that the recorder wrongly applied regulation 3(3)(b). The Regulations impose a number of different duties, as to the suitability, maintenance and inspection of work equipment and as to the provision of information, instructions and training to employees and others covered by the Regulations.
13.	"Work equipment" is defined in regulation 2(1) as "any machinery, appliance, tool or installation for use at work (whether exclusively or not)" and "use" is defined as "any activity involving work equipment..."
14.	Regulation 3(2) provides that the requirements imposed by the Regulations "on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work". Regulation 3(3) applies those requirements outside the context of employment:
“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.”

15.	Regulation 3(4) provides that any reference in paragraph 3(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)".
16.	The recorder dealt shortly with the claim under Regulation 3(3) at [21] – [22]:
“21….I am entirely satisfied that the defendants did not assume control over the claimant in any way during the time that he spent carrying out some work at the Hall.  It is quite clear to me that the defendants did not direct how the claimant carried out his work, did not seek to control the claimant, did not in fact control the claimant, and/or did not attempt to instruct or direct the claimant.  On the evidence, it is equally clear to me that at all times, the claimant was controlled by the prison governor, Lisa Reid and/or himself.
22. I find that the defendant did not owe the claimant duties under [the Regulations]…because they were not the claimant’s employer and because of the limitations imposed by regulation 3(3)(b) of the Regulations...”

17.	The recorder does not in terms address whether the ladder was "work equipment", but it is implicit in his approach as set out in [21] that he considered it to be so. The Respondents have filed a Respondent's notice, seeking to uphold the recorder's dismissal of the claim on the additional ground that in the circumstances of this case the ladder was not work equipment. Although I see force in the respondents' submission that a prohibited use of the ladder meant that it was outside their control for the purpose of regulation 3(3)(b)(i), I do not think it necessary to decide this issue. Even if that sub-paragraph applies in this case, it does not assist Mr Casson. The effect of regulation 3(3)(b) in applying the requirements imposed by the Regulations to "a person who has control to any extent of (i) work equipment.....and to the extent of his control" does not bring all the requirements into play but only the duty of maintenance under regulation 5: see Mason & Satelcom Ltd v East Potential Ltd [2008] EWCA Civ 494. The ladder was in good condition, and Mr Casson's injuries were not caused by the state of the ladder but by the way that he was using it.
18.	In order to engage the duties to provide information, instructions and training and to ensure that the ladder was suitable for the purpose for which it is used (regulations 8,9 and 4), the Respondents would have to be a person who had control to any extent of either "a person at work who uses or supervises or manages the use of work equipment" or "the way in which work equipment is used at work" and in either case "to the extent of such control". In the light of the finding that Mr Casson was not instructed to do any painting but did so on his own initiative and that he had not been given any permission to use the ladder, and indeed was forbidden from doing so both by the terms of his placement memorandum of understanding and by the instructions of Ms Reid, it is impossible to conclude that the Respondents fell into either of these categories. So much was realistically recognised by Mr Sigee on behalf of Mr Casson when he accepted that success on at least one of his challenges to the findings of fact was necessary if he was to succeed on this appeal.
19.	For these reasons, I would dismiss the appeal.
LORD JUSTICE SALES:
20.	I agree.
LORD JUSTICE PATTEN:
21.	I also agree.