The claimant was a bin man for Nottingham City Council. He was with a team that collected “side waste”, namely black bags, not contained within wheelie bins, as long as they were correctly presented and not ripped. He was instructed to pick up such bags with the so-called “rabbit ears” or ties and hold the bag away from his body.
Nevertheless, as he did this one day, he suffered a suspected needlestick injury in the underside of this wrist. He suffered a psychiatric injury while awaiting an all clear, which arrived after three and a half months.
The claimant had been provided with an Arco glove that was “short” in that it did not cover the wrist area. There was a gap between the glove and his overall. He argued a breach of Regulation 4 (1) of the Personal Protective Equipment at Work Regulations 1992, namely:
- that the gloves were not suitable and should have been longer to protect the exposed area.
- that the defendant operated an unsafe system of work in requiring the claimant to collect side waste not contained within wheelie bins. He cited the practices of Mansfield DC and other councils in issuing specific instructions to householders that no side waste would be collected and if side waste were left out fixed penalties may be applied.
Defence
The defendant argued:
- that the gloves were suitable and that thicker gloves would affect dexterity and be unworkable.
- that, while there had been previous instances of needle-stick injuries by refuse collectors, these occurred sporadically and if there was a risk this was negligible.
- that collecting side waste was not an unreasonable burden to be imposed on its employees.
And, as above - that the injury was trivial and not actionable in line with Rothwell
Judgment
PPE: the court found as a fact that the defendant had not considered a gauntlet style glove or longer glove (copious reference was made to the Arco glove handbook). These would not affect dexterity and were available. This would have reduced the risk in this case and the thickness of them was not the issue.
Negligible risk?
The defendant had identified needle-stick as a high risk in an assessment pre-accident and this should have been under continuing review. There was no documentation to suggest it had been and evidence had been taken from a refuse manager on the point. There was breach of Regulation 4 PPE Regs. Leave to appeal on this point was later refused.
The court was not prepared to attack the council policy of collecting side waste. The Judge stated that this would be too onerous on the council and interfere with its statutory function. The Judge did comment that the containment of rubbish within wheelie bins would “immensely reduce” the risk of such accidents and they had enforcement procedures available to them which other councils use but would not go beyond this.
The Rothwell case was considered at length, the defendant asserting that the injury was trivial, psychiatric injury not reasonably foreseeable and therefore no cause of action. The claimant argued that there was traumatic injury (the needlestick) that had drawn blood and caused pain. This was followed by a series of blood tests.
The court considered that this was a “more than negligible” injury as considered by Lords Hope, Scott and Hoffman in Rothwell and that there was an action for damages. It indicated that it was not sure whether it agreed with the argument that the further tests, injections etc should be taken into account in arriving at this conclusion.
He was satisfied that the injury was not trivial and psychiatric consequences therefore followed and would attract compensation.
The defendant was later asked if they wished to appeal this point and they said no.
The Judge said, even if he were wrong on this, the claimant would be entitled to damages in contract.
The claimant was awarded only £600 in damages. The case was fast tracked. The sting in the tail is that the court only awarded Small Claims Costs, despite the arguments raised and the matter taking two days to conclude.
Derby County Court, 24 October 2008, HHJ Witham.