Lady Justice Smith has worked her way through the Personal Protective Equipment at Work Regulations 1992, and has re-stated the importance of risk assessments, as in our often quoted case of Allison -v- London Underground.
The case was an appeal by the Claimant following an already unsuccessful appeal (reported in the April 2010 Law Bulletin) against a County Court judgment .
The Claimant’s job was to strim the grass at unoccupied council houses. The grass would have grown quite long and there were often black plastic bags of rubbish left by former tenants or thrown into the garden by local residents.
Workers were given litter pickers, rakes, and shovels to help move rubbish out before strimming. However, the bags could not be picked up by a litter picker and it was usual to lift them with a gloved hand.
The claimant suffered a severe cut to his hand when handling a bag in the long grass but no one ever identified what precise object caused the injury.
The gloves, which were given to all council street workers, were described by the manufacturers as being of a simple design for “minimal risk only”. They were not cut resistant. The same manufacturer did have a superior design of glove designed to protect against cuts for those who worked with knives or glass as a regular part of their work.
All parties agreed there was a risk of cuts in this work. However, the defendant said the risk was “very low indeed”. In 20 or 30 years there was no previous similar accident in this type of work.
The Defendant had actually carried out a risk assessment and concluded that, through their experience of refuse and gardens, special cut resistant gloves were not required to do garden clearance work.
The Judge, whose decision was being appealed, analysed whether non-cut resistant gloves amounted to a breach of the requirement of regulation 4(1) of the PPE Regs that every employer shall ensure that suitable PPE is provided to his employees.
He concluded that, without the benefit of hindsight, the employer was entitled to conclude that the standard gloves were effective for the risk as they perceived it.
He found this was not an exceptionally rubbish strewn garden that had been empty for years. In the absence of some reason to expect a higher risk at this garden, or any past history or problems, he concluded the gloves supplied were effective and therefore suitable. He said there was no absolute duty to prevent injury under the Regulations.
Lady Justice Smith
The Court of Appeal said the case had been analysed in the wrong way.
First, you had to show the necessity for suitable protective equipment under Reg 4 applies at all. It did, because all parties accepted there was a risk of being cut which could not be adequately controlled by any other means (such as other picking equipment). This part of the job had to be done by hand and there would always be the risk of glass, even the odd needlestick and so on which could not be removed by other means.
As long as the risk of injury is not so slight as to be “de minimis” or the nature of the harm so trivial that it should be ignored, the Regulation will apply where any risk arises from the job.
Then you have to consider whether the personal protective equipment is suitable.
What amounts to suitable , found Smith LJ, is explained in particular in Regulation 4(3)(d) as PPE that is “so far as practicable… effective to prevent or adequately control the risk involved.”
Lady Justice Smith said that adequate control of the risk meant (at least) prevention of significant injury. Effectiveness in preventing injury was the key concept in whether the equipment was suitable or not.
However, that test was not answered, and the case was not won, by saying the protective equipment was unsuitable because the Claimant had been injured. The matter had to be judged not on hindsight but on the suitability at the time the accident occurred.
The problem with the Judgment that was being appealed was that the Judge had used common law reasonableness and the lack of history of similar events to come to his conclusion that the equipment was suitable because it had been effective in the past and so it was reasonable to provide it in light of that history.
He had not done a proper objective analysis of the risk at the time of the accident.
He could have done so because within the PPE Regulations there is a checklist at Regulation 6 that spells out how to conduct such a risk assessment. The employer too could have done this at the time. Regulation 6 spells out how to carry out a risk assessment.
It requires the employer to assess the risks to health and safety which have not been avoided by other means. That starting point should have led the employer to conclude that litter pickers etc could not avoid the risk of being cut by glass when picking up bags by hand.
It then requires the employer to define the characteristics that PPE must have to be effective against those risks. It was a matter of common sense that gloves should be cut resistant to avoid the risk of injury.
The manufacturer had said the gloves provided were for minimal risks only. The Judges had looked at the gloves – ordinary gardening gloves – at court and commonsense told them they could not withstand pressure from a sharp object.
It was not disputed a superior glove would have been effective and there was no question it was practicable to obtain them at modest extra cost.
The employer’s risk assessment was “manifestly defective”. They had not dealt with the risk of laceration and the type of protective gloves required in light of that risk.
Failure to do a risk assessment under Reg 6 was not necessarily a breach of duty if, by some other route, effective equipment were provided. However, the failure to do an adequate risk assessment under Regulation 6 had led to a failure to provide effective and thus suitable equipment under Regulation 4.
Lady Justice Smith suggested that from now claimants plead Regulation 4 and Regulation 6 together: reg 6 had not even been pleaded at the first trial.
She took the opportunity to re-state the importance of risk assessments as in Allison and even as noted in the lost House of Lords PPE case of Fytche. She stressed again the contrast between using a structured risk assessment to positively seek out dangers in the job in hand with the old test of reasonable foresight. Indeed even in Fytche Lord Hoffman recognised the need to protect against secondary risks in the job and said a risk assessment was a necessary step to do so. The trial Judge should not have based his conclusions “on the result of so inadequate a risk assessment”.
There was therefore judgment for the Claimant and no contributory negligence. The fact that the Defendant had taken the point no one knew exactly how he had been cut played against them in arguing that he should have taken greater care.
The reaction from the various camps is illustrative of the whole health and safety debate.
Junior counsel, for the claimant, Matthew Stockwell, pointed out the claimant was doing a “Life of Grime” type job, and that it was cheering to see the Court of Appeal understanding the difficulties of someone doing a relatively low paid, unpleasant but socially important job and the need to assess risks and protect people from the risk of nasty injuries. He said it was cheering to watch the Judges trying on and discussing gardening gloves while talking with counsel.
Threlfall -v- Hull City Council [2010] EWCA Civ 1147, 20/10/2010.