BREACH OF STATUTORY DUTY : PERSONAL PROTECTIVE EQUIPMENT : PROTECTIVE CLOTHING : RISK ASSESSMENT : STATUTORY INTERPRETATION : SUITABILITY : WASTE DISPOSAL : CORRECT APPROACH TO ASSESSING “SUITABILITY” OF PERSONAL PROTECTIVE EQUIPMENT WITHIN MEANING OF REG.4 PERSONAL PROTECTIVE EQUIPMENT AT WORK REGULATIONS 1992 : RELATIONSHIP BETWEEN REG.4 AND REG.6 PERSONAL PROTECTIVE EQUIPMENT AT WORK REGULATIONS 1992 : reg.4 PERSONAL PROTECTIVE EQUIPMENT AT WORK REGULATIONS 1992 : reg.6 PERSONAL PROTECTIVE EQUIPMENT AT WORK REGULATIONS 1992 : reg.4(3)(d) PERSONAL PROTECTIVE EQUIPMENT AT WORK REGULATIONS 1992 : reg.4(3)(a) PERSONAL PROTECTIVE EQUIPMENT AT WORK REGULATIONS 1992
The court gave guidance about the correct approach to the Personal Protective Equipment at Work Regulations 1992 reg.4 and reg.6 with particular emphasis on how to determine whether personal protective equipment was “suitable”.
The appellant local authority employee (T) appealed against the dismissal of his appeal against a decision that he had failed to establish a breach of the Personal Protective Equipment at Work Regulations 1992 reg.4 by the respondent local authority. T, a street scene operative, had suffered a serious cut to his finger whilst working with a team who were maintaining the gardens of unoccupied council houses and removing rubbish and debris left there by tenants. The accident occurred whilst he was handling a bin bag full of rubbish, wearing the standard issue cloth and suede gloves provided by his employer. T did not know what object had caused the cut, only that it was something in the bag. His case was that he ought to have been provided with better quality gloves. In ensuing county court proceedings, the judge held that although there was a foreseeable risk that sharp objects would be encountered while clearing gardens, the risk of injury was “very low indeed” and there was no duty on the local authority to provide highly protective gloves. On appeal, upholding the decision of the trial judge, it was held that as it was unclear how the accident had happened and as risk assessments had not found the standard-issue gloves to be unsuitable, the local authority was entitled to conclude that they met the requirements of reg.4. T submitted that (1) the local authority’s risk assessment had been inadequate because it dealt only with the general risks of garden clearance and had not attempted to assess the risk of laceration; (2) the courts had applied a common law test of reasonableness instead of properly applying the words of reg.4 and recognising that the duty imposed by it was high. The local authority argued that T’s submissions verged on imposing absolute liability.
HELD: (1) The risk assessment performed by the local authority had been manifestly defective when compared to the requirements of reg.6. It should have specifically dealt with the risk of laceration and the type of protective gloves required in the light of that risk (see paras 23 and 36 of judgment). The judge’s approach to suitability had been in accordance with reg.4; neither judge had referred to reg.6. Regulation 4 and reg.6 should be both pleaded and considered together. Even if reg.6 was not pleaded, the court should not ignore it (para.9). (2) Ordinarily a judge’s first task was to decide whether reg.4 applied at all; it applied wherever a residual risk of harm existed provided that it was not de minimis or so trivial that it should be ignored (para.44). In the instant case it was necessary to start from the accepted position that T had been exposed to a risk of laceration that could not be adequately controlled by other means and that the local authority was duty-bound to provide suitable protective equipment (para.38). Although reg.4(3)(a) dealt with appropriateness, the most obvious starting point was to consider reg.4(3)(d) since effectiveness was at the heart of suitability; considerations of appropriateness were only likely to arise when there had been a failure to provide an identified effective form of protection which an employer claimed would not have been suitable because, although effective, it was inappropriate (para.48). The first question for a court was whether the equipment prevented or adequately controlled the identified risk of injury. Only if that question was answered in the affirmative would there be any need to consider the other paragraphs of reg.4(3). If the question was answered in the negative, the equipment would be unsuitable to matter how “appropriate” it might be (para.40-41). The words “adequately control the risk” in reg.4(3)(d) meant that the equipment should prevent a significant injury (para.42). The suitability of any protective equipment had to be judged at the time when the equipment was provided rather than with the benefit of hindsight. Although reg.6 might be helpful to a judge, it did not define suitability (para.39). In the instant case the gloves had not been effective because the manufacturer’s description stated that they were suitable only for minimal risks and the risk of laceration to employees doing T’s job was more serious than that (para.46). It was clear from a physical examination of the gloves that they were not capable of withstanding pressure from a sharp object. The gloves were therefore unsuitable and their provision amounted to a breach of reg.4.
Appeal allowed
STEVEN THRELFALL v HULL CITY COUNCIL (2010)
Lawtel: 25.10.10
