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Led up the garden path
The route to better risk assessment for protective work equipment
12 November 2010
A recent Court of Appeal decision makes defending personal
protective equipment claims more difficult as there will now be an
assumption that if injury occurs, the equipment provided was not
suitable.
The facts
In the recent case of Threlfall v Hull City Council, Mr
Threlfall, a street scene operative, who was a member of a team
working on the gardens of unoccupied council houses for Hull City
Council, sustained a serious injury to his left hand when a sharp
object within a black plastic bag of rubbish penetrated his glove
and severed an artery and tendon. The gloves were standard issue,
provided to all street scene operatives and described by the
manufacturer as being suitable for “minimal risks only”; in
particular, they were not cut resistant.
In his claim against his employers, Mr Threlfall argued that the
gloves were unsuitable as they had not protected him from injury
and that the council had therefore been negligent or in breach of
regulation 4 of the Personal Protective Equipment Regulations
1992.
A reminder of the regulations
Regulation 4(1) requires employers to ensure suitable personal
protective equipment is provided to those employees exposed to a
risk to their health or safety while at work, unless the risk can
be controlled by other means which are equally or more
effective.
Regulation 4(3) defines what makes personal protective equipment
suitable, stating that it must:
- be appropriate for the risk(s) involved, the conditions at the
place where exposure to the risk may occur and, the period for
which it is worn
- take account of ergonomic requirements and the health of the
person(s) who may wear it
- fit the wearer correctly
- so far as is practicable, be effective to prevent or adequately
control the risk(s) without increasing the overall risk
- comply with any enactment with respect to health or safety
Regulation 6 goes on to impose an obligation on an employer to
carry out an assessment of the risks to health and safety.
The council provided gloves in an attempt to comply with
regulation 4 and had carried out a written risk assessment in
relation to strimming and garden clearance but the assessment dealt
only with the general risks of carrying out the garden work and did
not consider the risk of laceration from sharp objects or the need
for suitable protective gloves. They argued, however, that while
there was a risk of laceration, the risk was very low and the
gloves provided were adequate to meet that risk.
The trial and first appeal
The trial judge rejected Mr Threlfall’s claim, finding that he
was the author of his own misfortune for failing to look inside the
bags before lifting them. He also rejected the claim under
regulation 4 of the Personal Protective Equipment Regulations 1992
and agreed with the council in assessing the risk of injury as
being “very low indeed”. Taking into account the fact that these
gloves had been used for many years without incident, he held that
there was no duty to provide highly protective gloves.
The appeal judge upheld the decision, finding that the standard
gloves were appropriate and effective unless there was some reason
to anticipate a heightened risk. In the absence of any past history
of problems, he could not see how equipment that was appropriate
and adequately effective was not suitable, finding that the
“standard is not an absolute duty to prevent injury”.
The decision of the Court of Appeal
Lady Justice Smith considered that it was sufficient for Mr
Threlfall to show that his hand had been cut while he was doing his
job of clearing rubbish and that this occurred while he was wearing
the gloves provided.
She went on to find that the council’s risk assessment was
“manifestly defective” when compared to the requirements of
regulation 6. The assessment should have dealt specifically with
the risks of laceration and the type of gloves required in the
light of that risk.
The Court of Appeal accepted that Mr Threlfall was exposed to a
risk of laceration which could not be adequately controlled by
other means and that the council was therefore under a duty to
provide suitable protective equipment, in the form of gloves. The
suitability of any protective equipment must be judged at the time
when the equipment is provided and although regulation 6 is
important as a guide as to the steps to take in deciding whether
the proposed equipment is suitable, it does not define suitability.
For this, we must look to regulation 4(3).
The Court of Appeal considered the concept of effectiveness to
be at the heart of suitability and as such, equipment will not be
suitable unless it is effective to prevent or adequately control
the risk, so far as is practicable. In order to be effective, the
protective equipment should either prevent any injury at all, or
protect the worker from significant injury.
In cases such as this, the first question to ask is whether
regulation 4 applies at all. It was accepted that the regulation
did apply in the present case as there was a risk of injury which
could not be adequately controlled by other means. In essence, if a
residual risk exists, the regulation is engaged, unless the risk of
occurrence is so slight, or the nature of harm so trivial that it
should properly be ignored.
Once regulation 4 is engaged, the employer must next consider
the issue of suitability: to do so the Court of Appeal has stated
that the statutory scheme set out in the regulation is to be
followed. Here, the court found that the standard issue gloves were
plainly not effective to prevent or adequately control the risk of
laceration as it should have been assessed. The court maintained
that this view had not been reached with the benefit of hindsight,
but because the supplier of the gloves had described them as being
suitable for minimal risks only and the court found that the risk
of laceration was more serious than that.
Conclusion
This decision will inevitably make claims arising out of the
provision of personal protective equipment more difficult to defend
as there will be an assumption that if injury occurs the personal
protective equipment provided was not suitable. The Court of Appeal
has, however, laid down guidance as to the correct approach
employers should adopt to comply with the Personal Protective
Equipment Regulations 1992 which will hopefully lead to greater
certainty in determining future claims involving the use of
protective work equipment.
Following Threlfall, what can employers do in practical
terms in order to comply with the regulations?
- ensure staff are properly trained to carry out risk
assessments
- risk assessments need to give specific consideration to the
risks of injury employees may be exposed to and then address what
type of personal protective equipment should be provided in light
of that risk
- in considering personal protective equipment and whether it is
suitable, first consider its effectiveness to prevent the injury
identified in the assessment
- to ensure the personal protective equipment is suitable, then
consider the equipment against each sub-paragraph of regulation
4(3)
- consider modifying risk assessments for personal protective
equipment to ensure the criteria set out in regulation 4(3) are
met
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