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Fytche v Wincanton Logistics Plc, House of Lords, 1 July 2004

20 July 2004
The issues

Personal Protective Equipment At Work Regulations 1992 – Boots – Whether Maintained In Efficient Working Order And In Good Repair

The facts

The Claimant was a Heavy Goods Vehicle driver who collected milk from farms at night. He was provided with steel-cap safety boots. There was a small hole in his right boot where the steel-cap met the sole. He suffered frostbite one night in the little toe of his right foot. He claimed from his employer, alleging amongst other things, that the employer was in breach of Regulation 7(i) of the 1992 Regulations, which imposed an absolute duty on the employer to keep personal protective equipment in efficient working order and good repair. The Recorder dismissed the claim. The Judge to whom the Claimant appealed also dismissed the claim. The Claimant appealed to the Court of Appeal which dismissed the appeal. The Claimant appealed.

The decision

The Decision (By A Majority Of 3-2 Baroness Hale And Lord Hope Dissenting)

1. Regulation 2(1) of the Personal Protective Equipment Regulations define all equipment as PPE if it is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety. The idea of a risk against which the wearer is protected is built into the concept of PPE.

2. Regulation 4 imposes an obligation to supply employees who may be exposed to a risk to their health and safety whilst at work with suitable PPE. The tests of suitability which follow are related to the basic function of PPE which is protection against risk.

3. Mr Fytche was provided with steel toe caps on his boots because his employers considered there was a sufficient risk of heavy things falling on his feet. The boots were therefore PPE and there was nothing to suggest that they failed any of the tests of suitability. They fitted and were appropriate for conditions in milk parlours and so on. The hole in one of the boots did not create a secondary risk or increase overall risk. The secondary or overall risk must be a risk in the course of employment. Mr Fytche was not expected to do anything requiring him to have waterproof boots and therefore the hole created no such risk. If there had been a weather risk against which the boot should have protected him then he would have been able to recover but the Claimant did not suggest that he should have been given PPE to protect him against the weather.

4. On the assumption that the hole was present when Mr Fytche was issued with his boots there was therefore no breach of Regulation 4.

5. Was there a breach of Regulation 7? Regulation 7 provided that every employer should ensure that any personal protective equipment provided is maintained in a efficient state, in efficient working order and in good repair. The Claimant argued that the boot which had developed a hole was not in good repair and that therefore there was a breach.

6 However “efficient state, in efficient working order and in good repair” is not an absolute concept and has to be construed in relation to what makes the equipment PPE. An employer does not have a duty to do repairs and maintenance which have nothing to do with the function of the equipment as personal protective equipment. (Lord Hoffman, Lords Walker and Nicholls agreeing).

7. Baroness Hale and Lord Hope dissented. Baroness Hale commented that a boot with a hole in it was not in good repair and was defective and that on the face of it Regulation 7 had been broken. Personal protective equipment was the entire boot and not merely the metal toe cap. The argument that the employers liability was limited to the risks which he had assessed struck her as unimpressive on the basis that it would put an employer who had identified the wrong risks in a better position than an employer who had identified the right risks.

Appeal dismissed.

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