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Led up the garden path

12 November 2010
The route to better risk assessment for protective work equipment

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 Threlfalls 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 councils 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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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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