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Threlfall v Hull City Council, Court of Appeal, 20 October 2010

1 November 2010
The issues

Gloves – Personal Protective Equipment At Work Regulations 1992 – employer liability.

The facts

The Claimant was a street scene operative employed by Hull City Council. On the 8th May 2006 he was clearing debris from the garden of a council property when he seriously cut his left hand. He alleged that the Council was at fault for failing to provide him with suitable protective gloves, contrary to Regulation 4 of the Personal Protective Equipment At Work Regulations.

The council house was one of a number which were unoccupied and the gardens of which were being maintained by the Claimant and the team of which he was a member. They had to strim the grass, but before doing that they had to remove rubbish and debris. The men were provided with litter pickers, rakes and shovels. There were often black plastic bags of rubbish left by former tenants or thrown into the garden by local residents and these had to be lifted by hand. Whilst handling one such bag, the Claimant suffered the injury to his left hand. He was wearing gloves, which were standard issue and were described by the manufacturer as being of a simple design for “minimal risks only”. They were made partly of cloth and partly of leather. They were not “cut resistant”. The Judge rejected the claim on the basis that the Claimant was the author of his own misfortune. The Judge found that the Claimant had been told to open bags before lifting them and he had not done so. On Appeal to the High Court Judge, Blake J, the Judge dealt robustly with the first basis on which the Judge below had found against the Claimant. It had never been suggested to the Claimant that he should have looked inside the bag before trying to pick it up. However, the High Court Judge found that the Trial Judge was right to conclude the Claimant had failed to establish that his injury was caused by the breach of the Regulations because it remained unclear how his finger came to be cut and apart from the fact that the injury occurred, there was no evidence to suggest a risk assessment revealed that the gloves were unsuitable.

The Claimant Appealed to the Court of Appeal.

The decision

A prudent employer would conduct a risk assessment in connection with his operations so that he could take suitable precautions to avoid injury to his employees. Such a requirement, whether a statutory one or not, had to a large extent taken the place of the old common law requirement that an employer had to consider and take action against those risks which could reasonably be foreseen. Here, such an assessment had been carried out, but it had not recognised that there was a risk that employees might suffer a laceration of the hand as the result of contact with some sharp object which might be hidden from view. If the general risk assessment had been properly carried out the employer would have recognised the specific risk and the need to consider the suitability of protective gloves. In doing so, the employer would have received guidance from Regulation 4(3) and Regulation 6 of the Personal Protective Equipment At Work Regulations 1992.

The suitability of protective equipment had to be judged at the time when the equipment was provided. Regulation 4(3) provide that protective equipment would not be suitable unless all the subsequent requirements were met. The most obvious starting point thereafter would be to consider the effectiveness of the equipment as at subparagraph (d) (“personal protective equipment shall not be suitable unless…so far as practicable it is effective to prevent or adequately control the risk or risks involved without increasing overall risk”). Here there was no issue as to practicability or as to any increase in overall risk.

At the heart of suitability lay effectiveness. The first question under suitability should be “does this proposed item of protective equipment prevent or adequately control the identified risk of injury?” Only when that question had been answered in the affirmative was there any need to consider the other subparagraphs of Regulation 4(3). If that question could not be answered affirmatively, the equipment was unsuitable.

The subparagraph referred to preventing or controlling the risk. Prevention meant stopping the injury from happening at all. Controlling meant reducing the harmful effect of the adverse event when it happened. Adequate control of risk could be equated with the prevention of significant injury. Here, the standard issue gloves were plainly not effective to prevent or adequately control the risk of laceration as it should have been assessed. This was not said with the benefit of hindsight because the description attached to the gloves by the supplier was that they were suitable for minimal risks only and the risk of laceration for these men was more serious than that. There was therefore no need for the Court to consider what was meant by “appropriate” in subparagraph (a) of Regulation 4(3) (“personal protective equipment shall not be suitable unless a) it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur and the period for which it is worn”). It was not the case that the gloves were not appropriate because they were not cut resistant. That confused appropriateness with effectiveness. Effectiveness was dealt with at (d) and appropriateness was something different – it was probably intended to import a concept of proportionality. It may be that considering appropriateness would entail assessment of the extent of the risk envisaged and the gravity of the consequences if the risk materialised.

Appeal allowed. Cross-Appeal as to contributory negligence dismissed. There was no evidence to support any holding that the Claimant failed to take reasonable care for his own safety.

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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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