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Blair v The Chief Constable of Sussex Police, Court of Appeal, 15 May 2012

7 June 2012
The issues

Employee training – Personal Protective Equipment at Work Regulations 1992/Regulation 4(3) – difference between effectiveness and appropriateness

The facts

The claimant, Mr Blair, was a serving police officer who on 21 May 2009 broke his ankle and his tibia while he was undertaking an advanced motorcycle course as part of his training with the Sussex police force. He was required to ride off-road on un-metalled tracks but capable of being used by cars and motorcycles. The claimant successfully negotiated his way over the first part of the track but the next part was heavily rutted, the ruts being full of water. During the second part of the track and in the course of endeavouring to change gear, the motorcycle tilted. The claimant lost control and fell with the motorcycle on top of his lower leg. At the time of the incident the claimant was wearing classic clubman boots, known as Alt-berg boots which were issued as a standard item to members of Sussex police force.

Mr Blair alleged that he had been provided with a defective and unsuitable motorcycle contrary to the Provision and Use of Work Equipment Regulations 1998 and with unsuitable boots contrary to the Personal Protective Equipment at Work Regulations 1992. Mr Blair’s claim was dismissed at trial. Dame Janet Smith refused permission to appeal on the unsuitable motorcycle claim but granted permission to appeal the judge’s decision on the boots.

The case of Threlfall v Kingston upon Hull City Council (2010) highlighted that a structured approach to the 1992 Regulations is required. It is first necessary to identify the risk of injury, and then to ask if the equipment in fact provided was, so far as was practicable, effective to prevent or adequately control the risk. It is only if the equipment was effective or it was not practicable to make it effective that there is any need to consider whether the equipment is appropriate within Regulation 4(3)(a) or take account of ergonomic requirements or the claimant’s state of health within Regulation 4(3)(b) .

Unfortunately, the judge did not adopt this structured approach. He recorded (and appeared to accept) the submissions of Ms Mortimer of the Chief Constable that the Alt-berg boots were suitable and appropriate for the risks involved because the condition on which they were being used “was neither at speed nor competitive, nor was there an extreme terrain”.

The judge was satisfied that the requirement for the regulations were met. Particularly taking into account the circumstances of the case, the extent of the risks that have been foreseen, the nature of the hazards which were known and for which protection was provided, that the requirements under the regulations were complied with and there was no justification or obligation on the employer to provide the degree of protection that was provided by motocross boots compared with those which were supplied.

The claimant appealed on the basis that the judge, although referring to Threlfall had effectively confused effectiveness and appropriateness in assessing suitability of the boots. In addition, he appealed stating that it was for the employer to discharge the burden under the regulations and that this burden had not been discharged.

The decision

It was held that the judge had not asked himself the crucial ‘effectiveness’ question posed by Regulation 4(3). It was held that there can be no doubt that the Alt-berg boots supplied to Mr Blair were not effective to ensure “the prevention of significant injury”. It was then for the defendant to plead and prove that it was not ‘practicable’ for the protective equipment to be used for the prevention of significant injury. This did not occur in the case. There was no plea of lack of practicability nor did the trial judge squarely address the issue as to whether that meant that it was impracticable to use the Alt-berg boots. Therefore, the employer had not discharged the obligation of showing that he did comply with the requirements of the regulations. It was possible (not impractical) to prevent significant injury by providing stronger boots than the Alt-berg boots.

Appeal allowed.

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