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Taylor v Chief Constable of Hampshire, Court of Appeal, 9 May 2013

5 September 2013
The issues

Personal Protective Equipment at Work Regulation 1992 – Control of Substances Hazardous to Health Regulations 2002 – costs

The facts

The claimant, who is a police officer with the Hampshire Constabulary, was part of a number of officers who discovered a cannabis factory in a house in Southsea in September 2008. Steps were taken to dismantle the operation. The electricity was made safe and the claimant, together with other officers gathered up and disposed of the cannabis plants and equipment. A risk assessment was done beforehand and the officer who undertook the risk assessment that the only material risk was from skin being irritated whilst in contact with the plants. Accordingly the officers were told to wear latex gloves. The house was hot and poorly ventilated and PC Taylor decided to open a window. She failed to see that it was sealed and pushed at it, causing the glass to break. Her hand went through the glass and she cut her thumb. She brought a claim alleging breach of the Personal Protective Equipment at Work Regulations 1992 and in negligence, and, in addition, under the Control of Substances Hazardous to Health Regulations 2002. The judge found that there was a breach of the latter regulation but that it was not causative. He dismissed the officer’s common law claims. He found in her favour in respect of the 1992 regulations. He found that the constabulary should have provided thick gloves to protect against sharp edges and that had she been wearing them the injury would probably not have occurred. The constabulary appealed.

The decision

Were the regulations engaged?

In Threlfall v Kingston- upon-Hull City Council the Court of Appeal had said that if the residual risk existed the regulation was engaged, provided that the risk was not so slight as to be de minimus, or the nature of the harm so trivial that it should be ignored. Once a risk was more than de minimus the employer had to provide suitable equipment unless working methods could provide equal or more effective protection. The judge had found there was a risk that was more than de minimus from sharp edges. This related to cannabis factory generally, on the evidence this was clearly a finding open to the judge. The regulations were clearly engaged and there was a duty to provide equipment, in this case, thick gloves.

Was the duty to provide gloves engaged at the time of the accident? The constabulary said that the task which the claimant was carrying out at the time of the accident was the removal of plants, and there was no reason to suppose that this involved contact with sharp edges. The evidence was that the officer was one of a number of officers tasked with dismantling the factory and this could involve her carrying out the whole range of tasks involved in that activity. She might at any time have run the risk of contact with sharp objects. It would have been wholly unrealistic for the judge to seek to distinguish between those duties which placed her at risk from sharp edges and those which did not. Moreover, it would undermine the protection which the regulations were designed to provide.

No argument had been pursued in respect of remoteness of damage, nor had it been suggested that the risk involved in opening the window was not the kind of risk against which the regulations were designed to give protection. These were potentially interesting questions on which the court would say no more.

The constabulary argued that it had won on the 2002 regulations point and that the judge had been wrong to award the office all her costs. In fact, the officer won on the 2002 point but failed to establish causation. The order was within the generous ambit given to judges in relation to costs. There was no obligation in a case like this to make issue-based award of costs. The normal order that the successful party was entitled to all his costs was not likely displaced. Appeal dismissed.

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