I have previously written that ‘suitability’ under the Personal Protective Equipment Regulations 1992 is a question of fact, but in terms of these regulations and their application in the context of health and safety, it must be interpreted in the widest sense. One has to look at the risk of injury, and the PPE must be suitable to prevent injury from such risk. Evaluating the risk is, therefore, critical to ensure the adequacy of the PPE.
It is pleasing to note that the Court of Appeal in Threlfall v Hull City Council  EWCA Civ 1147 enforces this view. Lady Justice Smith, in giving the lead judgment in a unanimous decision in favour of the appellant claimant, stated that in assessing PPE the court should adopt the following approach:In the present case, the claimant was a street scene operative who suffered a serious cut to his hand while clearing debris from the garden of a council property. Residents apparently used to throw black bags full of rubbish onto their gardens and it was the task of Mr Threlfall and his colleagues to clear away the rubbish. They were provided with litter-pickers, rakes and shovels, and general-purpose gloves.
- First consider whether regulation 4 applies at all. If there is a risk of injury, then it does;
- Ask if the risk of injury can be avoided by other means, eg equipment. If the answer is no, then the employer is under a duty to provide ‘suitable’ PPE pursuant to regulation 4(1);
- Then look to regulation 6 to decide what kind of equipment is needed to prevent the risk of injury. As her Ladyship stated: ‘Effectiveness is at the heart of suitability.’
It was the claimant’s case that the gloves were unsuitable for the task that he was set, in that when picking up one of the black bags which he gripped strongly in order to lift, something sharp within the bag pierced the glove and cut a tendon to one of his fingers. The manufacturer of the gloves did not identify them as ‘cut resistant’.
Regulation 4(1) of the PPE 1992 states: ‘… every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.’
Regulation 6(1) states: ‘Before choosing any PPE, which by virtue of regulation 4 he is required to ensure is provided, an employer … shall ensure that an assessment is made to determine whether the PPE he intends will be provided is suitable.’
It is important to note that regulations 4 and 6 are linked. They should both be used to guide an employer in the provision of suitable PPE.
It was accepted by both parties that the clearance of rubbish from the gardens gave rise to a risk of injury by laceration. The defendant case was that that risk was ‘very low indeed’. The gloves had been used for many years without any problem and there had been no complaint made about them at health and safety meetings attended by the union. However, it was accepted that the claimant could not pick up a rubbish bag with one of the pieces of equipment provided by the employer, nor was he expected to try to look inside the bag to try to assess what was in it.
Her Ladyship described the risk assessment as ‘manifestly defective’. Regulation 6 clearly outlines, by way of a form of checklist, the risks which ought to be considered ahead of the provision of PPE. Her Ladyship said ‘the modern requirement is that he (the employer) should take positive thought for the risks arising from his operations’. If the risk assessment that was carried out had been done properly, then the employer would have recognised the specific risk from cut injuries and could then have considered the suitability of the gloves provided.
While the suitability of any PPE must be judged at the time the equipment is provided, the first question that should be asked, according to her Ladyship, is ‘does this proposed item of protective equipment prevent or adequately control the identified risk of injury?’. In the present case it clearly did not. She continued to say that the objective of effectiveness must be to ensure that when an adverse event occurs the protective equipment either prevents any injury at all or so protects the worker that he does not suffer significant injury.
The standard issue gloves that were provided to Mr Threlfall did not effectively prevent or adequately control the risk. They were not effective. The gloves were of the type used in general gardening and were not designed to prevent laceration. Practicability was not a defence as the same manufacturer could have provided suitable gloves.
ConclusionIn Fytche v Wincanton Logistics, the House of Lords found in favour of an employer because the defective boot which let water in and caused frostbite to the claimant’s foot was not unsuitable for the risks that had been assessed on the employer’s risk assessment; namely the dropping of a heavy item onto the foot. Effectively, the House of Lords allowed the employer to identify the risks and then provide equipment to deal with those risks. The failure to identify what in the Fytche case was, frankly, quite a foreseeable risk did not harm the employer.
In this instance, however, the Court of Appeal, quite rightly, suggests that the general risk assessment carried out in the present case was inadequate and, by implication, it is not left to the employer to identify the risks that he needs to prevent. This is a much more understandable view of risk assessment within the context of the PPE Regulations.
Once more the value of risk assessment within the terms of the 1992 regulations is underlined by her Ladyship and we must remember in looking at suitability that the first question that we should ask in every case is ‘does this proposed item of protective equipment prevent or adequately control the identified risk of injury’. We must then look to regulation 6 to follow the check list through in relation to how we should assess the risks before defining the suitability of the equipment. This is a valuable judgment.
One further observation. It is worth noting that Lord Justice Jackson sat on this case. It is the first personal injury case, to the writer’s knowledge, in which his Lordship has been involved as a judge in the Court of Appeal. As with many cases which reach the higher courts, the facts are relatively simple. This is a fast-track case and his Lordship may have been surprised to find that the complexity argued by two leading personal injury silks necessitated a judgment of 12 pages from Lady Justice Smith in assessing whether a pair of gloves was suitable for the task in hand.
Simon Allen is joint head of the national personal injury department of Russell Jones & Walker and managing partner of the Sheffield office