Personal Protective Equipment at Work Regulations 1992

Fytche v Wincanton Logistics Plc: CA (Lords Justice Waller, Kay, Mr Justice Lindsay): 25 June 2003

Mr Fytche was employed by the defendants as an HGV driver.

His duties included collecting milk from farms and he used to work the night shift in all kinds of weather.

He was provided with a pair of steel toe-capped safety boots to protect his feet against falling heavy objects.

On the day of the accident, he had worked for three hours in freezing conditions.

There was a very tiny hole in his boot through which water entered, causing frostbite in one of his toes.

He pursued an action against his employers for breach of regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992, which provide that: 'every employer shall ensure that any personal protective equipment provided to his employees is maintained in an efficient state, in efficient working order and in good repair'.

The question considered by the Court of Appeal was whether this regulation was limited to the risk in respect of which the protective equipment was supplied.

The employers had apparently not assessed that there was any particular risk from inclement weather conditions.

Lord Justice Waller, in a majority decision, found that the boots were not designed to protect against the risk of water coming into contact with his feet and, therefore, complied with the regulations in that the steel toe-cap protection was maintained in an efficient state.

This is a most peculiar decision.

Surely, steel toe-capped boots are simply a subset/variety of protective boots? The claimant required boots for a number of protective reasons which included falling heavy objects.

However, there was also a need to provide him with a measure of tread against slipping on ice, snow, mud, etcetera, and to prevent his feet being exposed to water, mud etcetera.

As Mr Justice Lindsay stated in the dissenting judgment, one should look to 'the whole pair of boots', and not simply to the issue of the steel toe-cap, as to whether the boot was defective or not.

The issue is of importance because regulation 7(1) gives rise to an absolute duty.

Therefore, the Court of Appeal has held that such a duty only applies to identified risks.

In the instant case, there is no indication as to whether a risk assessment had properly considered the risk created by the weather conditions the claimant was likely to have to combat, but one imagines that if the employers had given the matter any thought, they could have foreseen that working on the night shift in winter collecting milk from farms would give rise to a need for footwear to protect against the sort of risk that occurred in this case.

For future reference, it is important that both claimants and defendants look carefully to the nature of the risk assessment carried out by the defendants in respect of the provision of protective equipment, before considering what aspect of that equipment regulation 7(1) applies.

By Simon Allen, Russell Jones & Walker, Sheffield