ON APPEAL FROM LEEDS COUNTY COURT
MR JUSTICE BLAKE
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
HH JUDGE JACK
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE JACKSON
| Steven Threlfall
|- and -
|Hull City Council
Stuart C Brown QC and Corin Furness (instructed by Plexus Law) for the Respondent
Hearing date : 6 October 2010
Crown Copyright ©
Lady Justice Smith:
The judgment of HH Judge Jack
(1) … 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 such are equally or more effective.
(3) Without prejudice to the generality of paragraph (1) … 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;
(b) it takes account of ergonomic requirements and the state of health of the person or persons who may wear it, and of the characteristics of the workstation of each such person;
(c) it is capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed;
(d) so far as practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;
(e) it complies with (any relevant health and safety legislation).
(1) Before choosing any personal protective equipment 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 personal protective equipment he intends will be provided is suitable.
(2) The assessment required by paragraph (1) shall include –
(a) an assessment of any risk or risks to health or safety which have not been avoided by other means;
(b) the definition of the characteristics which personal protective equipment must have in order to be effective against the risks referred to in sub-paragraph (a) of this paragraph, taking into account any risks which the equipment itself may create;
(c) comparison of the characteristics of the personal protective equipment available with the characteristics referred to in sub-paragraph (b) of this paragraph;
(d) an assessment as to whether the personal protective equipment is compatible with other personal protective equipment which is in use and which an employee would be required to wear simultaneously.
The first appeal
"23. In my judgment, the trial judge was right to conclude that the claimant had failed to establish that his injury was caused by the breach of the regulation because at the end of the trial:
(1) it remained unclear how his finger came to be cut, and
(2) apart from the fact that the injury occurred, there was no evidence to suggest a risk assessment revealed that the gloves were unsuitable.
24. The evidence indicated that the employer had conducted a risk assessment as the policy and purpose of the Framework Directive required it to do. That assessment and the substantial experience of refuse and garden clearing that the employer and work force had, did not suggest that the risk of encountering unseen sharp objects was such that special cut-resistant gloves were required to be issued to do the job.
25. For equipment to be suitable, it must at least be appropriate for the risk and as far as practicable effective to prevent or adequately control the risk. Without the benefit of hindsight, the employer was entitled to conclude that the standard gloves alongside the other equipment and training provided were appropriate and effective. The fact that the written risk assessment produced was in the context of strimming work including garden clearance did not limit the nature and effect of the oral evidence accepted by the judge. This was not an exceptionally rubbish-strewn garden that not been visited for years. The claimant indicated that it was not as bad as some and the defendant stated that the gardens were cleared every six weeks or so.
26. I accept that the minimum requirements under Regulation 4(3) are without prejudice to the general requirement of suitability in regulation 4(1), but in the absence of some reason to anticipate a heightened risk at the site in question and any past history or problems, I cannot see how equipment that is appropriate and adequately effective is not suitable. The standard is not an absolute duty to prevent injury."
The appeal to this court
"stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with the benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety?"
The factors to which Waller LJ referred included consideration of the degree of risk, the nature and seriousness of the risk if it materialised, the extent to which the risk was obvious and therefore avoidable with reasonable care and also any past history of accidents. I do not think that he intended the list to be exhaustive.
The cross appeal
Lord Justice Jackson
Lord Justice Ward