England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
Mr Recorder Berkley QC)

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

1. LORD JUSTICE LATHAM:On 8th June 2001 Mr Recorder Berkley QC gave judgment for the applicant for damages which he had sustained during the course of his employment, but he concluded that the applicant was 75 per cent to blame for the injury that he received. On his behalf it is submitted that the Recorder was plainly wrong in that assessment, bearing in mind the facts, and that, reluctant though this court is to interfere with conclusions of judges of first instance on issues such as contributory negligence, this indeed is one of those cases which the court could properly consider.
2. The facts were that the applicant had been employed by Bolton Metropolitan Borough Council for over ten years as a porter/supervisor at the Town Hall. The Town Hall building includes the Bolton Magistrates' Court, and that obviously also includes a number of public lavatories. The cleaner who was cleaning the lavatories on the evening of 3rd November 1998 saw two to three syringe needles inside a plastic toilet brush holder. He went to the applicant and told him what he had seen. The applicant put on a pair of rubber surgical gloves, took a pair of scissors and went to inspect. He found what he thought was a single needle in the brush holder and he put his hand into the container in order to retrieve it. In doing so, he sustained a "needlestick" injury to his right index finger by coming into direct contact with another needle in the container which he had not seen.
3. His claim for damages was based upon breaches of various regulations by his employers and a breach of their common law duty of care to him as an employee. The basis of his allegations of breaches of those duties is that the employers failed in two significant respects to take proper care for his safety. The first respect was that they failed adequately to train, instruct or warn him as to how to deal with needles (commonly known as "sharps") in situations such as this. Secondly, they failed to provide him with appropriate protective equipment to ensure that, if he had to deal with sharps, he could do so safely.
4. As far as the first allegation is concerned, his case was that he had received no (or certainly no specific) instructions as to how to cope with sharps, nor had he been given any course in which he was shown how to handle them. As far as warnings were concerned, the only current warning in relation to how the matter should be dealt with was contained in a document of 6th September 1995 (that is three years before the accident) which is headed "Supervisors Note of Action - Syringes in the Toilets Admin Buildings". In the body of that note there is a series of instructions as follows:

"1.Obtain a pair of heavy duty protective gloves from the supervisor's office.

2.Obtain the Litter Picker from the supervisor's office.

3.Obtain the Sharps Container from the security office.

4.On no account should the syringe be touched without adopting the above precautions."

5. There was no evidence to suggest that that particular note had been the subject matter of any reminders in the three years between its promulgation and the accident itself.
6. The instruction, it will be noted, starts with the requirement that staff should obtain a pair of heavy duty protective gloves from the supervisor's office. It is clear from the findings of the Recorder that he concluded that the only gloves which could possibly have been described as heavy duty gloves, namely some Kevlar gloves (which were available, but which were not used by the applicant), would not have been satisfactory to protect the applicant from needle injury. There were, as I read the Recorder's findings, available on the market gloves which could provide that protection.
7. The Recorder came to the conclusion, which was inevitable on the evidence, that the employers were in breach both of their statutory duties and their duty of care to the applicant as an employee. However, he concluded that the applicant had essentially been the author of his own misfortune by failing to use the Kevlar gloves (which he himself described as effectively inadequate) and putting his hand into the container in circumstances which exposed him to the risk of injury. He concluded that the applicant could have waited until the next morning; he could have waited until there were others there and then taken further instructions as to how to deal with those needles. It was in those circumstances that he concluded that the applicant was 75 per cent to blame.
8. It seems to me that there is a real prospect of this court being persuaded that the Recorder was wrong. The employers were in clear breach of their duties, as found by the judge, and the consequence was that the applicant was exposed to the risk of injury, in particular by not having the appropriate protective equipment provided for him. Secondly, it seems to me that it is arguable that the instructions were so inadequate that it was unlikely that he would, or could, have been expected to remember precisely what it was that he had to do in those circumstances.
9. Where precautions which are considered to be appropriate have not been taken by employers and this leads directly to injury of the type foreseen, it seems to me that it will be only in a rare case that the employee is likely to be found more to blame than the employer. It seems to me that Mr McCluggage is entitled to argue that this is not one of those rare cases.
Order: application for permission to appeal granted (short warned list, two-member court, time estimate half a day); permission to amend wording of notice of appeal granted (amended draft to be provided to court within 7 days); costs reserved.