England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HIS HONOUR JUDGE BARRATT QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/05/2012

Lord Justice Longmore:

1. Mr Robert Blair, the claimant and appellant, is a serving police officer. On 21^st May 2009 he broke his ankle and his tibia while he was undertaking an advanced motorcycle course as part of his training with the Sussex police force. He and two other trainees were required to ride off-road on what have been called green lanes which are unmetalled tracks but capable of being used by cars and motorcycles. The first part of the track was successfully negotiated but the next part was heavily rutted, the ruts being full of water. While negotiating this part of the track and in the course of endeavouring to change gear (it seems unsuccessfully), the motorcycle tilted. Mr Blair lost control and fell over with the motorcycle on top of his lower leg which sustained the injury. He was at the time wearing classic clubman tourer boots, known as Alt-berg boots ("the boots") which were issued as a standard item to members of the Sussex police force. The injuries have resulted in a claim in an agreed sum of about £10,000.
2. Mr Blair alleged at trial that he had been provided with a defective and unsuitable motorcycle contrary to the Provision and Use of Work Equipment Regulations 1998 and with unsuitable boots contrary to the Personal Protective Equipment at Work Regulations 1992 ("the 1992 Regulations"). The judge dismissed all these claims. There was no attempt to appeal the finding on the suitability of the motorcycle and the boots. Dame Janet Smith refused permission to appeal the unsuitable motorcycle claim but granted permission to appeal the judge's decision on the boots.
3. The judge dismissed the claim in respect of the boots because he held that the Alt-berg boots were suitable and appropriate in the circumstances. Mr Blair said that other boots (known as motocross boots) could and should have been provided but the judge said that those boots were appropriate for competitive riding at speed on extreme terrain and that normal mobility would be hindered by wearing boots of that kind. He also held that even motocross boots would not have prevented the accident and that Mr Blair would have suffered damage even if he had been wearing such boots.
4. Regulation 4 of the 1992 Regulations (SI 1992 No. 2966 as amended by SI 1999 No. 860 and SI 2002 No. 2174) provides as follows:-

"4. Provision of personal protective equipment

(1) Subject to paragraph (1A), 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.

(1A) Where the characteristics of any policing activity are such that compliance by the relevant officer with the requirement in paragraph (1) would lead to an inevitable conflict with the exercise of police powers or performance of police duties, that requirement shall be complied with so far as is reasonably practicable.

(2) Every self-employed person shall ensure that he is provided with suitable personal protective equipment where he may be exposed to a risk to his 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.

(3) Without prejudice to the generality of paragraphs (1) and (2), personal protective equipment shall not be suitable unless-

(a) it is appropriate for the 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 is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;

(e) it complies with any enactment (whether in an Act or instrument) which implements in Great Britain any provision on design or manufacture with respect to health or safety in any relevant Community directive listed in Schedule 1 which is applicable to that item of personal protective equipment…."

Regulation 6 then provides for an employer to ensure that an assessment is made to determine whether the personal protective equipment he intends will be provided is, in fact, suitable.

5. This court has considered the impact of the 1992 Regulations in Threlfall v Kingston-upon-Hull City Council [2011] ICR 209, a case in which the claimant (a debris clearing operative) was provided by his employer with standard issue gloves rather than highly protective gloves and sustained a serious cut to his hand while handling a black plastic bag of rubbish. Smith LJ with whom Ward and Jackson LJJ agreed, said this:-

"40. The opening words of regulation 4(3) provide that protective equipment will not be suitable unless all the subsequent requirements are met. Although the first of these requirements deals with appropriateness, it seems to me that the most obvious starting point would be to consider the effectiveness of the equipment which appears at sub-paragraph (d). Equipment will not be suitable unless, so far as practicable, it is effective to prevent or adequately control the risk without increasing the overall risk …

41. It seems to me that effectiveness is at the heart of suitability. Logically, in my view, the first question under suitability should be: "Does this proposed item of protective equipment prevent or adequately control the identified risk of injury?" Only when that question has been answered in the affirmative is there any need to consider whether the provision of the equipment is appropriate or ergonomically acceptable and compatible with the workplace and so on as required by the other sub-paragraphs of regulation 4(3). If that question cannot be answered affirmatively, the equipment is unsuitable no matter how "appropriate" it might be.

42. The concept of preventing a risk is easy to understand. The precaution stops the injury from happening at all. Controlling a risk is a less certain concept. A risk can be controlled either by reducing the likelihood of an adverse event happening or by reducing the harmful effect of the adverse event when it happens. The provision of protective equipment cannot effect the frequency with which an adverse incident occurs. It seems to me therefore that, in the context of providing protective equipment, the legislature must have intended the second meaning to apply in sub-paragraph (d). 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. Thus, I would equate "adequate control of risk" with the prevention of significant injury."

6. Thus a structured approach to the 1992 Regulations is required. It is first necessary to identify the risk of injury, and then to ask if the equipment in fact provided was, so far as practicable, effective to prevent or adequately control that risk. It is only if the equipment was effective or it was not practicable to make it effective that there is any need to consider whether the equipment is appropriate within Regulation 4(3)(a) or take account of ergonomic requirements or the claimant's state of health within Regulation 4(3)(b).
7. Unfortunately the judge did not adopt this structured approach. He recorded (and appeared to accept) the submissions of Ms Mortimer for the Chief Constable that the Alt-berg boots were suitable and appropriate for the risks involved because the condition in which they were being used

"was neither at speed nor competitive, nor was there an extreme terrain … [and] … mobility would have been greatly hindered by anybody wearing motocross boots in comparison."

This was primarily a reference to the written evidence of Police Constable Craker who explained that "motocross" was a sport in which he had been involved for 41 years and continued

"Motocross is a competitive sport, rider against rider, and held on a circuit incorporating extreme terrain, undulations, jumps and natural hazards. Speed is a major factor … Motocross boots come in a variety of designs by different manufacturers, armoured to differing degrees but designed to give some protection with metal plates on the sole and to the shin and lower leg to give some protection from shrubbery, tree roots and boughs if struck at speed or in the event of coming off the bike at speed. I would liken the boot to ski boots in that they give lateral support but there is still a need for the foot to flexible to be able to change gear or apply the rear brake. The problems associated with armoured boots of this type is that it can seriously effect the act of walking, walking not being necessary in Motocross except in mounting or re-mounting the machine. Whilst armour does give some protection it does tend to defer the forces to other parts of the body and injury can still occur."

8. In then coming to his conclusion the judge said simply this:-

"I am satisfied on the facts of this case that the requirements of the Regulations are made out. Taking the particular circumstances of this case, the extent of the risks that could be foreseen, the nature of the hazards which were known and for which protection was provided, that the requirements of the Regulations were complied with and there was no justification or obligation on the employer to provide the degree of protection that was provided by motocross boots compared with those which were supplied"

9. Mr Roy for Mr Blair submits that the judge, although referred to Threlfall, has effectively fallen into the same error as did the judge in that earlier case, namely confusing effectiveness and appropriateness in assessing suitability. He identified the risk as the risk of injury in riding motorcycles and falling off during off-road training. He then said that the Alt-berg boots were not effective in preventing or adequately controlling that risk and that there was never any question raised that it was not practicable for stronger boots to be provided. In those circumstances liability under the 1992 Regulations was established, subject to causation. He also reminded the court (as the judge accepted) that the burden of showing that the Regulations were complied with was on the employer and he said that that burden had not been discharged.
10. As to causation Mr Roy submitted that on any view since the motocross boot was, as PC Craker said, designed to protect to the shin and lower leg, it was likely that Mr Blair would either have suffered no injury or, at any rate, less of an injury. He also relied on the written evidence of an expert consultant orthopaedic surgeon, Mr Yousaf Chugtai:-

"The Motocross boots … [do] provide enhanced protection to side to side tilting thus resisting collateral tilting in response to stressful bending force. On the balance of probabilities such boots were likely to minimize the degree of the injury, though still may not have prevented the damage completely"

The judge interpreted this evidence as establishing that the damage to Mr Blair's leg would have occurred anyway and Motocross boots would not have prevented the accident. Mr Roy said that was a misreading of Mr Chugtai's evidence.

11. Ms Mortimer submitted that, although the judge had not in terms carried out the structured analysis required by Threlfall, he had effectively concluded that it was not practicable to supply trainees with motocross boots because anything stronger than the Alt-berg boots were difficult to walk in and a trainee was required to walk in his boots (as well as ride in them) unlike a motocross competitor who would be wearing his boots all the time. She also asked rhetorically what the point of a trainee wearing motocross boots would be, when he would not, as a result of the mobility difficulties, be likely to be wearing them when on active service. In these circumstances suitable protective equipment had been provided. She also supported the judge's conclusion on causation.
12. I have some sympathy for the judge because much the major part of the 2 day trial concentrated on the alleged inadequacies of the motorcycle which he rejected. This court has had the luxury, if such it be, of concentrating solely on the boots issue and I fear I have to conclude the judge has not asked himself the crucial "effectiveness" question posed by Regulation 4(3). There can, in fact, be no doubt that the Alt-berg boots supplied to Mr Blair were not effective to ensure "the prevention of significant injury" to use Smith LJ's phrase in paragraph 42 of the judgment.
13. It was then for the Chief Constable, if he wished, to plead and prove that it was not "practicable" for the protective equipment to be used for the prevention of significant injury. That just did not occur in this case. I am unpersuaded that the issue of practicability was ever sufficiently in the arena at trial, since there was no plea of lack of practicality and, although the difficulty of walking in motocross boots was mentioned in the evidence and referred to by the judge, he did not squarely address the issue whether that meant that it was impracticable to use the Alt-berg boots. If the issue had been squarely addressed there might have been evidence about the likelihood or necessity of walking around during the training session which, on the face of it, was confined to the handling of motorcycles. "Practicality" or (more accurately) impracticality is just too slender a basis for upholding the judge's judgment.
14. Neither party wanted the court to order a re-trial in this small case, and we were urged, if satisfied that the judgment had to be set aside, to reach our own decision on the evidence as best we can. I regretfully conclude not merely that the judgment in favour of the Chief Constable relating to breach of the 1992 Regulations cannot be supported but that he has not discharged the obligation (which is on him) of showing that he did comply with the requirements of the Regulations. It was possible (and not impractical) to prevent significant injury to trainees by proving them with stronger boots than the Alt-berg boots and the Chief Constable is therefore liable. I emphasize that this is not to say that the Chief Constable was in any way negligent at common law. Likelihood or foresight of injury does not come into the matter. Nor is it of any relevant to consider whether it would be sensible (as opposed to impractical) to provide boots such as motocross boots to trainees who would be unlikely to be wearing them in the course of their operational duties as police constables. The 1992 Regulations do not address matters of that kind. This is a sea-change from the old concepts of common law negligence. Whether that is a good or bad thing is not for this court to say, since the 1992 Regulations are now the law of the land.
15. As far as causation is concerned, the judge with respect misread the evidence of Mr Chugtai. To my mind Mr Chugtai was saying that on any view the injuries to Mr Blair would have been minimised if he was wearing stronger boots. That is enough to prove causation unless there is good reason to reject his evidence. The judge does not give any such reason and I cannot myself think of one.
16. In these circumstances there is no alternative to allowing this appeal and entering judgment for the claimant for what I understand to be an agreed sum by way of damages.

Lord Justice Lewison:

17. I agree.

Master of the Rolls:

18. I also agree.