England and Wales High Court (Queen's Bench Division) Decisions

IN THE SHEFFIELD DISTRICT REGISTRY
OF THE HIGH COURT
ON APPEAL FROM THE KINGSTON-UPON-HULL COUNTY COURT
(HHJ Jack)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2009

Mr Justice Blake :

Introduction

1. This is an appeal from a decision of His Honour Judge Jack dismissing the claimant's claim for damages for an injury that he suffered on the 8^th May 2006 whilst he was in the employment of the defendant council. The single issue in the appeal was whether the judge was correct to conclude that the injury suffered by the claimant was not caused by a breach of the Personal Protective Equipment at Work Regulations 1992 (The Regulations).
2. Regulation 4 provides so far as is material that:

"(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 which are equally or more effective.

……

(3) Without prejudice to the generality of paragraphs 1…. …personal protective equipment shall not be suitable unless –

a) it is appropriate for the risk or risks involved and the conditions at the place where exposure to such risk or risks may occur…..

d) so far as it is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk."

The evidence

3. At the time of the accident the claimant was employed as a street scene operative and had been so employed by the defendant council for 7 months previously. Part of his duties included clearance of gardens of properties owned by the council into which material had been dumped. He was employed in such a task at the time of his accident. Together with others he was in a garden that was overgrown and had items of rubbish in it, including at least one black plastic bag and contents. The claimant had received induction training as to how to go about his duties and had in January 2006 attended a one day Health and Safety at Work course. He was supplied by his employer with various items of equipment namely a litter picker, a rake, a shovel, and a pair of gloves described as standard riggers' gloves.
4. The injury occurred during the task of trying to remove the bin liner. The claimant is right handed but the injury he suffered was to the inner aspect of his little finger on the left hand about half way along the length of the finger. It was a serious injury in that it severed the artery and the nerve of the finger and partially severed the tendon. The claimant had to undergo surgery in response to the injury. He was wearing the gloves supplied by the defendant at the time of the injury and so whatever it was that his left hand was in contact with cut through the fabric of the glove and into the finger as just described. The issue is whether the defendant failed to provide suitable protective gloves.
5. The evidence adduced by the claimant at the trial did not enable any conclusions to be drawn as to precisely how he suffered the injury. The learned Judge observed at paragraph 6 of his judgment :

"It is not entirely clear how he suffered that injury. He has given various accounts which appear in the bundle, and also during the course of his evidence as to the precise circumstances in which he suffered the injuries. It is fair to say that on any view of those accounts he is saying the injury was suffered in connection with the picking up of that black bin liner. It is clear from his evidence that he did not look to see precisely what he was grasping hold of. At one stage during his evidence he said he thought that his hand went inside the bin liner. At other times he said he was not sure about that. It is clear that he does not know exactly where his hand went."

6. The claimant faced two difficulties at trial. The first has already been noted. He could not say what caused the injury to his finger; where the object that did cause the finger was located; whether it was inside the sack or outside it; whether it was sticking out of the back of the bin liner or hidden within it; what kind of grip or contact he had with that object or whether the object and its sharp edge should have been apparent at a casual glance. Secondly, the claimant's pleaded case at trial was that the gloves with which he had been supplied were cloth gloves that had no leather component at all, and the inference of his pleaded case was that if he had been provided with leather gloves, the accident would have been prevented.
7. On the day of the trial the claimant was shown a set of Arco Standard Riggers' Gloves of the same type as he had been wearing at the time of the accident. Those gloves have a cloth back and sleeve but the palms and the fingers are covered with a leather material. The claimant accepted that a case based upon a proposition that leather gloves were sufficiently robust by contrast with the gloves which his employers had been provided, had to be abandoned. Instead, the claimant submitted that whatever the nature of the gloves with which he had been provided, they were not suitable for the job to which he had been assigned, and therefore failed to meet the standards required by Regulation 4 (1) of the Regulations. Essentially he relied on the fact that the gloves supplied did not prevent the injury to support the contention that they were not suitable for the work of garden clearance, given the reasonable possibility that sharp objects were among the items to be cleared.
8. The defendant called as witnesses Mr Tyson the supervisor for street care for the last twenty years, and Mr Kirby, the group manager for street care who had held managerial positions in this sector of activity for twenty three years to the effect that there had been no reported problems with the gloves when they were used for refuse and garden clearance. The type of glove issued was used by some forty five employees of the council and by many other councils in the locality and elsewhere. There were regular meetings between the council and the trade unions Unison and GMB as to health and safety matters. The suitability of the gloves had never been an issue at those meetings. In short there had been nothing before the accident to alert the council to the fact that the gloves supplied in this case may not be either adequate or suitable to the task in hand. The manufacturer defined the glove as "simple design-for minimal risks only".
9. The learned Judge observed that it was accepted by the defendants that the claimant could come across broken glass, sharp pieces of metal for example tins and on occasions needlesticks while clearing gardens. He observed that he was entitled to infer from examination of the glove presented to him that more than minimal force was required to make even a sharp object go through the glove and into the claimant's hand.
10. He concluded at [28]:

"I find that the risk of the claimant lacerating himself on a sharp object, as he in fact did, was very low indeed given the training which was provided to him and the tools which were provided to him to pick up any object which might be dangerous, or to dig round it in order to see how it should be handled. In those circumstances, I find that there was not a high duty on the defendant to provide the best possible gloves, the gloves with a high degree of cut resistance. This was not a high risk, and therefore there was not a duty to provide highly protective gloves. I find that the gloves which the defendant, in fact, supplied, were, in the circumstances, adequate for the risk which existed. There is good evidence that I find in fact that such gloves had been used for this type of task by large numbers of operatives over many years, both in this and other local authorities, without as far as Mr Kirby could recall, there being any problem with the gloves. I find that if there had been any significant problem with the gloves, then it would have come to light during the course of the regular safety meetings which Mr Kirby conducted with union representatives. Therefore, I find that the gloves were adequate in the circumstances and that there was, therefore, no breach of Regulation 4 and no negligence on the part of the defendant in failing to provide better gloves."

The standard set by the Regulations.

11. The Regulations in question are part of the way in which the United Kingdom discharges it's obligations in the field of health and safety at work imposed by the Framework Directive of the European Council of the 12^th June 1989 (89/391/EEC). They should accordingly be interpreted in the light of the purposes of that Directive.
12. Article 6 of that directive imposes general obligations on employers and provides:

"1. Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means. The employer shall be alert to the needs to adjust these measures to take account of changing circumstances and aim to improve existing situations.

2. The employer shall implement the measures referred to in the first sub-paragraph of paragraph 1 on the basis of the following general principles of prevention:

a) Avoiding risks;

b) Evaluating the risks which cannot be avoided;

c) Combating the risks at source;

d) Adapting the work of the individual especially to the design of the workplace, the choice of work equipment and the choice of working and production methods……

e) Adapting to technical progress;

f) Replacing the dangerous by the non-dangerous or the less dangerous;

g) Developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the implements of factors relating to the working environment;

h) Giving collective protection measures priority over individual protective measures;

i) Giving appropriate instructions to the workers.

3. Without prejudice to the other provisions of this directive the employer shall, taking into account the nature of the activities of the enterprise and/or establishment:

a) Evaluate the risks to the safety and health of workers, inter-alia in the choice of work equipment, …… Subsequent to this evaluation …. - assure an improvement in the level of protection afforded to workers with regard to health and safety….."

13. There is now a body of jurisprudence applying Regulations made under the Framework Directive of a similar kind into the present Regulations that identifies that the standard imposed on the employer is higher than the duty in negligence, but whilst the duty is absolute, it does not impose an absolute obligation to prevent any injury at all.
14. In the case of Koonjul v Thameslink Healthcare Services (2000) PIQR 123 at p.126 Hale LJ said:

"For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of Regulation 4; that there must be a real risk, if foreseeable possibility of injury; certainly nothing approaching a probability. I'm also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have. "

That passage was quoted by Waller LJ in the case of Marks & Spencer PLC v Kathleen Palmer [2001] EWCA Civi1528 (9^th October 2001). His Lordship also noted at [24] a decision from a previous generation, namely Rogers v George Blair (1971 11KIR 391 where Salmon LJ at 395 said

"the protection to be suitable need not make it impossible for the accident to happen but it must make it highly unlikely".

In his judgment Waller LJ said:

"25. I am not sure that language such as 'real risk' or 'slight risk' necessarily encapsulates the exercise that it seems to me must be performed. If the risk, however slight, is of a very serious injury or death in falling from a high storey building then the fact that the risk is slight may not outweigh the cost and importance of taking adequate precautions. Equally no one would suggest that the employer should be entitled to have a seriously uneven floor if the risk is simply that someone may trip over it – i.e. that the risk is not of a very serious injury. It seems to me that the exercise to be performed is one of taking into account all relevant factors in this context…….

27…. The court, as it seems to me, should stand back and ask itself, by reference to the above factors if they existed before this accident took place but not with any benefit of hindsight was this floor suitable. Was it uneven to an extent which exposed persons to risk of their health or safety?"

15. In the case of Yorkshire Traction Co. Ltd. V Walter Searby [2003] EWCA Civ 1856, (19^th December 2003) the Court of Appeal had to deal with a case of alleged breach of The Provision and Use of Work Equipment Regulations 1992 in respect of a bus driver who had been assaulted at night by an irate passenger. A distillation of the judgment of Pill LJ at paragraphs 32, 37, 41 and 44 indicates that:

(1) That mere foreseeability of risk does not of itself impose a duty on an employer to provide equipment to prevent it. It is necessary to consider the degree of risk involved in the absence of the equipment in question.

(2) The experience of the workforce and union health and safety officials as to the need for and desirability of the equipment in question is a relevant but not decisive consideration.

(3) An assessment must be made as of the date of the accident of the state of the workplace having regard to the operation and conditions involved in its use and the extent of the risk presented by the alleged defect.

(4) While the duty is a high one a consideration of suitability involved the same exercise as had been conducted for negligence in relation to the assessment of risk.

16. In the case of Dennis Toole v Bolton MBC [2002] EWCA Civ 588, the Court of Appeal overturned a finding of contributory negligence in a case where a council employee had been directed to pick up needles or syringes that had been deposited in a toilet in its town hall and where the officer had not used heavy duty protective gloves that had been available where the judge found that such gloves were not adequate for the purposes of preventing injury by syringes.

The relevant considerations in the present case.

17. I accept the submission made on behalf of the defendant, that the relevant context in this case included the following:

(1) The claimant was not being tasked to pick up objects which were specifically identified as dangerous. The position was merely that he might in the course of his garden clearance duties encounter sharp objects whether partly hidden in the vegetation, apparent for all to see, or mingled up with other rubbish inside a bin bag or other containers.

(2) The activity undertaken by the claimant could be done by use of the litter picker, spade and rake to some large measure, and thus avoid direct contact between the rubbish and the hand of the claimant in the course of such activities.

(3) Common sense and basic training suggests that the claimant should be on the look out for objects which might cause injury if they were visible or could be identified by cursory inspection.

18. On the other hand, I consider there is substance in the claimant's submission that insofar as the defendant and the learned judge relied upon the proposition that training had been given that any black plastic bag should be opened and inspected before being lifted that would be an error of approach in the particular context of this trial. Such a requirement was never suggested as the appropriate one in the course of the pleadings or witness statements filed on behalf of the defendant. It was never put to the claimant that he had been so instructed or he should have realised that that was the suitable course. On the contrary he was cross-examined on the basis that lifting a plastic bag with the gloves supplied to him was a perfectly normal thing to do.
19. Further, in my judgment, opening a plastic bag and examination of the contents might well involve exposure to further risks, and in any case where a bag had a substantial amount of material in it would be unlikely to reveal hidden dangers. It is apparent that a full plastic bag full of rubbish could not be lifted with the litter picker, an object that required manipulation for the picking up of individual items of comparatively light weight. Even if, it had been established that training had been given to that effect, to all persons employed as street scene operatives, it is an obvious possibility that the practical job of clearing rubbish contained in plastic bags would lead to any such requirement being regularly and persistently ignored by the workforce.
20. I further accept the claimant's submission that any such instruction would not adequately control the risk by means which are equally or more effective than suitable protective equipment within the meaning of Regulation 4(1).
21. However, the problem in the present case is not whether training in approaching plastic bags was an adequate alternative to suitable personal protective equipment, but what protective equipment should have been considered suitable in the context of this case?
22. The claimant pointed out that cut-resistant gloves are available from the same manufacturer as supplied the defendant's standard riggers' gloves. Examples of such gloves were put to the defendant's witnesses in cross examination. I have been shown the catalogue and the examples that were put. From a cursory glance, they all appear to be composed of specialist fabrics giving a high degree of protection from cuts where workers are engaged in the use of or close contact with very sharp knives or glass as a persistent part of the activity, where standard gloves would easily be ineffective in the event of sustained and forceful contact. Mr Kirby accepted that such gloves existed but did not consider that the risk of injury was such that it was necessary or appropriate to provide them.

Conclusion

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 incurred 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 the work force had, did not suggest that the risk of encountering unseen sharp objects was such that specialist 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 had not been visited for years. The claimant indicated that it was not as bad as some and the defendants 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.
27. The outcome might possibly have been different if the claimant had been able to establish that his hand was cut by some unseen sharp object hidden amidst the general debris inside a bin liner or other container, but he did not. If the defendant had been liable in such an eventuality, in my judgment no issue of contributory negligence would arise. The purpose of providing suitable protective equipment is to adequately protect the workman from risks. There was no suggestion that the claimant had been warned that the gloves only had a limited capacity to protect and picking up a bag using the gloves was precisely what was suggested was a normal course when the claimant was cross-examined.
28. It may be for the future, the defendant will have to test the cut-resistant capacity of the standard rigger gloves to determine whether it can still be satisfied that they remain appropriate to the kind of risk likely to be encountered in garden clearance. The Framework Directive indicates that the process of assessment is ongoing.
29. However for the reasons I have given this appeal is dismissed.