Threlfall v Hull City Council [2010] EWCA Civ 1147

Case No B3/2009/2715[2010] EWCA Civ 1147
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COUNTY COURT
MR JUSTICE BLAKE
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
HH JUDGE JACK
8KH02908
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/10/2010
Before
LORD JUSTICE WARDLADY JUSTICE SMITHLORD JUSTICE JACKSON
Between
Steven ThrelfallAppellantHull City CouncilRespondent
James Rowley QC and Matthew Stockwell (instructed by Rapid Response Solicitors) for AppellantStuart C Brown QC and Corin Furness (instructed by Plexus Law) for RespondentHearing Hearing date : 6 October 2010
Judgment

Introduction

[1]This is an appeal from the order of Blake J made on 7 January 2010 dismissing an appeal by Mr Steven Threlfall from the rejection by HH Judge Jack of his claim against Hull City Council (the Council) for damages for personal injuries.[2]Mr Threlfall was working as a street scene operative for the Council when, on 8th May 2006, he sustained a serious cut to his left hand while clearing debris from the garden of a council property. He brought an action in the Hull County Court, alleging that his injury had been due to the negligence or breach of statutory duty of the Council in failing to provide him with suitable protective gloves. His claim failed, as did his first appeal to Blake J. He now appeals to this court with permission granted by Sedley LJ, who considered that a difficult but important point arose in respect of the construction of the Personal Protective Equipment at Work Regulations 1992.

The facts

[3]At the time of his accident, the claimant and the team of which he was a member were working on the maintenance of the gardens of unoccupied Council houses. The object of the exercise was to strim the grass, which was usually quite long, but before this could be done it was necessary to remove rubbish and debris. The men were provided with litter pickers, rakes and shovels for this purpose. Often there were black plastic bags of rubbish left by former tenants or thrown into the garden by local residents. These could not be picked up using a litter picker and it was usual to lift them by hand. There was evidence from one of the defendant’s witnesses that the men had been told that they must always look inside a bin bag before they picked it up. This allegation was not part of the defendant’s case before or at the trial and was never put to the claimant.[4]It was apparently while handling one such bag that the claimant suffered an injury to his left hand. He was not sure exactly how it had happened. But his case was that, however it had happened, the gloves provided by his employers had not protected him from injury. These gloves, which were standard issue for all the Council’s street scene workers, were described by the manufacturer as being of a simple design for ‘minimal risks only’. They were made partly of cloth and partly of leather which felt like soft brushed suede. They were not ‘cut-resistant’.

The judgment of HH Judge Jack

[5]After recording that the lack of certainty as to how the accident had happened created difficulties for the claimant, the judge eventually accepted that the injury had been caused when the claimant had grasped ‘something’ with a fair degree of force, sufficient for some sharp object to have penetrated his glove and to have severed an artery and tendon in his left little finger.[6]The main ground on which the judge rejected the claim was that the claimant was the author of his own misfortune. He had been told to open any bags before lifting them and he had not done so. It was common ground when the claim went on the first appeal to Blake J that HHJ Jack had fallen into error in that respect. It had never been the defendant’s case that the men were expected to look inside any bags; that had been an invention of one particular witness. The defendant’s real case was that it was perfectly safe for the men to pick up black bags without looking in them.[7]However, in addition to deciding the case on that purely factual basis, the judge dealt with the claimant’s allegation that the gloves provided constituted a breach of regulation 4 of the Personal Protective Equipment at Work Regulations 1992. So far as relevant, this provides: (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). (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).[8]Regulation 6 is closely associated with the primary duty under Regulation 4. It is headed ‘Assessment of personal protective equipment’ and requires the employer to carry out a risk assessment as follows:(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. (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;[9]As I have said, regulation 6 is linked to regulation 4. From the pleadings, it appears that counsel originally instructed for the claimant (not Mr Stockwell who appeared with Mr James Rowley QC in this court) had not expressly alleged a breach of regulation 6. At the hearing, he applied for permission to amend but the judge refused. It appears that counsel submitted that the risk assessment which the Council had carried out was inadequate because it dealt only with the general risks of carrying out the garden work and did not consider the risk of laceration from sharp objects or the need for suitable protective gloves. At all events, the judge made no reference to regulation 6 in his judgment. This was unfortunate because, as Mr Stuart Brown QC appearing for the Council on this appeal readily accepted, regulations 4 and 6 should be considered together. Regulation 6 imposes a freestanding obligation on an employer although it is true that the breach of it could never be directly causative of injury. The failure of the employer properly to assess the need for protective gloves and the suitability of the ones he proposes to provide may be relevant to the allegedly causative breach of duty under regulation 4(1). Perhaps, for the avoidance of difficulty and argument in future, counsel would be well advised to plead a failure to provide suitable personal protective equipment ‘contrary to regulations 4 and 6’. However, my view is that, even if that is not done, the court should not ignore regulation 6.[10]The claimant’s contention was that there was a risk that he would suffer a laceration while clearing rubbish and the gloves provided could not protect his hands from such cuts. Therefore they were not suitable. Other gloves which could prevent lacerations were available on the market and this was not disputed. The Council agreed that there was a risk of laceration but submitted that it was very low and that the gloves provided were adequate to meet the risk.[11]The judge accepted the claimant’s contention that there was a foreseeable risk that street scene operators would encounter sharp objects while clearing gardens. These might include broken glass, sharp metal objects such as open tins and even needle sticks. They might be concealed, for example, within a bag. However, he assessed the degree of risk from such things as ‘very low indeed’ given the training and the tools with which the men were provided. The judge was of the view that the training (which he thought included instruction to look inside rubbish bags before lifting them) and the provision of a picker, shovel and rake were sufficient to reduce the risk of laceration to a very low level. Because the risk was not high, in the judge’s view, there was no duty to provide highly protective gloves. The gloves in question had been used for many years without mishap and there had been no complaint about them at Health and Safety meetings attended by Union representatives. Therefore, said the judge, the gloves were adequate in the circumstances and there was no breach of regulation 4.[12]Because this appeal is from the decision of Blake J on the first appeal rather than from that of Judge Jack, I will comment only briefly on his reasoning. It appears to me that the judge failed to consider and apply the words of the regulation. Instead, he applied a common law test. He accepted that there was a reasonably foreseeable risk of injury but assessed it as a low risk and then asked in effect what it was reasonable for the employer to do in the light of that low risk. True he did not expressly use the word ‘reasonable’ but his holding that the gloves were adequate in the circumstances amounts in this context to much the same thing.

The first appeal

[13]On appeal to Blake J, the judge dealt robustly with the first basis on which Judge Jack had found against the claimant. He noted that it had never been suggested to the claimant that he should have looked inside the bag before trying to pick it up. Indeed the claimant had been cross-examined on the basis that simply picking up a bag was a perfectly normal thing to do. The only instruction which the claimant had been given was to take care. Moreover the judge expressed the view that trying to examine the contents of a bag would be pointless as such examination would be unlikely to reveal hidden dangers. I respectfully agree with that observation. The judge also said that a rule that bags should be inspected would be honoured more in the breach than the observance.[14]That left the question of whether the gloves were suitable and whether there was a breach of regulation 4. Or at least it appeared to leave only that question. But as I will later explain, the claimant’s difficulty in showing exactly how the accident had happened was to raise its head again as part of the judge’s reasons for dismissing the appeal.[15]The judge began his consideration of the regulations by noting that they were the United Kingdom’s response to its obligations in the field of health and safety at work to the Framework Directive of the European Council of 12 June 1989 (89/391/EEC). I do not propose to burden this judgment with any citation from the Directive as it does not appear to me to assist in the interpretation of the regulations and neither counsel before us has suggested to the contrary.[16]After summarising the facts and referring to a number of authorities, the judge indicated that he accepted various submissions from the parties. From the Council he accepted that the claimant was not being tasked to pick up objects which were specifically identified as dangerous. The position was that he might encounter sharp objects which might be obvious to see or might be hidden in the vegetation or might be mingled with other rubbish inside a bin bag or other container. He accepted that many of the clearance tasks could be done using the tools provided so that, to a large measure, direct contact between the rubbish and the claimant’s hand could be avoided. Common sense required the claimant to keep a good look out for potentially dangerous objects. On the other hand, he accepted that the claimant could not pick up a rubbish bag with a picker and could not be expected to look inside such bags. As the only instructions the claimant received were to take care, the judge accepted that the work entailed a risk of injury by contact with sharp objects and that the giving of instructions could not adequately control that risk.[17]The judge turned to consider the suitability of the gloves provided. He first considered the availability of gloves, supplied by the same company as provided those used by the claimant, made from cut-resistant fabric. He noted that these gloves were advised for workers engaged in the use of knives or glass as a persistent part of their activity. The defendant had accepted that such gloves existed but contended that the risk of injury was such that it was not necessary or appropriate to provide them.

The judge then expressed his conclusions as follows:

[18]“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.” (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.[19]The judge then speculated as to whether the outcome might have been different if the claimant had been able to establish exactly how his hand had been cut and that this had been from some unseen object hidden among other debris in a bin liner. He reached no conclusion on that point other than to say that, if liability had been established in such circumstances, he would not hold the claimant to have contributed to the accident by his own negligence.

The appeal to this court

[20]On this appeal, Mr Rowley for the claimant/appellant submitted that both judges had fallen into error. Neither had properly applied the words of regulation 4 (as informed and supplemented by regulation 6) and this court would have to make its own assessment of the suitability of the gloves provided.[21]He attacked first the stance taken by both judges that the appellant was in difficulties in proving his case because he could not show exactly how the accident had happened. He submitted that this was just the kind of accident in which it might well be impossible for the appellant to know exactly how his hand came to be cut. Mr Brown did not disagree. I would accept Mr Rowley’s submission. It was never disputed that the appellant had cut his hand while clearing rubbish from a garden and that he must have come into contact with an object sharp enough to penetrate his protective gloves. It does not seem to me at all surprising that, when the appellant realised that he had cut his hand, he should have concentrated on his injury rather than looking for what had caused it. It does not appear that anyone else examined the area to search for what might have caused the injury. In my view, it should have been sufficient that the appellant showed that his hand had been cut while he was doing his job of clearing rubbish and had been wearing the gloves provided. If he were then able to show that the gloves provided were not ‘suitable’ that should have been enough for the inference of causation to be drawn.[22]Mr Rowley’s second submission was that the judge’s second reason was unsustainable. The judge relied on the fact that the risk assessment had not shown that cut-resistant gloves were required. Indeed it had not but Mr Rowley pointed out that that conclusion was to ignore the inadequacy of the risk assessment actually carried out. That risk assessment had dealt only with the general risks of garden clearance. It did not attempt to assess the risks of laceration; nor did it consider what type of gloves should be provided. Mr Brown did not demur from these submissions.[23]I would accept that the risk assessment which the Council (now the respondent) carried out was manifestly defective when compared with the requirements of regulation 6. Regulation 6 requires an employer to give specific consideration of the risks against which it was intended to provide a form of protective equipment. This risk assessment should have specifically dealt with the risk of laceration and the type of protective gloves required in the light of that risk. It was not open to the judge to base his conclusion on the result of so inadequate a risk assessment.[24]Although the judge expressly based his reasoning on the risk assessment, he did also consider the suitability of the gloves provided. Had he considered the question of suitability in accordance with the law and had he been entitled to reach the conclusion that the gloves were suitable, I would not interfere with his decision just because his expressed reasons on other issues were open to criticism.[25]The judge’s approach to suitability was to say that, 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. That was a paraphrase of regulation 4(2) and (3). He then held that, in this case, the employer had been entitled to conclude that the standard gloves, alongside the other equipment and training provided, were appropriate and effective. In the absence of some reason to anticipate a heightened risk at the site in question (which there was not) and any past history of problems, he considered that equipment that is appropriate and adequately effective must be suitable.[26]Mr Rowley attacked this approach, submitting that the judge had, in effect, applied a common law test of reasonableness. He should have followed the structure of regulation 4. If he had done so, he would have been bound to conclude that the gloves were not suitable.[27]Mr Rowley took us through the process which, he submitted, the judge should have followed. First, it was common ground that the clearance of rubbish from these gardens gave rise to a risk of injury by laceration. Therefore regulation 4(1) was engaged unless it could be shown that the risk of laceration had been adequately controlled by other means that were equally or more effective. The judge had accepted that the tools provided could not be used for picking up a bag or container of rubbish and that the only instructions that had been given (and indeed could be given) were general instructions to take care. Therefore, the risk could not be adequately controlled by other means and regulation 4(1) was engaged. It followed that the employer was under a duty to provide ‘suitable’ gloves.[28]Mr Rowley submitted that, once the risk of laceration was recognised, the employer had to follow the process of assessment set out in regulation 6 and to consider what kind of protective equipment was needed. He had to consider what characteristics the equipment had to have in order to be effective against the risks (see Regulation 6(2)(b)). That would lead directly to the conclusion that cut-resistant gloves were required. The provision of such gloves would not of itself create any risks. If, as required by regulation 6(2)(c), the employer had then compared the cut-resistant gloves which were needed to avoid the risk of laceration, with the general purpose gloves which had hitherto been provided (albeit without adverse effect), it was clear that the general purpose gloves did not measure up to the requirement for cut-resistant gloves. As to regulation 6(2)(d), there was no incompatibility as between cut-resistant gloves and any other form of protective clothing required. The conclusion was, Mr Rowley submitted, that only cut-resistant gloves could be considered ‘suitable’.[29]This approach, submitted Mr Rowley, was in conformity with regulation 4(3)(a) and the guidance it gave as to suitability. To be suitable, the gloves had to be appropriate for the risks involved at the place where the risk occurred and for the period for which they were to be worn. He submitted that the standard gloves were not appropriate to the risk involved but cut-resistant gloves were appropriate to those risks and for use in the relevant circumstances and for the period of use. Although the standard gloves were perfectly appropriate for ordinary gardening jobs, they were not appropriate for this type of gardening which entailed the risk of laceration. I should say at once that I do not accept this aspect of Mr Rowley’s submission, for reasons which will later appear.[30]As to regulation 4(3)(d), Mr Rowley submitted, first, that no question of practicability arose in the present case and Mr Brown agreed with that. But Mr Rowley also submitted that, in the circumstances of this case, suitability required that the protective equipment should be effective to prevent injury. It was not sufficient that the gloves should adequately control the risk. He submitted that the words ‘adequately control the risk’ were intended to deal with a different type of situation, for example where the risk arose as the result of exposure to a noxious gas or injurious dust and the protective equipment could reduce the risks to an acceptable level even though it could not completely prevent any exposure. Here, the risk could be completely avoided by the provision of cut resistant gloves and, if that were practicable, as it was, that was what was required.[31]In summary, Mr Rowley submitted that the duty imposed by regulation 4 was high. Here the risk (now acknowledged) should have been recognised in advance by a proper risk assessment and, once that had been done, it was obvious that the gloves provided were not suitable; only cut-resistant gloves could be so described.[32]Mr Brown for the respondent submitted that the appellant’s submissions verged on imposing absolute liability upon the employer. He suggested that Mr Rowley was, in effect, contending that, once it was shown that an accident had occurred which the provision of better gloves could have avoided, liability was established. That was to allow the impermissible use of hindsight. He submitted that the assessment of suitability had to be carried out on the basis of the knowledge available to the employer before the accident.[33]In support of this proposition, Mr Brown referred us to the decision of this Court in Palmer v Marks & Spencer PLC [2001] EWCA Civ 1528 where the suitability of a floor had to be considered under the Workplace (Health, Safety and Welfare) Regulations 1992. Waller LJ, with whom Schiemann LJ agreed, said that, in assessing the suitability of a floor (from, of course, a safety point of view), the court must take into account all the relevant factors and must then:
“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.[34]Mr Brown submitted that this broad qualitative assessment of suitability was as appropriate to the Personal Protective Regulations as it was to the Workplace (Health, Safety and Welfare) Regulations. It would be strange if ‘suitable’ meant something different in two sets of Regulations promulgated at about the same time and both concerned with the health and safety of workers. However, he acknowledged that there were material differences between the two sets of regulations. Whereas in the Workplace Regulations, no guidance was given at all as to the meaning of suitability, in the Protective Equipment Regulations, suitability is extensively defined. On this point, Mr Rowley submitted that, under the Workplace Regulations, the court could do nothing other than to make a broad assessment of suitability, taking the relevant factors into account. But, in the Personal Protective Equipment Regulations, it was incumbent on the court to apply the statutory definition and to follow the specific statutory route. Not so, said Mr Brown, the words of regulation 4 contained words of uncertain meaning – he described them as ‘weasel words’ - which meant that the court had to make the kind of qualitative evaluation called for in Palmer. These words of uncertain meaning were ‘appropriate’ and ‘adequately control’. When it was appreciated that a qualitative assessment was required, it could be seen that that was what the judge below had made and his conclusion should not be disturbed.

Discussion

[35]For the last 20 years or so, it has been generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with his operations so that he can take suitable precautions to avoid injury to his employees. In many circumstances, a statutory duty to conduct such a risk assessment has been imposed. Such a requirement (whether statutory or not) has to a large extent taken the place of the old common law requirement that an employer had to consider (and take action against) those risks which could be reasonably foreseen. The modern requirement is that he should take positive thought for the risks arising from his operations. Such an assessment is, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics [2005] PIQR 975, ‘logically anterior’ to the taking of safety precautions. I said something similar, in rather less elegant language, in paragraph 58 of Allison v London Underground Ltd [2008] ICR 719.[36]In the present case, the employer carried out a general assessment of the risks arising for its street scene workers. That assessment failed to recognise that there was a risk that employees might suffer a laceration of the hand as the result of contact with some sharp object which might well be hidden from view and therefore not avoidable by the taking of ordinary care. If that general risk assessment had been properly carried out, the employer would have recognised that specific risk as it did for the purpose of these proceedings. It would also have recognised the need to consider the suitability of the protective gloves it provided for these men. Regulation 4(3) and regulation 6 would have been there to guide it.[37]However, I entirely accept that it would have been quite possible for the judge to hold that that, notwithstanding the failure to carry out an adequate risk assessment, the employer was not in breach of regulation 4(1) and was not liable for the injury. If the employer had provided suitable gloves, the lack of a risk assessment would have been irrelevant.[38]In the present case, I start from the accepted positions that the appellant was exposed to a risk of laceration which could not be adequately controlled by other means and that the respondent was under a duty to provide suitable protective equipment, in the form of gloves.[39]I accept Mr Brown’s submission (from which I did not understand Mr Rowley to dissent) that the suitability of any protective equipment must be judged at the time when the equipment is provided. The court may well be assisted by consideration of what a properly conducted risk assessment would have revealed but, in the end, the question is the suitability of the protection provided. Although regulation 6 is important as a guide to the employer as to the steps he should take in deciding whether his proposed equipment is suitable and although evidence of the process undertaken and the reasoning adopted by the employer may be helpful to the judge, regulation 6 does not define suitability. For that we must look at regulation 4(3). In the context of the present case, only sub-paragraphs (a) and (d) are germane but it may be helpful to consider the other sub-paragraphs to see what kind of criteria are relevant to suitability.[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. We are not concerned here with any problems of practicability; it is accepted that it would have been practicable to provide effective protection. Nor are we concerned with any question of increasing 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 affect 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.[43]In the present case, where the risk of laceration from hidden sharp hazards is acknowledged, the first question to be asked is:
“Were these standard issue gloves effective to prevent or adequately control the risk?”
Mr Rowley submitted that they were not; the claimant had suffered a significant injury. However, that is to rely on hindsight and suitability must be considered without that benefit. Mr Brown submitted that the gloves were effective adequately to control the risk. However, his difficulty was that the judge did not apply his mind to this specific question. In his paragraph 25, he elided the issues of suitability and concluded that the employer had been entitled to conclude that the standard gloves were appropriate and effective. He did not ask himself whether, objectively considered, these gloves were effective to prevent or adequately control the risk. Instead, as Mr Rowley submitted, he applied the common law test of whether the employer’s actions had been reasonable in the circumstances.[44]I would accept the general thrust of Mr Rowley’s submission. The first task of the judge in a case such as this will often be to decide whether regulation 4 applies at all. That was not in issue here. It did apply because it was accepted that there was a risk of injury which could not be adequately controlled by other means. I would say only that, if the judge does have to decide this issue, it seems to me that he is not required to make any assessment of the frequency or gravity of the risk. If a residual risk exists, the regulation is engaged, provided that the risk of occurrence is not so slight as to be de minimis or the nature of the harm so trivial that it should properly be ignored.[45]When considering the suitability of protective equipment, the judge is required to follow the statutory scheme. In the context of these regulations, unlike the Working Places Regulations, suitability does not entail a general qualitative assessment. The difference arises because, in the Workplace Regulations, the Court is left to its own devices. In the Protective Equipment Regulations, it is given a good deal of guidance – almost a checklist. As I have said, it seems clear to me that effectiveness is at the heart of suitability. If equipment is effective, it will be suitable if it also satisfies the other criteria. But if it is not effective, it could not possibly be suitable.[46]In the present case, the standard issue gloves were plainly not effective to prevent or adequately control the risk of laceration as it should have been assessed. I say that not with the benefit of hindsight but because the description attached to them by the supplier was they were suitable for minimal risks only and the risk of laceration for these men was more serious than that. I reach that conclusion also because physical examination of the gloves (available to both judges as it was to this court) shows that they were ordinary gardening gloves which common sense and common experience shows are not capable of withstanding pressure from a sharp object.[47]In the present case it did not fall to the judge to consider the suitability of any alternative glove. It appears to have been common ground that the cut-resistant gloves available from the same supplier as the standard issue gloves (at greater expense it must be admitted) would have been effective to prevent or adequately control the risk of laceration. Moreover, no issues arose as to the practicability of providing such gloves and no suggestion was made that such gloves would have been inappropriate or would have failed the suitability test under any other sub-paragraph of regulation 4(3).[48]It follows that there is no need for this court to consider what is meant by ‘appropriate’ in sub-paragraph (a) of regulation 4(3). I indicated earlier that I did not accept Mr Rowley’s submission that the gloves provided by the Council were not appropriate because they were not cut-resistant. In my view, that submission confuses appropriateness with effectiveness. Effectiveness is dealt with at (d) and I think appropriateness is something different. I think it is probably intended to import a concept of proportionality. For example, an employer should not be expected to provide and to require his employees to wear (all day) a full protective suit with air supply just because there is a risk of occasional exposure to a noxious but non-fatal gas. Considerations of appropriateness are likely to arise only when there has been a failure to provide an identified effective form of protection which the employer claims would not have been suitable because, although effective, it was inappropriate. It may be that considering appropriateness may entail assessment of the extent of the risk envisaged and the gravity of the consequences if the risk materialises. But, as I have said, that consideration does not arise in the present case.[49]For the reasons I have given I would hold that the gloves provided by the employer were unsuitable and their provision amounted to a breach of Regulation 4. I would also hold that the breach was causative of the appellant’s injury and that he established primary liability.

The cross appeal

[50]In the event that the appeal on primary liability were to succeed, Mr Brown cross-appealed against the judge’s holding that the appellant had not been guilty of contributory negligence. In fact, the judge’s conclusion was based upon a hypothesis that the appellant might have been able to satisfy him that the injury had been sustained due to contact with an unseen sharp object hidden within the general debris inside a bin liner or other container. In those circumstances, the judge held that there would have been no contributory negligence. Those hypothetical circumstances still do not apply (provided that my brethren are in agreement with my conclusions) as I have held the employer liable on the more general basis that the accident happened in some uncertain way while the appellant was collecting rubbish and the gloves provided were unsuitable. Thus, rather than attacking the judge’s specific holding, Mr Brown now seeks to contend simply that the appellant contributed to his injury by his failure to take reasonable care for his own safety.[51]Mr Brown’s difficulty, as he readily recognised, was that the burden of proof was now upon the respondent. Whereas on primary liability, much had been made of the appellant’s inability to explain exactly how his hand came to be cut, that problem was now visited upon the respondent. Mr Brown could not point to any finding as to a failure by the appellant to keep a proper look out or to obey any instructions or to follow any laid down system of work. True it is that Judge Jack had criticised the appellant on the ground that he had failed to open and look inside the bag as he had been instructed. But that holding had been found to be wholly misconceived. Nor could Mr Brown point to any evidence from which this court could be invited to conclude for itself that the appellant had failed to take proper care for himself.[52]In my view, this cross-appeal is hopeless. There is no evidence to support a holding that the claimant failed to take reasonable care for his own safety. There is not even evidence of inadvertence, although that would not be enough even if it existed. I would dismiss the cross-appeal.[53]I agree.[54]I also agree.

Cited in 6 later judgments