Choosing the right PPE can be a complicated process, and a recent decision in a
personal injury claim that reached the Court of Appeal has shown how even
responsible employers can come unstuck. Mark Tyler explains
Mr TChoosing the right PPE can be a complicated process, and a recent decision in a personal injury claim that reached the Court of Appeal has shown how even responsible employers can come unstuck. Mark Tyler explains
Mr Threlfall was working for Hull City Council clearing the gardens of unoccupied council houses.
His team was equipped with litter-pickers and standard-issue street cleaning gloves made of cloth and leather.
While handling a discarded black plastic bag of rubbish he lacerated his hand severely on something sharp hidden inside.
The claim that followed involved interpreting the requirements imposed on employers by the Personal Protective Equipment at Work Regulations 1992, and in particular regulation 4 which requires PPE to be suitable. Suitability is not actually defined; the regulations contain a series of criteria which are in effect minimum requirements. As well as CE conformity these include appropriateness for the risks and the conditions in which the PPE is used; the ergonomic needs and the fit of the user; and effectiveness of the PPE (as far as practicable) to prevent or adequately control the risks it is meant to guard against without increasing the overall risk. (The word practicable here turns out to be significant as we shall see).
The judge ruled against Mr Threlfall in the (mistaken) belief that he had disregarded instructions to open and check bags before lifting them and so the accident was his own fault. There was no proper evidence of the instruction - only a vague warning to 'take care'- and having established that error the appeal focused on the Council's more technical defence based on the wording of regulation 4.
The Council maintained that the risk of injury to thee employee in this case was very low in the context of the training and other equipment provided, and the gloves actually provided were adequate for the job. It relied as well on the fact there had been many years of problem-free use of these gloves, and argued that whether PPE was suitable should not be judged with hindsight after the accident.
Risk assessment "too general" The Court of Appeal preferred Mr Threlfall's case. It criticised the Council's 'broad qualitative risk assessment' as inadequate: it was too general and did not take full account of the specific risks from hidden sharp objects. The correct approach to assessing the suitability of PPE, it said, is to treat effectiveness as being the starting point. Only after that criterion is met the considerations of appropriateness for the conditions of use and properly fitting the user etc can be considered.
The accident itself proved objectively that the gloves did not give protection and regulation 4 was therefore contravened. The Council could not escape liability in these circumstances unless it could show that it was impracticable to provide more effective PPE.
The Council had to acknowledge that cut-resistant gloves are widely available, and its case failed.
The result has significant ramifications for employers and suppliers in relation to gloves and for PPE generally. Hull Council's broad and pragmatic approach was one many health and safety professionals would adopt too: risk assessment guidelines generally say absolute safety is not the goal and one can ignore insignificant risks. Even the HSE guidance on protective gloves talks in terms of gauging the extent of exposure, and does not suggest taking the worst case scenario as the basis for selection. What emerges from this case is that the PPE Regulations contain a particularly rigorous test of suitability not found in related legislation, for example PUWER and the Workplace Regulations, which the courts have interpreted more favourably to employers. Except for risks of injury that are really far-fetched and trivial, the correct approach with PPE is to put effectiveness at the heart of suitability. That means employers envisioning the rare as well as common risk of the work before carefully selecting the right grades of PPE.
Manufacturers and suppliers, especially those of premium products, can take comfort from the result of this case. Their customers need to be wary of the potential liabilities that can come with low prices driving their procurement policies, and standardisation reducing their range of PPE to a lowest common denominator. But at the same time PPE manufacturers and suppliers can have duties of care to sell products that are safe and fit for purpose and to advise on their suitability for particular uses and their limitations. The Threlfall case also spells a danger of product liability claims for PPE suppliers who get this wrong.
Mark Tyler is a solicitor at Shook hardy & Bacon Int'l LLP.
