Personal Protective Equipment Regulations 1992


Fytche v Wincanton Logistics plc, HL, 1 July 2004; [2004] UKHL 31



The case involved a very small hole in a pair of boots with a steel toe-cap. Some icy water entered the hole and caused the claimant mild frostbite.



The Court of Appeal restricted the application of regulation 7(1) of the Personal Protective Equipment Regulations 1992 to the risk identified by the employer in assessing the need for personal protective equipment - namely heavy objects falling on the claimant's toes. As there were no defects within the steel toe-cap, the absolute duty imposed by the regulation did not apply (see [2003] Gazette, 18 September, 32; [2003] ICR, 1582, CA).



I commented at the time that the approach of Mr Justice Lindsay, in dissenting, that one should look to the whole 'pair of boots' was the correct approach. If the employers had properly risk-assessed the claimant's duties, they would have identified that working at night in all seasons, collecting milk from farms, was likely to expose him not only to a risk of heavy items falling on his feet, but to adverse weather conditions for which protective footwear was necessary.



The House of Lords considered the case, which was the first involving the regulations to go before them. By a majority of three to two (Lords Hoffman, Walker and Nicholls; Lord Hope and Baroness Hale) they found for the employers (see [2004] Gazette, 5 August, 25).



It is my view that the decision is wrong. The Lords agreed that the boots, and not just the steel toe-caps, are protective equipment in the terms of the regulation. Regulation 7 says that personal protective equipment must be kept 'in good repair'. The majority of the Law Lords expressly agreed that a boot with a hole in is not in good repair. Therefore, it surely follows that there must be a breach of the absolute duty under regulation 7. If only life were so simple. The majority sought to limit the regulations to the specific risks that have been perceived to exist at the workplace; and the employer does not have a duty to do repairs and maintenance which has nothing to do with the equipment's function as personal protective equipment.


An anti-European approach to health and safety resonates faintly throughout the judgment of Lord Hoffman in particular.



It is the dissenting judges who produced a logical and common- sense approach to interpretation of the regulations.


Regulation 7(1) has wording that is general and unqualified. Lord Hope stated that the regulation could 'easily' have been drafted to include a limitation on its application to the risks identified in paragraph 6(2)(a). Baroness Hale indicated that she was 'not at all impressed' by the argument (of Lord Hoffman) that tries to deflect attention from the true effect of the regulations by suggesting that it must be read in to them that there is a restriction to injuries resulting from the specific risk (alone) that the employer supplies the personal protective equipment to prevent.


Lord Hope properly identified that there is a two-stage test in relation to the interpretation of regulation 4(3)(a) as to whether the personal protective equipment is 'suitable', namely: is it appropriate for the risk or risks involved, and is it appropriate for the conditions at the place where exposure to the risk may occur? He identified that the claimant 'would have to drive to farms in all weather conditions'.


Lords: curb on regulations Finally, and of crushing importance in my opinion, is Baroness Hale's bemusement at the illogicality of the majority's view that the claimant's employer should only be responsible for injuries resulting from personal protective equipment supplied for the risk that it identifies on risk assessment. She speculated that an employer who therefore identifies the wrong risks is arguably in a better position than an employer who identifies the right risks. A further extension of this is that the nonsensical position could arise whereby the employer who does a more thorough risk assessment is potentially putting himself in to a position of greater responsibility than one who fails to do so.


In brief, the view of the dissenters was that regulations 4(2), 4(3) and 7(1) are clear and do not merit such an arbitrary limitation.


Lord Hoffman gave the judgment with which the majority agreed. However, there are a number of flaws in the judgment, which to an extent can be demonstrated here.


Lord Hoffman referred to the claimant as being an ex-army man and fanatical about his boots, but not having noticed the hole. This is of no consequence. It is relevant to contributory negligence, which was not in issue.


Lord Hoffman found that injury from water/ice/snow attacking the claimant's feet was 'not a risk of employment'. Lord Hope referred to the claimant's job as 'to collect milk from farms and deliver it to the appropriate processing depot. The shift usually started at 3pm and he was required by the respondents to work all through the night and drive to farms in all weather conditions'.


Surely, some form of protective footwear was therefore necessary as there was a clear risk from weather conditions from working outside on farms at night in all seasons.


Lord Hoffman stated that the claimant was not expected to 'expose himself to severe weather conditions'. Why do the conditions have to be severe? Farms on winter nights are likely to be wet and/or icy and/or snowy. The limitation he seeks to impose is artificial.


Lord Hoffman cited a rather weak example of personal protective equipment being defective, but not creating a breach of duty. He suggested that ear-muffs provided as hearing protection through which music is played by the employer to make the life of the employees more pleasant, but which then break down would, if not repaired, on the claimant's argument result in a breach of the Personal Protective Equipment Regulations. The fact is that the failure to maintain the ear-muffs is not causative of any injury and, therefore, the example is pointless. However, if the ear-muffs had caused dermatitis of the employees' ears, then the regulations would apply. Baroness Hale cited a number of erudite examples along a similar theme.


In conclusion, the flaw in the majority's decision is that the Lords limit the application of the Personal Protective Equipment Regulations to risks to health identified by an employer on risk assessment. This is unnecessarily limiting and open to bizarre findings. The algebra of health and safety in the workplace fails once one limits the application of regulations to risks identified by an employer.


In brief, it appears that the majority has created an artless and unnecessary restriction of the interpretation of the regulations. This decision will leave lawyers frustrated and puzzled at a time when elements within the government and the senior judiciary are seeking to suggest that employers' liability cases can be subjected to protocols and 'fast-tracking' in an effort to limit the cost of insurance premiums.


The fact that five law Lords are split three to two in deciding whether a boot with a hole in it gives rise to a breach of the Personal Protective Equipment Regulations suggests otherwise.



By Simon Allen, Russell Jones & Walker, Sheffield