Barrister Robert Spicer looks at cases considering risk assessment, proportionality and the duty of care in relation to personal protective equipment.
The Personal Protective Equipment Regulations 1992 (PPE) require employers to provide PPE where it is identified as necessary to protect the health and safety of employees. PPE must be suitable for the hazards it is intended to protect against, be maintained in effective and proper working order, be replaced if lost or found to be defective and have designated storage accommodation. Employees must be trained in its use and given specified information and instructions.
A 2016 Scottish case has considered the application of the PPE Regulations to a police training demonstration.
Majid v Chief Constable of Scotland, Lothian Sheriff Court
The facts were that M, a police officer, claimed compensation for an eye injury suffered in the course of his employment. He was injured while assisting a colleague in demonstrating a headlock escape technique. He gave evidence that he had been holding the colleague in a loose headlock and while looking at the ground, the colleague held both of his hands in front of him before raising them upwards, contrary to proper technique, and his fingernail struck M in the eye.
The training co-ordinator gave evidence that a risk assessment had been in place which had covered the entire training course and not each manoeuvre individually. One of the measures used to control risk was a demonstration at slow to medium pace. The co-ordinator conceded that there was a risk of injury to the eye. He stated that the use of goggles would have increased the risk.
The decision of the court was as follows.
In demonstrating the manoeuvre, the colleague had been under a duty to take reasonable care for M’s safety. Specifically, the duty was to avoid striking M in the eye and not to carry out the manoeuvre at a speed which took M by surprise or gave him insufficient time to react. His actions had been negligent and this had caused the incident.
The colleague had carried out the manoeuvre at a pace which had given M insufficient time to react. He had not demonstrated the paradigm version of the technique and had used excessive force in that his hand had moved at such a speed M had been given insufficient time to either close his eyes or move his head. There was a danger that M would be struck in the eye.
A residual risk had existed, so that regulation 4 of the PPE Regulations had been engaged. It could not be said that the risk was so slight as to be de minimis or that the nature of the harm had been so trivial that it ought to be ignored. Regulation 4 states, in summary, that except where risks are adequately controlled by other means, employers must provide suitable PPE to employees who are exposed to those risks.
The training co-ordinator’s risk assessment was found to have been insufficient to comply with regulation 6 of the PPE Regulations. This states that, prior to selecting PPE, the employer must ensure that an assessment has been made to ascertain whether the proposed PPE is suitable. In selecting PPE, the assessment must consider:
risks to health and safety that have not been avoided by other methods
the performance and characteristics needed for the PPE to be effective
a comparison of the proposed PPE with the required performance and characteristics
the compatibility of different PPE items required to be worn simultaneously.
The co-ordinator’s approach to that assessment had wrongly involved an application of the common law test rather than the stringent requirements of regulations 4 and 6.
The provision of goggles would not have been effective to prevent injury without increasing overall risk. Providing goggles at a training session would not be appropriate, given the requirement for realism. It would be disproportionate to require them to be worn to guard against the possibility of a finger entering the eye. The claim under the 1992 Regulations failed.
The provision of gloves was not appropriate and would have been disproportionate, particularly as the PPE Regulations required equipment to be provided to the person who was likely to be injured rather than anyone else.
A quantum of £7000 compensation was agreed on the basis of common law negligence.
Injury in waste disposal
A similar recent case is the Court of Appeal decision in Threlfall v Hull City Council (2010).
T, an employee of H, was removing rubbish and debris left by tenants of houses. In the course of handling a bin bag full of rubbish, he suffered a serious cut to his finger. He was wearing standard issue cloth and suede gloves at the time of the incident, and did not know what had caused the injury. He claimed compensation from H on the basis that better quality gloves should have been supplied.
At first instance, the court found that the risk of injury from sharp objects was very low, despite there being a foreseeable risk that sharp objects would be encountered during the course of T’s work in clearing up debris. H had carried out a risk assessment dealing with garden clearance. That did not deal specifically with the risk of laceration. The standard issue gloves were not unsuitable and the claim failed. T appealed to the Court of Appeal.
The appeal was allowed on the following grounds.
The risk assessment had been manifestly defective.
The risk of laceration should have been dealt with specifically and the type of gloves required should have been assessed in the light of that specific risk.
Regulation 4 of PPE, which states in summary that employers are under a duty to provide suitable PPE to employees who may be exposed to a risk to their health and safety, applies wherever a residual risk of harm exists.
At the heart of the issue of suitability lies effectiveness. If the equipment did not prevent or adequately control the risk of injury, then it was unsuitable.
The risk of a laceration injury to employees was clearly more serious than minimal and the gloves were unsuitable within the meaning of the 1992 Regulations.
The manufacturer’s description of the gloves stated that they were suitable for minimal risks only.
As such there was no evidence to support the argument that the claimant failed to take reasonable care of his own safety and the cross-appeal as to contributory negligence was dismissed.