Ipsofactoj.com: International Cases [2005] Part 10 Case 2 [HL]


HOUSE OF LORDS

Coram

Fytche

- vs -

Wincanton Logistics Plc

LORD NICHOLLS OF BIRKENHEAD

LORD HOFFMANN

LORD HOPE OF CRAIGHEAD

LORD WALKER OF GESTINGTHORPE

BARONESS HALE OF RICHMOND

1 JULY 2004


Judgment

Lord Nicholls of Birkenhead

My Lords,

  1. I have had the advantage of reading in draft the speech of my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe. I agree with them. I add a brief word of my own solely because your Lordships are divided on this point of statutory interpretation. To my mind the crucial point in this case is that the existence of a very small and inconspicuous hole in one of Mr. Fytche's steel-capped boots did not constitute a breach of his employer's regulation 4 obligation to ensure he was provided with suitable personal protective equipment. The judge found that the boots were ordinarily satisfactory for Mr. Fytche's work. In other words, the boots were adequate for Mr. Fytche's ordinary conditions of work, tiny hole notwithstanding. That being so, the continuing existence of this hole was not a breach of the employer's regulation 7 obligation to maintain the boot in good repair. Regulation 7 should not be read as imposing, in this respect, a wider obligation than regulation 4. I would dismiss this appeal.

    Lord Hoffmann

    My Lords,

  2. On 19 December 1999 the weather in the south of England was exceptionally wintry. Heavy snow fell on the South Downs. A 32-ton milk tanker belonging to Wincanton Logistics Plc ("the company") got stuck on an icy country road. The company's standard instructions for such a case were for the driver to use the telephone in the cab to call for help and then wait to be rescued. But the driver Mr. Fytche was an experienced and self-reliant man who decided to dig himself out. He enlisted the help of a cowman from the dairy farm where he had come to collect the milk. They shovelled snow, spread grit and pulled with the farm tractor. After about three hours of spade work in sub-zero ice and snow, the tanker was freed and Mr. Fytche drove off.

  3. Unfortunately one of Mr. Fytche's boots leaked. Some water got in through a tiny hole next to the little toe. The boots were supplied by the company. They were made of leather and had steel toe caps to protect the toes in case something heavy like a milk churn should fall on them. But they were not meant to be waterproof or to be used outside in extreme weather conditions. Mr. Fytche, an ex-Army man, described himself as fanatical about the upkeep of his boots but had not noticed the hole. He had never had wet feet before.

  4. The effect of the penetration of water in freezing conditions was that Mr. Fytche suffered mild frost bite in his small toe. It kept him away from work for some months and his toe has a permanent sensitivity to cold.

  5. Mr. Fytche commenced proceedings against the company. He alleged that they had been negligent in failing to supply him with boots which were adequate to protect his feet in freezing conditions. The company said that Mr. Fytche's duties did not require him to walk about for long periods in snow and ice. The boots were adequate for his ordinary conditions of work. Mr. Fytche had no answer to this defence and at the trial the allegation of negligence was abandoned.

  6. Instead, Mr. Fytche advanced an alternative argument which was based upon the fact that the boots provided by the company had steel toecaps. That fact had absolutely nothing to do with the existence of the hole which let the water in. The caps were to protect his toes from impact injuries. But Mr. Fytche says that the toecaps made the boots "personal protective equipment" (PPE) for the purposes of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966). By regulation 7(1), an employer is under a duty to ensure that any PPE provided to his employees is "maintained .... in an efficient state, in efficient working order and in good repair." Mr. Fytche says that the existence of the hole meant that the boots were out of repair. Liability under the regulations is strict and the company is therefore liable for damage caused by the want of repair.

  7. Before even looking at the regulations, I am bound to say that this would be a very strange and arbitrary result. Mr. Fytche claims that because his boots were designed to protect him against a risk of his employment, his employers are liable in damages because they were inadequate to protect him against an injury which was not a risk of his employment. If there had been no risks from heavy objects and he had been issued with ordinary leather boots without steel toe caps, the boots would not have been PPE and the existence of the hole would not have given rise to any liability. I suppose that legislation can sometimes have these ricochet consequences but one usually expects a more rational scheme.

  8. The regulations were made to comply with the Personal Protective Equipment Directive of 30 November 1989 (89/656/EEC). It recited that compliance with "minimum requirements designed to guarantee greater health and safety for the user of personal protective equipment" was essential to ensure the safety and health of workers and that the intention was "the employer shall be required to provide safety equipment and take safety measures". The general rule, as stated in article 3, was that:

    personal protective equipment shall be used when the risks cannot be avoided or sufficiently limited by technical means of collective protection or by measures, methods or procedures of work organisation.

  9. The purpose of PPE is therefore, as a last resort after collective protection or methods of work organisation, to avoid or limit risks. What risks? Those which are perceived as existing at work. Article 5 requires employers to make an "analysis and assessment" of risks which cannot be avoided by other means and then to define the characteristics which the PPE must have in order to be effective against those risks. Article 4 spells this out a bit further: PPE must be "appropriate for the risks involved", not create its own risks, "correspond to existing conditions at the workplace", fit the wearer and so on. Article 6 says that Member States shall establish general rules for the use of PPE, indicating in particular "the circumstances or the risk situation in which .... the use of personal protective equipment is necessary." Article 7 requires that workers be informed about these matters. So the whole scheme of the Directive is to require PPE to be used to guard against specific risks which have been perceived to exist at the work place and which cannot be prevented or sufficiently reduced in other ways.

  10. One next looks at the regulations to see how these principles have been given effect in English law. The regulations follow the general scheme of the directive and often repeat its language. There is the same requirement for an assessment of workplace risks and the choice of appropriate equipment. But there are differences in the drafting. For example, the definition of "personal protective equipment" is not quite the same as that used in the Directive. Regulation 2(1) defines PPE as:

    all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety ....

  11. I have underlined the last 14 words to emphasise that there are two limbs to the definition:

    • first, what is intended to be done with the equipment and

    • secondly, what it actually does.

    The second limb is a functional definition. PPE does not come with a certificate or label saying "This is PPE". It is PPE if it protects the wearer or holder against risk. If does not protect, it is not PPE. Thus the idea of a risk against which one is protected is built into the concept of PPE under the UK regulations.

  12. There are, however, a variety of forms of equipment which may protect one against a given risk and not all of them are sensible ways of dealing with the matter. Regulation 4(1) therefore imposes an obligation to supply employees who "may be exposed to a risk to their health or safety while at work" not merely with PPE satisfying the basic definition but with "suitable" PPE. And paragraph (3) gives some guidance on what counts as suitable equipment, or at any rate, what would not be suitable equipment. It says that without prejudice to the general notion of suitability, PPE shall not be suitable unless:

    (a)

    it is appropriate for the risk or risks involved and the conditions at the place where exposure to the risk may occur;

    (b)

    it takes account of ergonomic requirements and the state of health of the person or persons who may wear it;

    (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 is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk.

  13. This list, with some rearrangement, reflects the independent requirements of article 4.1 of the Directive, which the UK regulations bring under the heading of suitability. In some cases, the items serve to spell out what would in any event have been signified by the word "suitable", such as being appropriate for the risk and the conditions at the workplace. Some items are directed to ensuring that PPE does not have characteristics which make employees less likely to wear it: it must not be the wrong size or fail to take account of ergonomic requirements and the state of health of the wearer. And there is also concern that the equipment shall not itself create risks which did not exist before. Here some compromise may be needed between total security against the primary risk and avoiding the creation of secondary risks. And of course there is some overlap in these objectives: failing to consider ergonomic requirements may both discourage use and create secondary risks.

  14. All these tests of suitability are related to the basic function of PPE, which is protection against risk. An employer may be in breach of his obligation to provide suitable PPE either because it does not in fact protect against the risk and therefore is not suitable, or because, for one or other of the reasons set out in regulation 4(3) or by virtue of the general concept of suitability, it is not suitable for the purpose of protecting against that risk.

  15. Mr. Fytche was provided with steel toecaps on his boots because his employers considered that there was a sufficient risk of heavy things falling on his feet. The boots were therefore PPE and there is nothing to suggest that they failed any of the tests of suitability. They fitted, were appropriate for conditions in milk parlours and so on. Nor did the hole in one of the boots create a secondary risk or increase overall risk. The secondary risk or overall risk must be a risk in the course of employment. As Mr. Fytche was not expected to do anything which required him to have waterproof boots, the hole created no such risk. If, as my noble and learned friend Baroness Hale of Richmond suggests, there had been a weather risk against which the boots should have protected Mr. Fytche, then of course he would have been able to recover. PPE includes "clothing affording protection against the weather." But Mr. Fytche does not suggest that he should have been given PPE to protect him against the weather. He was not expected to expose himself to severe weather conditions and for ordinary purposes the boots were adequate. His case depends entirely on the irrelevant fact that he needed boots with steel toecaps.

  16. Assuming, therefore, that the hole was present when Mr. Fytche was issued with his boots, there was in my opinion no breach of regulation 4. And Mr. Birts QC, who appeared for Mr. Fytche, did not argue that there was. He took his stand on regulation 7:

    (1)

    Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.

  17. Mr. Birts says that even though the boots complied with regulation 4 and indeed because they complied with regulation 4, they were PPE. Therefore the employees were under a duty to maintain them in good repair and a boot which has developed a hole, however small, is not in good repair.

  18. In my opinion, however, "efficient state, in efficient working order and in good repair" is not an absolute concept but must be construed in relation to what makes the equipment PPE. What counts as being in an efficient state? Efficient for what purpose? In my opinion, for the purpose of protecting against the relevant risk. Regulation 7 extends in time the duty to provide suitable PPE under regulation 4. By virtue of regulation 7, it is not enough just to provide it and then leave the employee to his own devices. The employer has a duty to maintain it so that it continues to be suitable PPE. But he does not have a duty to do repairs and maintenance which have nothing to do with its function as PPE.

  19. Assume, for example, a noisy workshop. The risk of injury to the hearing of employees can be suitably reduced by ear muffs which leave them in comparative silence. But the employer provides muffs with radio equipment so that employees who so wish can also listen to music. The radio receivers are delicate and several break down, so that after a while the employer stops repairing them and leaves the employees in silence. Does he commit an offence under the regulations because he has failed to keep PPE in good repair? In my opinion this would be absurd. Regulation 7 cannot, by means of the repairing obligation, require the employer to provide equipment which he need not have provided in the first place. Of course if the equipment had actually created its own risk, as in the example of ear-splitting surges suggested by my noble and learned friend Baroness Hale of Richmond, that would be an entirely different matter.

  20. For these reasons, regulation 7 in my opinion takes the matter no further than regulation 4. It was submitted that there ought to be a general duty to keep PPE in repair in every respect because the employee was obliged by law to wear it. He could not say that he would rather wear better quality boots of his own. But in my opinion this is equally true in many cases in which employees are obliged under their contracts of employment to wear uniforms or equipment which is not PPE. It does not justify the imposition of a strict liability which exists for an altogether different purpose. As Waller LJ said in the Court of Appeal [2003] ICR 1582,1589 the compulsory element is taken into account in the standard of care which the employer must observe to comply with his duty of care to the employees. But, even taking this into account, Mr. Fytche recognised at the trial that he could not succeed in proving a breach of the duty of care. I would therefore dismiss the appeal.

    Lord Hope of Craighead

    My Lords,

  21. The appellant was employed by the respondents as a lorry driver. His job was to collect milk from farms and deliver it to the appropriate processing depot. His shift usually started at 3 pm, and he was required by the respondents to work all through the night and to drive to farms in all weather conditions: see the agreed statement of facts and issues, para 1. The incident which gave rise to his injury occurred at about 8.30 pm on 19 December 1999 when he was due to pick up milk from a farm at Slindon on the edge of the South Downs near Chichester. It had been snowing, and it was very cold. He approached the farm but found that the access to it was blocked. He decided to abandon the attempt, but his lorry became stuck. He had to spend about three hours walking on ice and snow before he secured its release. His right foot felt numb for a while when he resumed his journey. After a while it warmed up and he was not aware that anything was wrong. But some days later he began to have problems with his right little toe. It became infected, and he had to have it examined in hospital. It was found that the tissues of the toe had been damaged, and part of it had to be removed.

  22. The respondents provided the appellant with a uniform which he was required to wear when he was at work. The uniform included a pair of steel capped safety boots. These boots were "personal protective equipment" within the meaning of regulation 2(1) of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) ("the 1992 Regulations"). So the appellant had no choice but to wear them when he was working. This is because regulation 10(2) provides that every employee shall use any personal protective equipment provided to him by virtue of the regulations in accordance with any training in its use and the instructions respecting its use which have been given to him. Section 33(1)(c) of the Health and Safety at Work etc Act 1974 provides that it is an offence for any person to act in breach of regulations made, as these regulations were, under section 15 of that Act.

  23. The boots were designed to protect the appellant's feet from the risk of crushing injuries to his feet and toes or contact with hard or sharp objects. But the injury to the appellant's right little toe was not due to any defect in the boot's steel toecap. It was the result of frostbite. This was due to the fact that there was a small hole in the boot at the point where the steel toe cap met the sole of the boot. The hole was adjacent to the appellant's right little toe. It was so small that the appellant was not aware of it until after the incident. It could not reasonably have been discovered by the respondents. Nevertheless it was sufficiently large to allow water to enter the boot and, because of the conditions in which he was working that evening, to cause the toe to sustain frostbite.

    THE ISSUES

  24. Regulation 7(1) of the 1992 Regulations provides:

    Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.

    The boot had a hole in it. So the ordinary use of language tells us that it was not in good repair. It is accepted that the regulation creates an absolute and continuing obligation. But were the respondents in breach of it?

  25. The answer to this question depends on whether the defect in the boot was within the scope of the regulation. Mr. Dingemans QC for the respondents submitted that it was not. He said that a safety boot is maintained in an efficient state, in efficient working order and in good repair if it has been maintained so that it still protects the employee against the risks in respect of which it is supplied. If it is, there is no breach of the regulation even if in some other respect it is not in good repair.

  26. There is nothing new in the idea that employers must provide personal protective equipment to employees who may be exposed to a risk to their health and safety. Many regulations of this kind were made under various provisions of the Mines and Quarries Act 1954 and the Factories Act 1961, for example, before the making of the Directive. They covered a host of different situations, and they varied widely in their layout and their terminology. The 1992 Regulations replaced this legislation with a new set of provisions which, subject to the exceptions listed in regulation 3(3), were intended to be of general application. So this case is not just a case about a small hole in a safety boot. It raises an important question which is of general interest to all employers and employees in cases where personal protective equipment is provided.

    THE CONTEXT

  27. Regulation 7(1) must, of course, be read in its context. So it is necessary to look at the provisions in the 1992 Regulations which define the circumstances in which personal protective equipment must be provided and the steps which the employer must take before he provides the equipment to his employee. The 1992 Regulations gave effect to Council Directive 89/656/EEC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace. Its guiding principle is the prevention of risks to health or safety in the workplace. Article 2 defines "personal protective equipment" by reference to the hazards that are likely to endanger the employee's health and safety. Article 4 provides that personal protective equipment must be appropriate to the risks involved. The 1992 Regulations give effect to these and all the other relevant parts of the Directive. They meet its minimum requirements. How much further their requirements go must be determined by examining the terms of the Regulations.

  28. The primary obligation which rests on the employer is set out in regulation 4(1). It provides that 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. Regulation 4(2) imposes an equivalent general obligation on every self-employed person. The meaning which is to be given to the word "suitable" is explained in regulation 4(3), which provides, inter alia:

    Without prejudice to the generality of paragraphs (1) and (2), 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 the risk may occur; ....

  29. The question whether the personal protective equipment is "suitable" within the meaning of regulation 4(3) is to be determined by reference to the risk or risks which have made it necessary for the equipment to be provided. But that is not the only criterion. The employer must also ensure that the equipment is appropriate for the conditions at the place where exposure to the risk may occur. If it is not the equipment will not be "suitable" within the meaning of the regulations.

  30. The reference in regulation 4(3)(a) to the conditions at the place where exposure to the risk may occur casts important light on the scope which is to be given to the maintenance obligation in regulation 7(1). The personal protective equipment must be maintained in an efficient state, in efficient working order and in good repair. One test of whether it is being maintained in an "efficient" state or working order and in "good repair" is whether it is still capable of protecting the employee against exposure to the risk or risks involved - that is to say, the risk or risks which made it necessary for the equipment to be provided in the first place. It is obvious that it must satisfy this test if it is to continue to protect the employee against them.

  31. But that is not the only test which has to be satisfied if the equipment is to continue to be suitable. It has also to be maintained in a state which is appropriate for the conditions at the place where exposure to the risk may occur. Unless that requirement also is met the equipment will have ceased to satisfy one of the criteria that regulation 4(3)(a) says must be used to determine its suitability. One would expect the maintenance obligation in regulation 7(1) to extend to this requirement too, unless one is told otherwise.

  32. The primary obligation, as I have described it, in regulation 4 is reinforced by a second obligation in regulation 6. Regulation 6(1) requires the employer to make an assessment of the equipment in order to determine whether it is suitable. What this assessment involves is explained by regulation 6(2), which provides:

    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.

  33. The reference in regulation 6(2)(b) to any risks which the equipment may itself create casts further light on the scope of the obligation in regulation 7(1). Here too there is an indication that the obligation in regulation 7(1) is not limited to maintaining the equipment in an efficient state or working order to protect the employee against the risk or risks involved - those that cannot be avoided by other means, as indicated in sub-paragraph (2)(a). Account must also be taken in the initial selection of the equipment of any risks which the equipment may itself create. Here again one would expect the maintenance obligation in regulation 7(1) to extend to this requirement too, unless one is told otherwise.

  34. The risks which the equipment may itself create may be inherent in its nature or characteristics, assuming that it is free from defects. But risks may also be created by defects in the equipment which is available. A loose strap on a piece of protective clothing, for example, may give rise to the risk of tripping. Scratches on goggles may impair the employee's ability to see where he is going. Leaks in the equipment may allow dust or water to penetrate and become trapped between it and the employee's body and affect his skin. It is obvious that one of the characteristics that the equipment must have, if it is not itself to create risks, is that it is free from defects of that kind. The assessment which the employer must carry out under regulation 6 before choosing any personal protective equipment in order to determine whether it is suitable must extend to ensuring that the equipment which is provided by virtue of regulation 4(1) is free from defects that may create risks.

  35. Regulation 7(1) states that the employer shall ensure that any personal protective equipment provided to his employees is maintained in good repair. The context indicates that this includes ensuring that it is kept free from defects that may create risks to health or safety at the place where the exposure to the risks for the protection against which it was provided may occur, as well as those that may affect its ability to protect the employee from those risks.

  36. Regulation 11 provides that every employee who has been provided with personal protective equipment by virtue of regulation 4(1) must report to the employer any obvious defect in that personal equipment. This obligation is expressed in terms that are quite general. It is not limited to defects which may affect the ability of the equipment to protect the employee from the risks for the protection against which it was provided. It extends to any obvious defects. This regulation too casts light on the scope which is to be given to regulation 7(1), which is the only regulation which tells the employer what he must do to maintain the equipment.

  37. The obligation in regulation 7(1) is to maintain the equipment in good repair. It is plain that it extends to making good defects that have been reported by the employee. But its terms too are general and unqualified. It is not limited to the making good of obvious defects. I would hold that it includes keeping the equipment free from defects which may create risks to health or safety, as well as those which may impair its ability to protect the employee against the risks for the protection against which it was provided. The employer's obligation is an absolute and continuing obligation. It goes beyond a duty to take care to achieve this result. How the employer does what the regulation tells him to do is his concern, not that of the employee. It is not for the employee to say how the defect could have been prevented.

    FURTHER CONSIDERATIONS

  38. Different views have been expressed throughout this case about the meaning and effect of regulation 7(1). The Court of Appeal were not able to arrive at a unanimous view on this point, nor has this been found to be possible by your Lordships. This indicates that it is not entirely free from ambiguity. It is proper then to ask what are the consequences of the two competing interpretations in order to decide which of them is preferable.

  39. If the respondents are right, there is an absolute obligation on the employer under regulation 7(1) to keep the equipment free from defects that may impair its efficiency as protection against the risks for the protection against which is was provided. But the obligation to keep the equipment free of other defects which may cause the employee to sustain injury at the place where he is exposed to those risks, such as the hole in the boot which caused the appellant's injury, is left to the common law. It is not suggested, of course, that there is no obligation to deal with any defects which may occur in the equipment. But it is said that the absolute obligation does not extend to other defects which the employer did not know about and of whose existence he could not have known about if he was taking reasonable care. On this view, the risk of injury due to defects of that kind rests not with the employer but with the employee.

  40. I would have expected some words of limitation or qualification to have been written into regulation 7(1) if the intention was that its scope should be limited in this awkward and rather untidy way. This would have been easy to do. All that was needed was the addition of a few words to make it clear that the obligation was to ensure that the personal protective equipment continues to be effective against the risk or risks referred to in paragraph 6(2)(a). The absence of those words indicates that the regulation is subject to no such limitation. This is because, if the scope of the regulation is limited, the question whether or not the obligation applies will depend on the facts of each case. Some defects will be subject to the obligation to repair and some will not.

  41. This case, it may be said, is quite straightforward as the hole on the boot did not in any way impair the efficiency of the steel toe cap. But other cases may not be so clear. A consequence of this lack of clarity is likely to be a lessening of the degree of protection which the regulations afford to the employee. The protection for the employee is lessened if the burden of proving that there was some particular step that the employer should have taken rests on him.

  42. But there is another consideration. The regulations leave all the choices about the provision of personal protective equipment, and how it is to be used and kept, to the employer. If he is provided with this equipment, the employee must wear or use that equipment according to the instructions which he is given. The regulations leave him no choice in the matter. He cannot substitute clothing or other equipment of his own choosing. The same result could, not doubt, have been achieved by contract. But the employee is not free to bargain with his employer about the terms on which he is to be required to wear or use personal protective equipment. The whole matter is predetermined for him by the regulations and by the choices which the employer has made under them.

  43. It does not seem unreasonable in these circumstances for the employer to be under an absolute obligation to maintain the personal protective equipment in a state of good repair so that it is appropriate to the conditions where the employee has to work and does not create any other risks to his health or safety.

    CONCLUSION

  44. I consider that the respondents' absolute obligation to keep the appellant's boot in good repair extended to keeping it free from defects which exposed him to risks at the places where he had to work, such as the hole which caused his injury, as well as defects which exposed him to the risk or risks against which the boot was designed to provide protection.

  45. For these reasons, and those in the speech of my noble and learned friend Baroness Hale of Richmond with which I am in full agreement, I would allow the appeal and give judgment in the appellant's favour in the agreed sum of 12,000.

    Lord Walker of Gestingthorpe

    My Lords,

  46. The facts relevant to this appeal are set out in the speech of my noble and learned friend Lord Hoffmann, which I have had the advantage of reading in draft. I agree that this appeal should be dismissed for the reasons given by Lord Hoffmann. But since I have reached that conclusion with rather more hesitation, and in view of the division of opinion in the House, I will add some brief comments of my own.

  47. This appeal turns ultimately on the correct interpretation of regulation 7 of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) ("the Regulations"). The Regulations represent the transposition into domestic law of a small part of complex and far-reaching European legislation relating to health, safety and welfare at work. It is not necessary to describe the panoply of Council Directives beyond noting that the identification and assessment of risk is one fundamental principle underlying the legislation. Another fundamental principle (reflected in the preamble to and in article 3 of the Personal Protective Equipment Directive of 30 November 1989 (89/656/EEC) ("the Directive") is that where possible risk should be avoided (by organisational measures) rather than reduced (by protective measures), and that means of collective protection are to be preferred to means of individual protection (such as personal protective equipment).

  48. These principles have some bearing on the right approach to the interpretation of regulation 7. They do serve as a reminder that the Regulations are only a part, and a small part, of the larger legal picture and of the statutory and common law duties which the respondent employer owed to the appellant, Mr. Fytche, as its employee. The general principles also add weight to the submission of Mr. Dingemans QC for the respondent (concurred in by Mr. Birts QC for the appellant) that in understanding the general scheme of the Regulations the best approach is not to read them straight through, from beginning to end. The important landmarks (or "hoops" for the employer, as Mr. Dingemans put it) are, first, regulation 6; second, regulations 4 and 9; and third, regulation 7.

  49. Regulation 6 is headed "Assessment of personal protective equipment" and it requires an assessment of whether the personal protective equipment which an employer proposes to provide is "suitable". The question whether the equipment is suitable is to be determined (in part) by the provisions of regulation 4(3), which largely reproduces article 4(1) of the Directive; this adds a minor detour to an orderly progress through the three hoops. But an important (and logically anterior) part of the assessment is "an assessment of any risk or risks to health or safety which have not been avoided by other means" (regulation 6(2)(a)).

  50. Regulations 4 and 9 are concerned with the actual provision of suitable personal protective equipment and the instruction of the employee in its purpose, practical use and maintenance. Both these regulations contain prominent references to the risks which the equipment is intended to protect against: see regulations 4(3)(a) and 9(1)(a). The primary and evident purpose of the requirement that the equipment should be "suitable" is that it should protect the employee who is wearing it (or using it) against the risk identified at the assessment stage.

  51. Then comes regulation 7(1), which is in the following terms:

    Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.

    This provision, supplemented by parts of regulations 8, 10 and 11, gives effect to article 4(6) of the Directive. It does so in language (".... is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair") which can be traced back at least as far as the Factories Act 1937, sections 22(1) and 152(1), considered by the House in Galashiels Gas Company Ltd v O'Donnell [1949] AC 275. This language does not expressly refer to maintaining the equipment in such a way that it remains "suitable" within the meaning of regulation 4. Nor does it expressly restrict the maintenance obligation to ensuring that the equipment remains suitable in that sense (that is as a means of avoiding or reducing the identified risks, whether or not the equipment is in other respects wholly satisfactory). The appellant does therefore derive some support from a literal interpretation of regulation 7, since a pair of boots with a hole (however small and inconspicuous) which lets in water can hardly be described as being in good repair.

  52. In order to succeed the respondent must therefore establish a contextual restriction on the wide natural meaning of regulation 7(1). It might be thought undesirable for the House to adopt a restrictive interpretation of a provision concerned with health and safety at work. But (as already noted) the Regulations are only a small part of the complex of statutory provisions concerned with health and safety at work (and at trial the appellant relied, unsuccessfully, on other statutory provisions and on alleged breaches of common law duties). Regulation 7(1) imposes an absolute duty (that is common ground) and its breach is attended by criminal sanctions. If the scheme and context of the Regulations strongly suggests that a restricted meaning is appropriate, it should not be rejected merely because health and safety are in issue.

  53. In my opinion there are strong contextual arguments for a restricted reading. The clear underlying purpose of the Regulations as a whole is to ensure the provision of personal protective equipment as a last line of protection against risks which are identified and assessed as not being avoidable (or controllable) by other means. Regulation 4(1) imposes an absolute duty to ensure the provision of "suitable" equipment. Regulation 7(1) imposes an absolute duty to ensure the maintenance of that equipment. It would be an extraordinary result if the employer could discharge his duty under regulation 4(1) by providing a pair of boots with proper steel toecaps, even though the boots were not completely watertight, but could not discharge his duty under regulation 7(1) by maintaining the boots in exactly the same condition. That anomaly is particularly striking in this case since it was never established whether or not the tiny hole in the right boot was present when the boots were first provided to the appellant. I would add that (in common, I think, with the whole House) I regard the personal protective equipment in question in this case as being a pair of boots with steel toecaps, and not just a pair of steel toecaps notionally filleted out of the boots.

  54. One argument against the conclusion reached by the Court of Appeal is that an employee is obliged to wear personal protective equipment supplied to him, and that it seems unfair if he is obliged by his employer to wear a pair of boots which are defective in that one boot is not watertight (although this fact was, for six months, unknown to either side). But in my view Waller LJ met this point when (after referring to the need to establish a breach of the common law duty of care) he observed [2003] ICR 1582, 1589, para. 21,

    I stress the standard of care will be a high one. Where the employer is asking the employee to wear particular footwear or clothing in place of the employee's own, I would suggest that rightly the court would impose a high duty on an employer. But in the circumstances of this case the tiny hole was undiscoverable either by the employers or the claimant and the findings of the recorder negatived any such breach.

  55. Another argument (which weighed heavily with Lindsay J in his dissenting judgment in the Court of Appeal) is that a purposive construction of the Regulations may lead to uncertainties and prolonged and expensive litigation, whereas with an unrestricted absolute duty under regulation 7 (p 1591, para 31):

    .... litigation would accordingly be simplified, be inexpensive and be comparatively speedy.

    This concern merits respectful attention but I do not foresee serious difficulties in recognising the risks in respect of which personal protective equipment is supplied. The whole business of providing the equipment is (as already noted) concerned with the identification and assessment of risks. In any properly run business the risks will be fully documented (probably by reference to official publications) in a form which can be explained (and must be clearly explained - see regulation 9(1)(a) and (2)) to the employees affected by the risks. The inquiries which Lindsay J refers to (p 1591, para 35) should therefore be unnecessary, since the answers should already be on file.

  56. For these reasons, and for the fuller reasons given by Lord Hoffmann, I would dismiss this appeal. It is most unfortunate that the appellant should have suffered a painful injury in trying to do his duty, and perhaps going even beyond the call of duty, in the course of his employment. But the Court of Appeal was in my view right to hold that the respondent was not under a legal liability in respect of the appellant's injury.

    Baroness Hale of Richmond

    My Lords,

  57. The Personal Protective Equipment at Work Regulations 1992 were part of the 'six pack' of regulations, made under section 15 of the Health and Safety at Work etc Act 1974 in response to the EU's Framework Directive (89/391/EEC) on the introduction of measures to encourage improvements in the safety and health of workers at work, and its six 'daughter' directives, including the Personal Protective Equipment Directive (89/656/EEC). The object of the 1974 Act was 'to make further provision for securing the health, safety and welfare of persons at work ....' The object of the Framework Directive was to adopt 'minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers'. The overall aim, therefore, was to improve the protection of employees' health and safety.

  58. Not surprisingly, the overall strategy was that prevention is better than cure. The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (replacing the 1992 regulations initially made to implement the Framework Directive) (the 'Management Regulations') require every employer to 'make a suitable and sufficient assessment of .... the risks to the health and safety of his employees to which they are exposed whilst they are at work for the purpose of identifying the measures he needs to take to comply with' his obligations under the 1974 Act and any health and safety regulations: see reg 3. Other regulations then lay down the specific measure he needs to take. These are referred to in the Management Regulations as 'preventive and protective measures'. When he implements any preventive and protective measures the employer must comply with the general principles of prevention (set out in Schedule 1), which include avoiding risks, combating risks at source, giving collective protective measures priority over individual protective measures, but also adapting the work to the individual.

  59. Prevention may be better than cure but it is not the whole story. There is also enforcement and compensation. The Directives are not specific about enforcement or about compensation for the individual worker if he is injured. These are fitted into the existing framework of national law, mainly deriving from the 1974 Act. This set up the Health and Safety Executive and the Health and Safety Commission with wide powers to develop, encourage and ultimately enforce the legal requirements. It is a criminal offence to contravene any health and safety regulations: section 33(1)(c). In addition, breach of a duty imposed by health and safety regulations is, so far as it causes damage, actionable except insofar as the regulations provide otherwise: section 47(2). 'Damage' includes the death of or injury to, any person (including any disease and any impairment of a person's physical or mental condition): section 47(6).

  60. Many of the duties imposed by the regulations are strict in the sense that they may be broken without any negligence or other fault. We have long been used to this. Indeed, the normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language: see, for example, John Summers & Sons Ltd v Frost [1955] AC 740, per Viscount Simonds at 751.

  61. We have also long been used to the co-existence of the employer's liability for breach of his common law duty of care towards his workers with his liability for breach of the stricter and more detailed obligations laid down by the statutory provisions protecting workers. Since the landmark decision in Groves v Lord Wimborne [1898] 2 QB 402 it has been accepted that legislation protecting safety in the workplace gives rise to an action for breach of statutory duty and the same was generally true for provisions protecting health. Indeed, because of certain well-known defects in the law of negligence until the decision in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the action for breach of statutory duty was often the only one available to an injured worker. It is not surprising that a more relaxed and purposive construction was given to provisions designed for the worker's protection even if they also created criminal offences, usually minor and rarely prosecuted. But there is nothing in the 1974 Act or the Framework Directive to suggest a change in that approach: quite the reverse.

  62. The position as to civil liability has now been put beyond doubt by section 47(2) of the 1974 Act. The major regulations are the product of the various Directives. But it would be surprising if either of these were intended to introduce a stricter approach to the construction of regulations intended to protect the health and safety of people at work. There is nothing irrational in a legislative scheme which

    1. requires an employer to provide protective clothing in certain circumstances,

    2. requires the employee to wear it, and

    3. compensates the employee who is injured as a result of a defect in that clothing.

    The reason why the employee was provided with the clothing in the first place is a separate matter from the content of the duty. The legislation might decide to limit the employer's duty by reference to that reason or it might not.

  63. It is against that background that I turn to the regulations themselves. It is accepted that this worker was provided with personal protective equipment by virtue of the regulations. Personal protective equipment is defined as 'all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety, and any addition or accessory designed to meet that objective': reg 2(1). It is now accepted on both sides that in this case the 'personal protective equipment' was the whole boot, not just the steel toe cap. This makes sense. The toe caps cannot be used at all, let alone provide efficient protection, unless they are attached to suitable footwear.

  64. Having been provided with this equipment by virtue of the regulations, the employee has to use it in accordance both with any training and with any instructions with which he has been provided: reg 10(2). He also has to report any loss or obvious defect in that personal protective equipment: reg 11. This is consistent with the employee's own duty to co-operate in the preventive endeavour. It would seem odd if the employee were not under a duty to report obvious defects of any sort, but rather had to work out for himself why he had been provided with the boot and whether the defect in question impaired its efficiency in that respect. As far as the workman is concerned, he has been provided with a boot which he is required to wear and it makes sense to tell his employer of anything wrong with it, at least if this might cause him injury.

  65. Having provided the boots, 'every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair': reg 7. This refers to 'any' personal protective equipment. It means the whole boot, not just the toe cap. It has to be kept 'in good repair'. I agree with my noble and learned friend Lord Walker of Gestingthorpe that a boot with a hole in it is not in good repair. It is defective. On the face of it, the regulation has been broken.

  66. For the reasons given above, I find that neither surprising nor illogical. Am I nonetheless compelled to read into the regulation words that are not there in order to limit the employer's liability for injuries caused by a defective boot to injuries resulting from the reason why the employer decided to supply the boot?

  67. I am not at all impressed by the argument that I should do so because the Directive and regulations put prevention before cure and collective before individual prevention. We are talking about a case in which injury has occurred because something supplied with the purpose of protecting the individual has turned out to be defective. To that extent, prevention has not worked. It may be the first resort but it is not the last.

  68. Nor am I impressed by the argument that the whole obligation to provide this equipment assumes that the employer has conducted an assessment of risk. That is true. But it does not mean that the extent of his liability under these regulations should be limited by the results of his own risk assessment. There is no civil liability for breach of the general obligation to assess risks: see the Management Regulations, reg 22. The employer may or may not have assessed the risks properly. He may or may not have identified the right risks. It would be odd indeed if an employer who had identified the wrong risks should be in a better position than an employer who had identified the right ones. As Lindsey J pointed out in the Court of Appeal, another employer might well have identified a risk of prolonged exposure to inclement weather and muddy, snowy or icy farmyards and roads, against which waterproof boots should be provided. On the construction argued by the respondents, that employer would be liable but they are not.

  69. Nor do I consider that there is any necessary anomaly or inconsistency between this interpretation of regulation 7 and the obligation in regulation 4 to ensure that 'suitable' personal protective equipment is provided. Although one element, perhaps the main element, in suitability is its efficiency to protect against the risks against which special protection is required, there is nothing in regulation 4 to suggest that this is the only criterion. Indeed, as pointed out by my noble and learned friend, Lord Hope of Craighead, other criteria are expressly included in regulations 4 and 6 themselves. The boot has to be suitable overall, not just in relation to the identified risk. A boot provided to a driver which impairs his ability to drive safely is not suitable. If this hole had been the result of attaching the toecap to the leather (as to which we have no evidence), the boot would not have been suitable. A safety helmet with a chinstrap which causes dermatitis is not suitable. There is no reason why suitability should not include being in good repair generally. Earmuffs with a sound system which is defective so that a sudden surge in volume perforates the wearers' eardrums are not suitable. A boot with a hole, however small, which lets in water is not in good repair.

  70. The issue in this case, as identified by my noble and learned friend Lord Nicholls of Birkenhead in the course of the argument, is who should bear the risk that the boots supplied for a particular reason turn out to have an incidental defect which causes the employee injury while he is at work. I have no difficulty with the conclusion that the employer rather than the employee should bear that risk. There are good policy reasons for imposing strict liability on employers for many of the injuries which their employees suffer at work. The overall object of the legislation is to protect the health and safety of workers: if this fails and they suffer injury, strict liability means that they are compensated for that injury without the need for slow and costly litigation such as this. I appreciate that we have not yet reached the point where there is strict liability for every injury suffered by a worker in the course of his employment, but I see no need to bring in limitations which are not in the statutory language and could, as illustrated above, lead to some very surprising conclusions. I venture to suggest that a non-lawyer would find it odd indeed that Mr. Fytche would have recovered damages if his employer had also thought the boots should protect against a weather risk but does not do so because his employer had a different risk in mind.

  71. In agreement with my noble and learned friend, Lord Hope of Craighead, I would allow this appeal.


Cases

Galashiels Gas Company Ltd v O'Donnell [1949] AC 275; John Summers & Sons Ltd v Frost [1955] AC 740; Groves v Lord Wimborne [1898] 2 QB 402; Wilsons & Clyde Coal Co Ltd v English [1938] AC 57

Legislations

Personal Protective Equipment at Work Regulations 1992: Reg.2, Reg.4, Reg.6, Reg.7, Reg.9, Reg.10, Reg.11

Health and Safety at Work etc Act 1974: s.15, s.33

Personal Protective Equipment Directive of 30 November 1989 (89/656/EEC): Art.2, Art.3, Art.4, Art.5, Art.7

Representations

Birts QC for appellant

Dingemans QC for respondents


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