Gerrard v Staffordshire Potteries Ltd

Under the Protection of Eyes Regulations 1974, a process involving pressure-fed spraying falls within the eye-protection requirements where there is a reasonably foreseeable risk of eye injury. The expression particles or fragments thrown off is not confined to material originally forming part of the workpiece. A small risk may still be reasonably foreseeable, despite the absence of previous significant injury, unless a reasonable person could disregard it because the effort or expense of precaution would be disproportionate. Once the threshold is met, the duty to provide eye protection is absolute. The appeal was allowed and the claim was remitted for assessment of damages.

An employee suffered serious eye injury when compressed air used to glaze the inside of a coffee jar displaced a small foreign body into her eye. The County Court at Stafford, on 25 June 1993, dismissed her claim, which included alleged breaches of the Factories Act 1961, the Pottery (Health and Welfare) Special Regulations 1950 and the Protection of Eyes Regulations 1974. On appeal, the central issue was whether the glazing process involved a reasonably foreseeable risk of eye injury under Regulation 27, notwithstanding the low probability of such an accident and the absence of prior significant eye injury.

The Court of Appeal, comprising Lord Justice Kennedy and Mrs Justice Hale, allowed the appeal. The matter was remitted to the County Court for assessment of damages.

1. Scope of the eye-protection regulations. Regulation 3(1) of the Protection of Eyes Regulations 1974 brought the factory within the Regulations. Regulation 27 was not confined to particles originally forming part of the workpiece. It covered particles or foreign bodies dislodged by the worker’s operation, while distinguishing material dislodged by another worker or originating elsewhere in the factory. The court treated the words particles or fragments thrown off as sufficiently broad to cover the foreign body in the jar.
2. Reasonably foreseeable risk. The absence of previous significant eye injury and the small chance of the particle striking the eye did not exclude foreseeability. Applying the approach in Bolton v Stone [1951] AC 850 and Overseas Tankship (UK) v Miller Steamship [1967] AC 617, a small risk remains within the foreseeable range unless a reasonable person has a valid reason to disregard it, such as disproportionate effort or expense. The court also relied on Hughes v Lord Advocate [1963] AC 837: the precise sequence of events need not be foreseen if the type or kind of occurrence is foreseeable. Viewed in the round, the worker’s proximity to the jar, the haze produced by the gun, the open jars standing in factory premises and the absence of an intermediate inspection made the risk reasonably foreseeable.
3. Statutory consequence. Once the Regulation 27 threshold was met, Regulation 5 imposed an absolute duty to provide eye protectors or a shield. It was not suggested that the injury would have occurred despite suitable protection. The 1950 Regulations did not assist because the foreign body was not dust, fume or spray generated by the relevant process, and an efficient exhaust draught would not have removed it. The court doubted that an inspection between the two stages would have been practical or effective, but that issue did not determine the appeal.

Order: appeal allowed with costs here and below, with legal aid taxation.

1. Court of Appeal — In [1994] EWCA Civ 31, the appeal was allowed and the claim was remitted for assessment of damages.
2. County Court at Stafford — Judge Allardice dismissed the personal-injury claim on 25 June 1993.