Fytche v Wincanton Logistics Plc

An absolute duty to maintain personal protective equipment under regulation 7(1) requires the protection to remain effective against the identified risks for which it was provided. It extends beyond the protective component where a defect makes the equipment incapable of being worn properly or at all. It does not impose strict liability for injury arising from a different risk which the equipment was not supplied to prevent. Such a claim depends on breach of the common-law duty of care. The standard may be high where an employer requires particular footwear or clothing, but an undiscoverable defect will not establish want of care.

The appellant, a heavy goods vehicle driver, suffered frostbite after water entered a small hole in a steel-capped safety boot while he worked outside in freezing conditions. The boots had been supplied as personal protective equipment to protect against falling or sharp objects.

The County Court dismissed claims under the Personal Protective Equipment at Work Regulations 1992 and in negligence, but found for the appellant under the Manual Handling Operations Regulations 1992. Astill J allowed the employer’s appeal on manual handling and dismissed the cross-appeals. Permission to appeal to the Court of Appeal was limited to the claim under the 1992 Regulations. The central issue was whether regulation 7(1) imposed an absolute duty to maintain the whole boot against every risk of injury, or only against the risks necessitating its provision.

1. Appeal dismissed. Waller LJ delivered the leading judgment and Kay LJ agreed. Lindsay J dissented. The order recorded dismissal with agreed costs of £5,189 and refusal of permission to appeal to the House of Lords.
2. Regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992 imposed an absolute duty. The court relied on Stark v the Post Office [2000] PIQR 105 for that conclusion. The absolute character of the duty did not determine its scope.
3. Reading regulation 7(1) in the context of the Regulations, the duty concerned the risks which necessitated the provision of protective equipment. Regulation 4(1) linked provision to exposure to an identified risk, while regulation 4(3)(a) addressed conditions that might prevent equipment from being effective as protection. The employers had not assessed any special risk from inclement weather. The frostbite therefore arose from a risk against which the boots had not been supplied.
4. The duty was not confined to the steel toecap alone. A defect in the boot that made it impossible or impracticable to wear, and thereby undermined protection against the identified risk, could constitute a breach. Here, the hole did not affect the toecap’s protection. Recovery for the water-related injury therefore required breach of the ordinary common-law duty of care. The defect was undiscoverable by both employer and employee, so no want of care was established.
5. Waller LJ added obiter that even a defect in the protective element might not attract absolute liability where the injury was outside the kind of risk against which the equipment had been supplied. Lindsay J would have allowed the appeal. He considered the whole pair of boots to be the equipment provided and found the unqualified wording of regulation 7(1) sufficient to impose liability, relying on Galashiel Gas Co Ltd v O’Donnell or Miller [1949] A.C. 275.

1. Court of Appeal (Civil Division): Dismissed the appeal concerning the Personal Protective Equipment at Work Regulations 1992. [2003] EWCA Civ 874.
2. High Court of Justice, Queen’s Bench Division: On 30 October 2002, Astill J allowed the employer’s appeal on the Manual Handling Operations Regulations 1992 and dismissed the appellant’s cross-appeals concerning the 1992 Regulations and negligence.
3. County Court: On 6 June 2002, Recorder Wilson-Smith QC found for the appellant under the Manual Handling Operations Regulations 1992 but dismissed the claims under the 1992 Regulations and in negligence.