Fytche v. Wincanton Logistics plc

The central issue was the proper construction of regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992 in relation to regulation 4 and the definition of personal protective equipment in regulation 2(1). The question was whether an absolute duty to maintain PPE "in an efficient state, in efficient working order and in good repair" extends to defects which do not affect the equipment's ability to protect against the risks for which it was supplied but may cause other injury in the workplace.

The majority interpreted regulation 7(1) as limited in scope: maintenance obligations are to be construed in relation to the purpose for which the equipment was provided and need only ensure the continued suitability of the PPE for protecting against the identified workplace risks (regulations 2(1), 4 and 6). A tiny hole in steel-capped boots that did not impair the toe-cap's protective function therefore did not amount to a breach of regulation 7(1). Dissenting judges preferred a wider construction that would impose an absolute obligation to keep PPE free from defects that create any risk at the workplace (including defects unrelated to the identified protective purpose).

Background and facts:

• The appellant, a lorry driver, was supplied by his employer with leather boots fitted with steel toe-caps as part of compulsory uniform. While freeing a tanker in severe winter conditions he suffered frostbite in his little toe caused by water entering the right boot through a very small hole where the toe-cap met the sole.
• Negligence was not pursued at trial. The appellant relied instead on the Personal Protective Equipment at Work Regulations 1992, asserting liability under regulation 7(1) because the boot was not "in good repair."

Procedural posture:

• The case was heard at first instance (trial findings included that the boots were ordinarily satisfactory and the hole was inconspicuous and undiscoverable). The Court of Appeal considered the matter and produced an ultimately divided view. The case reached the House of Lords on appeal from the Court of Appeal ([2003] EWCA Civ 874).

Issues framed by the court:

1. Whether the boots were "personal protective equipment" within regulation 2(1) (answer: yes — the boots, including the toe-caps, were PPE).
2. Whether regulation 7(1)'s absolute duty to maintain PPE in "good repair" extends to defects which do not impair the PPE's protective function against the risks for which it was supplied but may create other risks (for example, allowing water ingress in bad weather).
3. How regulation 7(1) should be interpreted in light of regulation 4 (suitability), regulation 6 (assessment) and the Directive 89/656/EEC.

Court's reasoning:

• The majority held that the maintenance obligation in regulation 7(1) must be read in the context of the equipment's function as PPE: "efficient state" and "good repair" mean efficient for the purpose of protecting against the relevant workplace risks identified under regulation 6 and regulation 4. Regulation 7 therefore extends the duty to keep PPE suitable for its protective purpose but does not impose an unlimited obligation to repair every incidental defect unrelated to that purpose. Applying that approach, the tiny hole did not breach regulation 7(1) because the boots remained adequate for the ordinary conditions of the appellant's work and the hole did not affect the protective function of the steel toe-cap.
• The minority favoured a wider, literal reading of regulation 7(1). They concluded the employer's absolute duty extended to keeping PPE free from defects which might create risks in the workplace (including the hole that let in water), and on that basis would have allowed the appeal and awarded damages.

Relief sought:

• The appellant sought damages under the 1992 Regulations (strict liability for breach of regulation 7(1)).

Appeal dismissed. The majority interpreted regulation 7(1) as requiring maintenance so that PPE continues to be suitable for and effective against the particular risks for which it was supplied (read with regulations 2(1), 4 and 6). A small inconspicuous hole that did not affect that protective function did not constitute a breach of regulation 7(1).

On appeal from the Court of Appeal, Civil Division ([2003] EWCA Civ 874). At trial negligence was abandoned and the dispute proceeded on alleged breach of the Personal Protective Equipment at Work Regulations 1992 (reported in the Court of Appeal at [2003] ICR 1582). The House of Lords considered competing statutory constructions and dismissed the appeal by a majority.