Fytche (Appellant) v. Wincanton Logistics plc (Respondents)

An employer’s absolute duty under regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992 is to maintain equipment so that it remains suitable personal protective equipment. The duty relates to the function for which the equipment was provided. It does not require repair of a defect that neither impairs protection against the relevant workplace risk nor creates another risk in the course of employment.

Regulation 7 extends through time the duty under regulation 4 to provide suitable equipment. It does not impose a wider obligation or require an employer to maintain features which need not have been provided under regulation 4.

The appellant lorry driver was supplied with steel-capped boots to protect against crushing and impact injuries. While attempting to free his tanker from snow and ice, water entered one boot through a tiny, undiscoverable hole and caused frostbite. The boots were not intended to be waterproof, and prolonged exposure to severe weather was outside his ordinary duties.

The negligence allegation was abandoned at trial. The appellant instead relied on the absolute maintenance duty in regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992. The Court of Appeal, by a majority, rejected the claim: [2003] EWCA Civ 874; [2003] ICR 1582.

The issue was whether regulation 7(1) required personal protective equipment to be kept in good repair in every respect, or only insofar as repair related to its protective function and relevant workplace risks.

1. Appeal dismissed by a majority of three to two. Lord Hoffmann delivered the principal majority reasoning. Lord Nicholls and Lord Walker agreed that regulation 7(1) had not been breached. Lord Hope and Baroness Hale dissented.

2. Per Lord Hoffmann, regulation 2(1) of the Personal Protective Equipment at Work Regulations 1992 contains both an intended-use element and a functional element. Equipment is personal protective equipment because it actually protects its wearer against one or more risks. Regulation 4 consequently requires equipment suitable for the workplace risk which made protection necessary.

3. Regulation 7 extends the regulation 4 duty through time. Its requirements that equipment remain in an efficient state, efficient working order and good repair must be understood by reference to the function which makes the equipment personal protective equipment. The employer must maintain it so that it continues to protect against the relevant risk. The regulation does not require repairs unrelated to that protective function.

4. The steel-capped boots were suitable protection against the identified risk of crushing or impact injury. The tiny hole did not impair the toe caps, create a secondary risk in the course of the appellant’s ordinary employment, or make the boots unsuitable for the conditions in which he was expected to work. Regulation 7 could not require the employer to provide through maintenance a degree of weather protection which regulation 4 had not required initially.

5. Lord Walker agreed, emphasising the Regulations’ scheme of identifying and assessing unavoidable workplace risks before providing and maintaining suitable equipment. The absolute character of the duty and its criminal consequences supported construing it within that statutory context.

6. Dissenting, Lord Hope and Baroness Hale would have held that regulation 7(1) required the whole boot to be kept free from defects capable of creating risks to health or safety at the workplace. They considered the duty absolute, general and not confined to the risk which prompted provision of the equipment. They would have allowed the appeal and entered judgment for £12,000.

1. House of Lords: By a majority of three to two, dismissed the appeal and affirmed the result reached by the Court of Appeal: [2004] UKHL 31.

2. Court of Appeal: By a majority, held that the employer was not liable under regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992: [2003] EWCA Civ 874; [2003] ICR 1582.

3. Trial: The negligence allegation was abandoned, and the recorder’s findings negatived breach of the common law duty of care. No trial citation is stated.