Threlfall v Hull City Council

Where employees face a residual workplace risk that is neither de minimis nor trivial, an employer must provide personal protective equipment complying with the statutory suitability criteria. Effectiveness lies at the heart of suitability under regulation 4(3) of the Personal Protective Equipment at Work Regulations 1992. Equipment must, so far as practicable, prevent the identified risk or protect the worker from significant injury if the adverse event occurs.

Suitability is judged objectively when the equipment is provided, without hindsight. It is not determined by a general assessment of the employer’s reasonableness. A regulation 6 assessment should identify the particular risk and the characteristics required of the equipment. An inadequate assessment does not itself establish causative liability if the equipment supplied was nevertheless suitable.

A street scene operative employed by Hull City Council seriously cut his hand while clearing garden rubbish. The general-purpose gloves supplied by the Council were intended for minimal risks and were not cut-resistant. He claimed damages for negligence and breach of statutory duty under the Personal Protective Equipment at Work Regulations 1992.

HH Judge Jack dismissed the claim. Although he found a foreseeable risk of encountering concealed sharp objects, he regarded the risk as very low and the gloves as adequate. Blake J dismissed the operative’s first appeal, holding that causation had not been proved and relying partly on the Council’s risk assessment.

The operative appealed to the Court of Appeal. The central questions were whether regulations 4 and 6 had been correctly applied, whether the gloves were suitable, and whether any breach caused the injury. The Council cross-appealed on contributory negligence.

1. Appeal allowed and cross-appeal dismissed. Lady Justice Smith, with whom Lord Justice Jackson and Lord Justice Ward agreed, held that the gloves were unsuitable, that their provision breached regulation 4 of the Personal Protective Equipment at Work Regulations 1992, and that the breach caused the injury.

2. Regulation 4 was engaged because the employee faced a risk of laceration which could not adequately be controlled by tools, training or other means. A judge deciding whether regulation 4 applies need not assess the frequency or gravity of the risk. A residual risk suffices unless its likelihood is de minimis or the possible harm is so trivial that it should properly be ignored.

3. Regulation 6 requires specific assessment of the risks against which protective equipment is intended to guard. The Council’s assessment was manifestly defective because it did not address laceration or the characteristics required of protective gloves. Regulations 4 and 6 should be considered together, although failure to assess cannot directly cause injury and becomes irrelevant if suitable equipment was in fact supplied.

4. Suitability must be judged objectively when the equipment is provided and without hindsight. The court must follow the criteria in regulation 4(3), rather than undertake a general qualitative assessment of whether the employer acted reasonably. The approach in Palmer v Marks & Spencer PLC [2001] EWCA Civ 1528 did not govern this differently structured statutory scheme.

5. Effectiveness is central to suitability. The first inquiry is whether the equipment prevents or adequately controls the identified risk. In this context, adequate control means protecting the worker from significant injury when an adverse event occurs. Equipment failing that requirement is unsuitable regardless of whether it might otherwise be described as appropriate.

6. The standard gloves were objectively incapable of preventing or adequately controlling the recognised laceration risk. They were supplied for minimal risks and ordinary experience showed that they could not withstand pressure from a sharp object. Suitable cut-resistant gloves were practicable and were not shown to create any competing risk or incompatibility.

7. The employee did not have to identify the precise object or mechanism that cut his hand. Proof that his hand was cut while clearing rubbish in the supplied gloves, combined with proof that those gloves were unsuitable, permitted causation to be inferred. There was no evidence that he failed to take reasonable care, so the Council’s contributory-negligence cross-appeal failed.

1. Court of Appeal (Civil Division): The employee’s appeal was allowed and the Council’s cross-appeal on contributory negligence was dismissed: [2010] EWCA Civ 1147.

2. High Court: Blake J dismissed the employee’s first appeal from the county court on 7 January 2010.

3. Kingston-upon-Hull County Court: HH Judge Jack rejected the employee’s personal-injury claim.