Blair v Chief Constable of Sussex Police

Under the Provision and Use of Work Equipment Regulations 1998, an employer must assess the foreseeable risk arising from an operation and provide equipment suitable for that purpose. Equipment is not rendered statutorily unsuitable merely because an accident may result from user error, where the equipment is inherently safe if properly used in accordance with instructions. A finding that equipment was suitable and that the accident resulted from the user's operation is ordinarily a factual evaluation by the trial judge. Permission to appeal should be refused where there is no real prospect of successfully reversing that evaluation.

The appellant, a police officer, claimed damages for a fractured ankle suffered during an advanced motorcycle course. He fell while riding a trailer motorcycle over rough, muddy and rutted terrain. The Brighton County Court dismissed his claim, finding that the motorcycle was neither defective nor unsuitable and that the accident resulted from rider error. Permission to appeal was granted on limited grounds concerning the boots supplied under the 1992 regulations. The appellant renewed his application for permission on the issues arising under the 1998 regulations, alleging breaches of Regulations 4 and 5. The central issue was whether the motorcycle was unsuitable because the operation carried an inherent foreseeable risk of injury.

1. Renewed application refused. The court was not persuaded that the proposed appeal had any real prospect of succeeding.
2. Under Regulation 4 of the Provision and Use of Work Equipment Regulations 1998, the employer must begin by considering the foreseeable degree of risk arising from the operation and must then provide equipment suitable for that purpose. The statutory concept of suitability does not impose strict liability for every accident occurring during use.
3. Where equipment is inherently safe when properly used in accordance with instructions, the possibility of user error does not by itself make it statutorily unsuitable. The judge had considered the appellant's wider case that riding over rough, rutted and waterlogged terrain involved an inherent foreseeable risk.
4. The finding that the motorcycle itself was neither unsuitable nor defective was an evaluative finding of fact. The accident was attributed to the appellant's operation of the motorcycle, rather than to a defect or unsuitability in the equipment. There was no real prospect that the appellate court would reverse that finding.
5. The allegation under Regulation 5, based on stiff gears, failed because the trial judge had found that the motorcycle was not defective. No appeal lay against that factual finding. Order: application refused.

• Brighton County Court: His Honour Judge Barratt QC dismissed the claim for damages for personal injury.
• Appellate court: Written permission to appeal was granted on limited grounds. The renewed application for permission concerning the work-equipment issues was refused.