Hampshire Police v Taylor

Under regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992, a residual workplace risk engages the duty to provide suitable personal protective equipment when it is more than de minimis, unless equally or more effective working methods control it. The duty is assessed against the range of work the employee may be required to perform, not only the task being undertaken at the moment of injury. Once breach of the duty is established, the employer must show that the employee would not have used the equipment or that the injury would have occurred despite compliance. Costs remain within the trial judge’s broad discretion and need not be allocated issue by issue.

PC Taylor was injured while helping Hampshire Constabulary dismantle a cannabis factory. She cut her hand on broken glass when she tried to open a sealed window while removing cannabis plants. The Winchester County Court rejected claims under the Control of Substances Hazardous to Health Regulations 2002 and at common law, but found a breach of the Personal Protective Equipment at Work Regulations 1992 and awarded damages.

The Chief Constable appealed on whether the 1992 Regulations applied to the sharp-edge risk, whether the duty had arisen when the injury occurred, whether Taylor had to prove that she would have worn thicker gloves, and whether the costs order was proper.

Appeal dismissed. Lord Justice Elias gave the judgment, with Lord Justice Patten agreeing.

1. Regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 was engaged. A residual risk more than de minimis, or a risk involving harm that was not trivial, required suitable equipment unless equally or more effective working methods controlled it. The court applied the guidance in Threlfall v Kingston Upon Hull City Council [2011] ICR 209 and the principle in Fytche v Wincanton Logistics plc [2004] ICR 975. A general assertion that working methods would eliminate the risk, unsupported by a proper assessment or particulars, was insufficient.
2. The duty was not confined to the precise task being performed when Taylor was injured. She had been tasked with dismantling the factory and might be required to undertake the full range of associated work, including work involving sharp objects. It would be unrealistic and contrary to the protective purpose of the Regulations to distinguish between tasks by reference to the instant of injury.
3. On causation, once breach of the duty to provide equipment was established, it was assumed that a reasonable employee would have used it unless the employer proved otherwise. The burden of showing that the injury would still have occurred lay on the employer. The court accepted the principle stated in Ali Ghaith v Indesit Company UK Limited [2012] EWCA Civ. 642 and treated it as supported by McWilliams v Sir William Arrol and Co [1962] 1 WLR 295.
4. The observations concerning remoteness and the scope of the Regulations were unnecessary to the decision. The court indicated that, had remoteness been argued, the damage would not have been too remote under the principle in Hughes v Lord Advocate [1963] AC 837. It also indicated that the risk involved in opening the window was of the kind against which the Regulations were intended to protect.
5. The costs order fell within the trial judge’s broad discretion. There was no obligation to make an issues-based order. The ordinary rule that the successful party receives its costs was not displaced, and the Part 36 order was not unjust. The principles in Fox v Foundation Piling Limited [2011] EWCA Civ 790 supported the order.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 496, dismissed the appeals on liability and costs.
• Winchester County Court: Mr Recorder Blunt QC found a breach of the Personal Protective Equipment at Work Regulations 1992, awarded damages of just under £5,000, rejected the causally relevant claim under the Control of Substances Hazardous to Health Regulations 2002 and the common-law claims, and made the costs order under appeal.