House of Lords
|Session 2003 - 04
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Fytche (Appellant) v. Wincanton Logistics plc (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Wincanton Logistics plc (Respondents)
THURSDAY 1 JULY 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Lord Hope of Craighead
Lord Walker of Getingthorpe
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Fytche (Appellant) v. Wincanton Logistics plc (Respondents)
 UKHL 31LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speech of my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe. I agree with them. I add a brief word of my own solely because your Lordships are divided on this point of statutory interpretation. To my mind the crucial point in this case is that the existence of a very small and inconspicuous hole in one of Mr. Fytche's steel-capped boots did not constitute a breach of his employer's regulation 4 obligation to ensure he was provided with suitable personal protective equipment. The judge found that the boots were ordinarily satisfactory for Mr. Fytche's work. In other words, the boots were adequate for Mr. Fytche's ordinary conditions of work, tiny hole notwithstanding. That being so, the continuing existence of this hole was not a breach of the employer's regulation 7 obligation to maintain the boot in good repair. Regulation 7 should not be read as imposing, in this respect, a wider obligation than regulation 4. I would dismiss this appeal.
2. On 19 December 1999 the weather in the south of England was exceptionally wintry. Heavy snow fell on the South Downs. A 32-ton milk tanker belonging to Wincanton Logistics plc ("the company") got stuck on an icy country road. The company's standard instructions for such a case were for the driver to use the telephone in the cab to call for help and then wait to be rescued. But the driver Mr Fytche was an experienced and self-reliant man who decided to dig himself out. He enlisted the help of a cowman from the dairy farm where he had come to collect the milk. They shovelled snow, spread grit and pulled with the farm tractor. After about three hours of spade work in sub-zero ice and snow, the tanker was freed and Mr Fytche drove off.
3. Unfortunately one of Mr Fytche's boots leaked. Some water got in through a tiny hole next to the little toe. The boots were supplied by the company. They were made of leather and had steel toe caps to protect the toes in case something heavy like a milk churn should fall on them. But they were not meant to be waterproof or to be used outside in extreme weather conditions. Mr Fytche, an ex-Army man, described himself as fanatical about the upkeep of his boots but had not noticed the hole. He had never had wet feet before.
4. The effect of the penetration of water in freezing conditions was that Mr Fytche suffered mild frost bite in his small toe. It kept him away from work for some months and his toe has a permanent sensitivity to cold.
5. Mr Fytche commenced proceedings against the company. He alleged that they had been negligent in failing to supply him with boots which were adequate to protect his feet in freezing conditions. The company said that Mr Fytche's duties did not require him to walk about for long periods in snow and ice. The boots were adequate for his ordinary conditions of work. Mr Fytche had no answer to this defence and at the trial the allegation of negligence was abandoned.
6. Instead, Mr Fytche advanced an alternative argument which was based upon the fact that the boots provided by the company had steel toecaps. That fact had absolutely nothing to do with the existence of the hole which let the water in. The caps were to protect his toes from impact injuries. But Mr Fytche says that the toecaps made the boots "personal protective equipment" (PPE) for the purposes of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966). By regulation 7(1), an employer is under a duty to ensure that any PPE provided to his employees is "maintained in an efficient state, in efficient working order and in good repair." Mr Fytche says that the existence of the hole meant that the boots were out of repair. Liability under the regulations is strict and the company is therefore liable for damage caused by the want of repair.
7. Before even looking at the regulations, I am bound to say that this would be a very strange and arbitrary result. Mr Fytche claims that because his boots were designed to protect him against a risk of his employment, his employers are liable in damages because they were inadequate to protect him against an injury which was not a risk of his employment. If there had been no risks from heavy objects and he had been issued with ordinary leather boots without steel toe caps, the boots would not have been PPE and the existence of the hole would not have given rise to any liability. I suppose that legislation can sometimes have these ricochet consequences but one usually expects a more rational scheme.
8. The regulations were made to comply with the Personal Protective Equipment Directive of 30 November 1989 (89/656/EEC). It recited that compliance with "minimum requirements designed to guarantee greater health and safety for the user of personal protective equipment" was essential to ensure the safety and health of workers and that the intention was "the employer shall be required to provide safety equipment and take safety measures". The general rule, as stated in article 3, was that:
9. The purpose of PPE is therefore, as a last resort after collective protection or methods of work organisation, to avoid or limit risks. What risks? Those which are perceived as existing at work. Article 5 requires employers to make an "analyis and assessment" of risks which cannot be avoided by other means and then to define the characteristics which the PPE must have in order to be effective against those risks. Article 4 spells this out a bit further: PPE must be "appropriate for the risks involved", not create its own risks, "correspond to existing conditions at the workplace", fit the wearer and so on. Article 6 says that Member States shall establish general rules for the use of PPE, indicating in particular "the circumstances or the risk situation in which the use of personal protective equipment is necessary." Article 7 requires that workers be informed about these matters. So the whole scheme of the Directive is to require PPE to be used to guard against specific risks which have been perceived to exist at the work place and which cannot be prevented or sufficiently reduced in other ways.
10. One next looks at the regulations to see how these principles have been given effect in English law. The regulations follow the general scheme of the directive and often repeat its language. There is the same requirement for an assessment of workplace risks and the choice of appropriate equipment. But there are differences in the drafting. For example, the definition of "personal protective equipment" is not quite the same as that used in the Directive. Regulation 2(1) defines PPE as:
11. I have put the last 14 words into italics to emphasise that there are two limbs to the definition: first, what is intended to be done with the equipment and secondly, what it actually does. The second limb is a functional definition. PPE does not come with a certificate or label saying "This is PPE". It is PPE if it protects the wearer or holder against risk. If does not protect, it is not PPE. Thus the idea of a risk against which one is protected is built into the concept of PPE under the UK regulations.
12. There are, however, a variety of forms of equipment which may protect one against a given risk and not all of them are sensible ways of dealing with the matter. Regulation 4(1) therefore imposes an obligation to supply employees who "may be exposed to a risk to their health or safety while at work" not merely with PPE satisfying the basic definition but with "suitable" PPE. And paragraph (3) gives some guidance on what counts as suitable equipment, or at any rate, what would not be suitable equipment. It says that without prejudice to the general notion of suitability, PPE shall not be suitable unless:
13. This list, with some rearrangement, reflects the independent requirements of article 4.1 of the Directive, which the UK regulations bring under the heading of suitability. In some cases, the items serve to spell out what would in any event have been signified by the word "suitable", such as being appropriate for the risk and the conditions at the workplace. Some items are directed to ensuring that PPE does not have characteristics which make employees less likely to wear it: it must not be the wrong size or fail to take account of ergonomic requirements and the state of health of the wearer. And there is also concern that the equipment shall not itself create risks which did not exist before. Here some compromise may be needed between total security against the primary risk and avoiding the creation of secondary risks. And of course there is some overlap in these objectives: failing to consider ergonomic requirements may both discourage use and create secondary risks.
14. All these tests of suitability are related to the basic function of PPE, which is protection against risk. An employer may be in breach of his obligation to provide suitable PPE either because it does not in fact protect against the risk and therefore is not suitable, or because, for one or other of the reasons set out in regulation 4(3) or by virtue of the general concept of suitability, it is not suitable for the purpose of protecting against that risk.
15. Mr Fytche was provided with steel toecaps on his boots because his employers considered that there was a sufficient risk of heavy things falling on his feet. The boots were therefore PPE and there is nothing to suggest that they failed any of the tests of suitability. They fitted, were appropriate for conditions in milk parlours and so on. Nor did the hole in one of the boots create a secondary risk or increase overall risk. The secondary risk or overall risk must be a risk in the course of employment. As Mr Fytche was not expected to do anything which required him to have waterproof boots, the hole created no such risk. If, as my noble and learned friend Baroness Hale of Richmond suggests, there had been a weather risk against which the boots should have protected Mr Fytche, then of course he would have been able to recover. PPE includes "clothing affording protection against the weather." But Mr Fytche does not suggest that he should have been given PPE to protect him against the weather. He was not expected to expose himself to severe weather conditions and for ordinary purposes the boots were adequate. His case depends entirely on the irrelevant fact that he needed boots with steel toecaps.
16. Assuming, therefore, that the hole was present when Mr Fytche was issued with his boots, there was in my opinion no breach of regulation 4. And Mr Birts QC, who appeared for Mr Fytche, did not argue that there was. He took his stand on regulation 7:
17. Mr Birts says that even though the boots complied with regulation 4 and indeed because they complied with regulation 4, they were PPE. Therefore the employees were under a duty to maintain them in good repair and a boot which has developed a hole, however small, is not in good repair.
18. In my opinion, however, "efficient state, in efficient working order and in good repair" is not an absolute concept but must be construed in relation to what makes the equipment PPE. What counts as being in an efficient state? Efficient for what purpose? In my opinion, for the purpose of protecting against the relevant risk. Regulation 7 extends in time the duty to provide suitable PPE under regulation 4. By virtue of regulation 7, it is not enough just to provide it and then leave the employee to his own devices. The employer has a duty to maintain it so that it continues to be suitable PPE. But he does not have a duty to do repairs and maintenance which have nothing to do with its function as PPE.
19. Assume, for example, a noisy workshop. The risk of injury to the hearing of employees can be suitably reduced by ear muffs which leave them in comparative silence. But the employer provides muffs with radio equipment so that employees who so wish can also listen to music. The radio receivers are delicate and several break down, so that after a while the employer stops repairing them and leaves the employees in silence. Does he commit an offence under the regulations because he has failed to keep PPE in good repair? In my opinion this would be absurd. Regulation 7 cannot, by means of the repairing obligation, require the employer to provide equipment which he need not have provided in the first place. Of course if the equipment had actually created its own risk, as in the example of ear-splitting surges suggested by my noble and learned friend Baroness Hale of Richmond, that would be an entirely different matter.
20. For these reasons, regulation 7 in my opinion takes the matter no further than regulation 4. It was submitted that there ought to be a general duty to keep PPE in repair in every respect because the employee was obliged by law to wear it. He could not say that he would rather wear better quality boots of his own. But in my opinion this is equally true in many cases in which employees are obliged under their contracts of employment to wear uniforms or equipment which is not PPE. It does not justify the imposition of a strict liability which exists for an altogether different purpose. As Waller LJ said in the Court of Appeal  ICR 1582,1589 the compulsory element is taken into account in the standard of care which the employer must observe to comply with his duty of care to the employees. But, even taking this into account, Mr Fytche recognised at the trial that he could not succeed in proving a breach of the duty of care. I would therefore dismiss the appeal.
LORD HOPE OF CRAIGHEAD
21. The appellant was employed by the respondents as a lorry driver. His job was to collect milk from farms and deliver it to the appropriate processing depot. His shift usually started at 3 pm, and he was required by the respondents to work all through the night and to drive to farms in all weather conditions: see the agreed statement of facts and issues, para 1. The incident which gave rise to his injury occurred at about 8.30 pm on 19 December 1999 when he was due to pick up milk from a farm at Slindon on the edge of the South Downs near Chichester. It had been snowing, and it was very cold. He approached the farm but found that the access to it was blocked. He decided to abandon the attempt, but his lorry became stuck. He had to spend about three hours walking on ice and snow before he secured its release. His right foot felt numb for a while when he resumed his journey. After a while it warmed up and he was not aware that anything was wrong. But some days later he began to have problems with his right little toe. It became infected, and he had to have it examined in hospital. It was found that the tissues of the toe had been damaged, and part of it had to be removed.
22. The respondents provided the appellant with a uniform which he was required to wear when he was at work. The uniform included a pair of steel capped safety boots. These boots were "personal protective equipment" within the meaning of regulation 2(1) of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) ("the 1992 Regulations"). So the appellant had no choice but to wear them when he was working. This is because regulation 10(2) provides that every employee shall use any personal protective equipment provided to him by virtue of the regulations in accordance with any training in its use and the instructions respecting its use which have been given to him. Section 33(1)(c) of the Health and Safety at Work etc Act 1974 provides that it is an offence for any person to act in breach of regulations made, as these regulations were, under section 15 of that Act.
23. The boots were designed to protect the appellant's feet from the risk of crushing injuries to his feet and toes or contact with hard or sharp objects. But the injury to the appellant's right little toe was not due to any defect in the boot's steel toecap. It was the result of frostbite. This was due to the fact that there was a small hole in the boot at the point where the steel toe cap met the sole of the boot. The hole was adjacent to the appellant's right little toe. It was so small that the appellant was not aware of it until after the incident. It could not reasonably have been discovered by the respondents. Nevertheless it was sufficiently large to allow water to enter the boot and, because of the conditions in which he was working that evening, to cause the toe to sustain frostbite.
24. Regulation 7(1) of the 1992 Regulations provides:
The boot had a hole in it. So the ordinary use of language tells us that it was not in good repair. It is accepted that the regulation creates an absolute and continuing obligation. But were the respondents in breach of it?
25. The answer to this question depends on whether the defect in the boot was within the scope of the regulation. Mr Dingemans QC for the respondents submitted that it was not. He said that a safety boot is maintained in an efficient state, in efficient working order and in good repair if it has been maintained so that it still protects the employee against the risks in respect of which it is supplied. If it is, there is no breach of the regulation even if in some other respect it is not in good repair.
26. There is nothing new in the idea that employers must provide personal protective equipment to employees who may be exposed to a risk to their health and safety. Many regulations of this kind were made under various provisions of the Mines and Quarries Act 1954 and the Factories Act 1961, for example, before the making of the Directive. They covered a host of different situations, and they varied widely in their layout and their terminology. The 1992 Regulations replaced this legislation with a new set of provisions which, subject to the exceptions listed in regulation 3(3), were intended to be of general application. So this case is not just a case about a small hole in a safety boot. It raises an important question which is of general interest to all employers and employees in cases where personal protective equipment is provided.
27. Regulation 7(1) must, of course, be read in its context. So it is necessary to look at the provisions in the 1992 Regulations which define the circumstances in which personal protective equipment must be provided and the steps which the employer must take before he provides the equipment to his employee. The 1992 Regulations gave effect to Council Directive 89/656/EEC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace. Its guiding principle is the prevention of risks to health or safety in the workplace. Article 2 defines "personal protective equipment" by reference to the hazards that are likely to endanger the employee's health and safety. Article 4 provides that personal protective equipment must be appropriate to the risks involved. The 1992 Regulations give effect to these and all the other relevant parts of the Directive. They meet its minimum requirements. How much further their requirements go must be determined by examining the terms of the Regulations.
28. The primary obligation which rests on the employer is set out in regulation 4(1). It provides that every employer shall ensure that "suitable" personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective. Regulation 4(2) imposes an equivalent general obligation on every self-employed person. The meaning which is to be given to the word "suitable" is explained in regulation 4(3), which provides, inter alia:
29. The question whether the personal protective equipment is "suitable" within the meaning of regulation 4(3) is to be determined by reference to the risk or risks which have made it necessary for the equipment to be provided. But that is not the only criterion. The employer must also ensure that the equipment is appropriate for the conditions at the place where exposure to the risk may occur. If it is not the equipment will not be "suitable" within the meaning of the regulations.
30. The reference in regulation 4(3)(a) to the conditions at the place where exposure to the risk may occur casts important light on the scope which is to be given to the maintenance obligation in regulation 7(1). The personal protective equipment must be maintained in an efficient state, in efficient working order and in good repair. One test of whether it is being maintained in an "efficient" state or working order and in "good repair" is whether it is still capable of protecting the employee against exposure to the risk or risks involved - that is to say, the risk or risks which made it necessary for the equipment to be provided in the first place. It is obvious that it must satisfy this test if it is to continue to protect the employee against them.
31. But that is not the only test which has to be satisfied if the equipment is to continue to be suitable. It has also to be maintained in a state which is appropriate for the conditions at the place where exposure to the risk may occur. Unless that requirement also is met the equipment will have ceased to satisfy one of the criteria that regulation 4(3)(a) says must be used to determine its suitability. One would expect the maintenance obligation in regulation 7(1) to extend to this requirement too, unless one is told otherwise.
32. The primary obligation, as I have described it, in regulation 4 is reinforced by a second obligation in regulation 6. Regulation 6(1) requires the employer to make an assessment of the equipment in order to determine whether it is suitable. What this assessment involves is explained by regulation 6(2), which provides:
33. The reference in regulation 6(2)(b) to any risks which the equipment may itself create casts further light on the scope of the obligation in regulation 7(1). Here too there is an indication that the obligation in regulation 7(1) is not limited to maintaining the equipment in an efficient state or working order to protect the employee against the risk or risks involved - those that cannot be avoided by other means, as indicated in sub-paragraph (2)(a). Account must also be taken in the initial selection of the equipment of any risks which the equipment may itself create. Here again one would expect the maintenance obligation in regulation 7(1) to extend to this requirement too, unless one is told otherwise.
34. The risks which the equipment may itself create may be inherent in its nature or characteristics, assuming that it is free from defects. But risks may also be created by defects in the equipment which is available. A loose strap on a piece of protective clothing, for example, may give rise to the risk of tripping. Scratches on goggles may impair the employee's ability to see where he is going. Leaks in the equipment may allow dust or water to penetrate and become trapped between it and the employee's body and affect his skin. It is obvious that one of the characteristics that the equipment must have, if it is not itself to create risks, is that it is free from defects of that kind. The assessment which the employer must carry out under regulation 6 before choosing any personal protective equipment in order to determine whether it is suitable must extend to ensuring that the equipment which is provided by virtue of regulation 4(1) is free from defects that may create risks.