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

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    35.  Regulation 7(1) states that the employer shall ensure that any personal protective equipment provided to his employees is maintained in good repair. The context indicates that this includes ensuring that it is kept free from defects that may create risks to health or safety at the place where the exposure to the risks for the protection against which it was provided may occur, as well as those that may affect its ability to protect the employee from those risks.

    36.  Regulation 11 provides that every employee who has been provided with personal protective equipment by virtue of regulation 4(1) must report to the employer any obvious defect in that personal equipment. This obligation is expressed in terms that are quite general. It is not limited to defects which may affect the ability of the equipment to protect the employee from the risks for the protection against which it was provided. It extends to any obvious defects. This regulation too casts light on the scope which is to be given to regulation 7(1), which is the only regulation which tells the employer what he must do to maintain the equipment.

    37.  The obligation in regulation 7(1) is to maintain the equipment in good repair. It is plain that it extends to making good defects that have been reported by the employee. But its terms too are general and unqualified. It is not limited to the making good of obvious defects. I would hold that it includes keeping the equipment free from defects which may create risks to health or safety, as well as those which may impair its ability to protect the employee against the risks for the protection against which it was provided. The employer's obligation is an absolute and continuing obligation. It goes beyond a duty to take care to achieve this result. How the employer does what the regulation tells him to do is his concern, not that of the employee. It is not for the employee to say how the defect could have been prevented.

Further considerations

    38.  Different views have been expressed throughout this case about the meaning and effect of regulation 7(1). The Court of Appeal were not able to arrive at a unanimous view on this point, nor has this been found to be possible by your Lordships. This indicates that it is not entirely free from ambiguity. It is proper then to ask what are the consequences of the two competing interpretations in order to decide which of them is preferable.

    39.  If the respondents are right, there is an absolute obligation on the employer under regulation 7(1) to keep the equipment free from defects that may impair its efficiency as protection against the risks for the protection against which is was provided. But the obligation to keep the equipment free of other defects which may cause the employee to sustain injury at the place where he is exposed to those risks, such as the hole in the boot which caused the appellant's injury, is left to the common law. It is not suggested, of course, that there is no obligation to deal with any defects which may occur in the equipment. But it is said that the absolute obligation does not extend to other defects which the employer did not know about and of whose existence he could not have known about if he was taking reasonable care. On this view, the risk of injury due to defects of that kind rests not with the employer but with the employee.

    40.  I would have expected some words of limitation or qualification to have been written into regulation 7(1) if the intention was that its scope should be limited in this awkward and rather untidy way. This would have been easy to do. All that was needed was the addition of a few words to make it clear that the obligation was to ensure that the personal protective equipment continues to be effective against the risk or risks referred to in paragraph 6(2)(a). The absence of those words indicates that the regulation is subject to no such limitation. This is because, if the scope of the regulation is limited, the question whether or not the obligation applies will depend on the facts of each case. Some defects will be subject to the obligation to repair and some will not.

    41.  This case, it may be said, is quite straightforward as the hole on the boot did not in any way impair the efficiency of the steel toe cap. But other cases may not be so clear. A consequence of this lack of clarity is likely to be a lessening of the degree of protection which the regulations afford to the employee. The protection for the employee is lessened if the burden of proving that there was some particular step that the employer should have taken rests on him.

    42.  But there is another consideration. The regulations leave all the choices about the provision of personal protective equipment, and how it is to be used and kept, to the employer. If he is provided with this equipment, the employee must wear or use that equipment according to the instructions which he is given. The regulations leave him no choice in the matter. He cannot substitute clothing or other equipment of his own choosing. The same result could, not doubt, have been achieved by contract. But the employee is not free to bargain with his employer about the terms on which he is to be required to wear or use personal protective equipment. The whole matter is predetermined for him by the regulations and by the choices which the employer has made under them.

    43.  It does not seem unreasonable in these circumstances for the employer to be under an absolute obligation to maintain the personal protective equipment in a state of good repair so that it is appropriate to the conditions where the employee has to work and does not create any other risks to his health or safety.

Conclusion

    44.  I consider that the respondents' absolute obligation to keep the appellant's boot in good repair extended to keeping it free from defects which exposed him to risks at the places where he had to work, such as the hole which caused his injury, as well as defects which exposed him to the risk or risks against which the boot was designed to provide protection.

    45.  For these reasons, and those in the speech of my noble and learned friend Baroness Hale of Richmond with which I am in full agreement, I would allow the appeal and give judgment in the appellant's favour in the agreed sum of £12,000.

LORD WALKER OF GESTINGTHORPE

My Lords,

    46.  The facts relevant to this appeal are set out in the speech of my noble and learned friend Lord Hoffmann, which I have had the advantage of reading in draft. I agree that this appeal should be dismissed for the reasons given by Lord Hoffmann. But since I have reached that conclusion with rather more hesitation, and in view of the division of opinion in the House, I will add some brief comments of my own.

    47.  This appeal turns ultimately on the correct interpretation of regulation 7 of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) ("the Regulations"). The Regulations represent the transposition into domestic law of a small part of complex and far-reaching European legislation relating to health, safety and welfare at work. It is not necessary to describe the panoply of Council Directives beyond noting that the identification and assessment of risk is one fundamental principle underlying the legislation. Another fundamental principle (reflected in the preamble to and in article 3 of the Personal Protective Equipment Directive of 30 November 1989 (89/656/EEC) ("the Directive") is that where possible risk should be avoided (by organisational measures) rather than reduced (by protective measures), and that means of collective protection are to be preferred to means of individual protection (such as personal protective equipment).

    48.  These principles have some bearing on the right approach to the interpretation of regulation 7. They do serve as a reminder that the Regulations are only a part, and a small part, of the larger legal picture and of the statutory and common law duties which the respondent employer owed to the appellant, Mr Fytche, as its employee. The general principles also add weight to the submission of Mr Dingemans QC for the respondent (concurred in by Mr Birts QC for the appellant) that in understanding the general scheme of the Regulations the best approach is not to read them straight through, from beginning to end. The important landmarks (or "hoops" for the employer, as Mr Dingemans put it) are, first, regulation 6; second, regulations 4 and 9; and third, regulation 7.

    49.  Regulation 6 is headed "Assessment of personal protective equipment" and it requires an assessment of whether the personal protective equipment which an employer proposes to provide is "suitable". The question whether the equipment is suitable is to be determined (in part) by the provisions of regulation 4 (3), which largely reproduces article 4 (1) of the Directive; this adds a minor detour to an orderly progress through the three hoops. But an important (and logically anterior) part of the assessment is "an assessment of any risk or risks to health or safety which have not been avoided by other means" (regulation 6 (2) (a)).

    50.  Regulations 4 and 9 are concerned with the actual provision of suitable personal protective equipment and the instruction of the employee in its purpose, practical use and maintenance. Both these regulations contain prominent references to the risks which the equipment is intended to protect against: see regulations 4 (3) (a) and 9 (1) (a). The primary and evident purpose of the requirement that the equipment should be "suitable" is that it should protect the employee who is wearing it (or using it) against the risk identified at the assessment stage.

    51.  Then comes regulation 7 (1), which is in the following terms:

    "Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair."

    This provision, supplemented by parts of regulations 8, 10 and 11, gives effect to article 4 (6) of the Directive. It does so in language (". . . is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair") which can be traced back at least as far as the Factories Act 1937, sections 22 (1) and 152 (1), considered by the House in Galashiels Gas Company Ltd v O'Donnell [1949] AC 275. This language does not expressly refer to maintaining the equipment in such a way that it remains "suitable" within the meaning of regulation 4. Nor does it expressly restrict the maintenance obligation to ensuring that the equipment remains suitable in that sense (that is as a means of avoiding or reducing the identified risks, whether or not the equipment is in other respects wholly satisfactory). The appellant does therefore derive some support from a literal interpretation of regulation 7, since a pair of boots with a hole (however small and inconspicuous) which lets in water can hardly be described as being in good repair.

    52.  In order to succeed the respondent must therefore establish a contextual restriction on the wide natural meaning of regulation 7 (1). It might be thought undesirable for the House to adopt a restrictive interpretation of a provision concerned with health and safety at work. But (as already noted) the Regulations are only a small part of the complex of statutory provisions concerned with health and safety at work (and at trial the appellant relied, unsuccessfully, on other statutory provisions and on alleged breaches of common law duties). Regulation 7 (1) imposes an absolute duty (that is common ground) and its breach is attended by criminal sanctions. If the scheme and context of the Regulations strongly suggests that a restricted meaning is appropriate, it should not be rejected merely because health and safety are in issue.

    53.  In my opinion there are strong contextual arguments for a restricted reading. The clear underlying purpose of the Regulations as a whole is to ensure the provision of personal protective equipment as a last line of protection against risks which are identified and assessed as not being avoidable (or controllable) by other means. Regulation 4 (1) imposes an absolute duty to ensure the provision of "suitable" equipment. Regulation 7 (1) imposes an absolute duty to ensure the maintenance of that equipment. It would be an extraordinary result if the employer could discharge his duty under regulation 4 (1) by providing a pair of boots with proper steel toecaps, even though the boots were not completely watertight, but could not discharge his duty under regulation 7 (1) by maintaining the boots in exactly the same condition. That anomaly is particularly striking in this case since it was never established whether or not the tiny hole in the right boot was present when the boots were first provided to the appellant. I would add that (in common, I think, with the whole House) I regard the personal protective equipment in question in this case as being a pair of boots with steel toecaps, and not just a pair of steel toecaps notionally filleted out of the boots.

    54.  One argument against the conclusion reached by the Court of Appeal is that an employee is obliged to wear personal protective equipment supplied to him, and that it seems unfair if he is obliged by his employer to wear a pair of boots which are defective in that one boot is not watertight (although this fact was, for six months, unknown to either side). But in my view Waller LJ met this point when (after referring to the need to establish a breach of the common law duty of care) he observed [2003] ICR 1582, 1589, para. 21,

    "I stress the standard of care will be a high one. Where the employer is asking the employee to wear particular footwear or clothing in place of the employee's own, I would suggest that rightly the court would impose a high duty on an employer. But in the circumstances of this case the tiny hole was undiscoverable either by the employers or the claimant and the findings of the recorder negatived any such breach."

    55.  Another argument (which weighed heavily with Lindsay J in his dissenting judgment in the Court of Appeal) is that a purposive construction of the Regulations may lead to uncertainties and prolonged and expensive litigation, whereas with an unrestricted absolute duty under regulation 7:

    ". . .litigation would accordingly be simplified, be inexpensive and be comparatively speedy" (p 1591, para 31).

    This concern merits respectful attention but I do not foresee serious difficulties in recognising the risks in respect of which personal protective equipment is supplied. The whole business of providing the equipment is (as already noted) concerned with the identification and assessment of risks. In any properly run business the risks will be fully documented (probably by reference to official publications) in a form which can be explained (and must be clearly explained—see regulation 9 (1) (a) and (2)) to the employees affected by the risks. The inquiries which Lindsay J refers to (p 1591, para 35) should therefore be unnecessary, since the answers should already be on file.

    56.  For these reasons, and for the fuller reasons given by Lord Hoffmann, I would dismiss this appeal. It is most unfortunate that the appellant should have suffered a painful injury in trying to do his duty, and perhaps going even beyond the call of duty, in the course of his employment. But the Court of Appeal was in my view right to hold that the respondent was not under a legal liability in respect of the appellant's injury.

BARONESS HALE OF RICHMOND

My Lords,

    57.  The Personal Protective Equipment at Work Regulations 1992 were part of the 'six pack' of regulations, made under section 15 of the Health and Safety at Work etc Act 1974 in response to the EU's Framework Directive (89/391/EEC) on the introduction of measures to encourage improvements in the safety and health of workers at work, and its six 'daughter' directives, including the Personal Protective Equipment Directive (89/656/EEC). The object of the 1974 Act was 'to make further provision for securing the health, safety and welfare of persons at work . . .' The object of the Framework Directive was to adopt 'minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers'. The overall aim, therefore, was to improve the protection of employees' health and safety.

    58.  Not surprisingly, the overall strategy was that prevention is better than cure. The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (replacing the 1992 regulations initially made to implement the Framework Directive) (the 'Management Regulations') require every employer to 'make a suitable and sufficient assessment of … the risks to the health and safety of his employees to which they are exposed whilst they are at work … for the purpose of identifying the measures he needs to take to comply with' his obligations under the 1974 Act and any health and safety regulations: see reg 3. Other regulations then lay down the specific measure he needs to take. These are referred to in the Management Regulations as 'preventive and protective measures'. When he implements any preventive and protective measures the employer must comply with the general principles of prevention (set out in Schedule 1), which include avoiding risks, combating risks at source, giving collective protective measures priority over individual protective measures, but also adapting the work to the individual.

    59.  Prevention may be better than cure but it is not the whole story. There is also enforcement and compensation. The Directives are not specific about enforcement or about compensation for the individual worker if he is injured. These are fitted into the existing framework of national law, mainly deriving from the 1974 Act. This set up the Health and Safety Executive and the Health and Safety Commission with wide powers to develop, encourage and ultimately enforce the legal requirements. It is a criminal offence to contravene any health and safety regulations: section 33(1)(c). In addition, breach of a duty imposed by health and safety regulations is, so far as it causes damage, actionable except insofar as the regulations provide otherwise: section 47(2). 'Damage' includes the death of or injury to, any person (including any disease and any impairment of a person's physical or mental condition): section 47(6).

    60.  Many of the duties imposed by the regulations are strict in the sense that they may be broken without any negligence or other fault. We have long been used to this. Indeed, the normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language: see, for example, John Summers & Sons Ltd v Frost [1955] AC 740, per Viscount Simonds at 751.

    61.  We have also long been used to the co-existence of the employer's liability for breach of his common law duty of care towards his workers with his liability for breach of the stricter and more detailed obligations laid down by the statutory provisions protecting workers. Since the landmark decision in Groves v Lord Wimborne [1898] 2 QB 402 it has been accepted that legislation protecting safety in the workplace gives rise to an action for breach of statutory duty and the same was generally true for provisions protecting health. Indeed, because of certain well-known defects in the law of negligence until the decision in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the action for breach of statutory duty was often the only one available to an injured worker. It is not surprising that a more relaxed and purposive construction was given to provisions designed for the worker's protection even if they also created criminal offences, usually minor and rarely prosecuted. But there is nothing in the 1974 Act or the Framework Directive to suggest a change in that approach: quite the reverse.

    62.  The position as to civil liability has now been put beyond doubt by section 47(2) of the 1974 Act. The major regulations are the product of the various Directives. But it would be surprising if either of these were intended to introduce a stricter approach to the construction of regulations intended to protect the health and safety of people at work. There is nothing irrational in a legislative scheme which (1) requires an employer to provide protective clothing in certain circumstances, (2) requires the employee to wear it, and (3) compensates the employee who is injured as a result of a defect in that clothing. The reason why the employee was provided with the clothing in the first place is a separate matter from the content of the duty. The legislation might decide to limit the employer's duty by reference to that reason or it might not.

    63.  It is against that background that I turn to the regulations themselves. It is accepted that this worker was provided with personal protective equipment by virtue of the regulations. Personal protective equipment is defined as 'all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety, and any addition or accessory designed to meet that objective': reg 2(1). It is now accepted on both sides that in this case the 'personal protective equipment' was the whole boot, not just the steel toe cap. This makes sense. The toe caps cannot be used at all, let alone provide efficient protection, unless they are attached to suitable footwear.

    64.  Having been provided with this equipment by virtue of the regulations, the employee has to use it in accordance both with any training and with any instructions with which he has been provided: reg 10(2). He also has to report any loss or obvious defect in that personal protective equipment: reg 11. This is consistent with the employee's own duty to co-operate in the preventive endeavour. It would seem odd if the employee were not under a duty to report obvious defects of any sort, but rather had to work out for himself why he had been provided with the boot and whether the defect in question impaired its efficiency in that respect. As far as the workman is concerned, he has been provided with a boot which he is required to wear and it makes sense to tell his employer of anything wrong with it, at least if this might cause him injury.

    65.  Having provided the boots, 'every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair': reg 7. This refers to 'any' personal protective equipment. It means the whole boot, not just the toe cap. It has to be kept 'in good repair'. I agree with my noble and learned friend Lord Walker of Gestingthorpe that a boot with a hole in it is not in good repair. It is defective. On the face of it, the regulation has been broken.

    66.  For the reasons given above, I find that neither surprising nor illogical. Am I nonetheless compelled to read into the regulation words that are not there in order to limit the employer's liability for injuries caused by a defective boot to injuries resulting from the reason why the employer decided to supply the boot?

    67.  I am not at all impressed by the argument that I should do so because the Directive and regulations put prevention before cure and collective before individual prevention. We are talking about a case in which injury has occurred because something supplied with the purpose of protecting the individual has turned out to be defective. To that extent, prevention has not worked. It may be the first resort but it is not the last.

    68.  Nor am I impressed by the argument that the whole obligation to provide this equipment assumes that the employer has conducted an assessment of risk. That is true. But it does not mean that the extent of his liability under these regulations should be limited by the results of his own risk assessment. There is no civil liability for breach of the general obligation to assess risks: see the Management Regulations, reg 22. The employer may or may not have assessed the risks properly. He may or may not have identified the right risks. It would be odd indeed if an employer who had identified the wrong risks should be in a better position than an employer who had identified the right ones. As Lindsey J pointed out in the Court of Appeal, another employer might well have identified a risk of prolonged exposure to inclement weather and muddy, snowy or icy farmyards and roads, against which waterproof boots should be provided. On the construction argued by the respondents, that employer would be liable but they are not.

    69.  Nor do I consider that there is any necessary anomaly or inconsistency between this interpretation of regulation 7 and the obligation in regulation 4 to ensure that 'suitable' personal protective equipment is provided. Although one element, perhaps the main element, in suitability is its efficiency to protect against the risks against which special protection is required, there is nothing in regulation 4 to suggest that this is the only criterion. Indeed, as pointed out by my noble and learned friend, Lord Hope of Craighead, other criteria are expressly included in regulations 4 and 6 themselves. The boot has to be suitable overall, not just in relation to the identified risk. A boot provided to a driver which impairs his ability to drive safely is not suitable. If this hole had been the result of attaching the toecap to the leather (as to which we have no evidence), the boot would not have been suitable. A safety helmet with a chinstrap which causes dermatitis is not suitable. There is no reason why suitability should not include being in good repair generally. Earmuffs with a sound system which is defective so that a sudden surge in volume perforates the wearers' eardrums are not suitable. A boot with a hole, however small, which lets in water is not in good repair.

    70.  The issue in this case, as identified by my noble and learned friend Lord Nicholls of Birkenhead in the course of the argument, is who should bear the risk that the boots supplied for a particular reason turn out to have an incidental defect which causes the employee injury while he is at work. I have no difficulty with the conclusion that the employer rather than the employee should bear that risk. There are good policy reasons for imposing strict liability on employers for many of the injuries which their employees suffer at work. The overall object of the legislation is to protect the health and safety of workers: if this fails and they suffer injury, strict liability means that they are compensated for that injury without the need for slow and costly litigation such as this. I appreciate that we have not yet reached the point where there is strict liability for every injury suffered by a worker in the course of his employment, but I see no need to bring in limitations which are not in the statutory language and could, as illustrated above, lead to some very surprising conclusions. I venture to suggest that a non-lawyer would find it odd indeed that Mr Fytche would have recovered damages if his employer had also thought the boots should protect against a weather risk but does not do so because his employer had a different risk in mind.

 
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