Court of Appeal considers application of Personal Protective Equipment Regulations 1992; gloves provided to Claimant were unsuitable – Threlfall v
Hull City Council 20.10.10
On 8 May 2006, Mr Threlfall was working as a street scene operative for the Council. He was clearing rubbish and debris from the garden of a council property. Whilst handling a black plastic bag of rubbish he sustained a serious cut to his left hand. He was wearing gloves, which were described by the manufacturer as being of a simple design for minimal risks only. He alleged that the gloves were not suitable. His claim failed at first instance, as did his first appeal.
Mr Threlfall’s appeal to the Court of Appeal was successful. Whilst he could not show exactly how the accident had occurred, it was sufficient for him to show that his hand had been cut whilst he was doing his job and wearing the gloves provided. Regulations 4 and 6 of the Personal Protective Equipment (PPE) Regulations 1992 should be considered together. Regulation 4 sets out the requirement to provide PPE and includes guidance as to what will be considered suitable. At the heart of suitability is effectiveness at preventing or adequately controlling the risk of injury. Regulation 6 requires the employer to carry out a risk assessment to determine whether the proposed PPE is suitable. The risk assessment carried out by the Council was manifestly defective and should have specifically dealt with the risk of laceration and the type of protective gloves required in the light of that risk. The standard issue gloves were plainly not effective to prevent or adequately control the risk of laceration as it should have been assessed.
Lady Justice Smith, a former claimant personal injury practitioner, described the gloves in question as “ordinary gardening gloves which common sense and common experience shows are not capable of withstanding pressure from a sharp object”. On this basis, it is perhaps not surprising that the appeal succeeded.
The decision will act as a reminder to defendants and their insurers of the responsibility to provide appropriate PPE to employees. The duty to provide suitable PPE when a risk cannot be controlled is absolute: Lane Group Plc v Farmilloe . Whilst the Court of Appeal accepted that, if the Council had provided suitable gloves, the lack of a risk assessment would have been irrelevant, a sensible risk assessment will usually be the starting point.