Threlfall v Hull County Council (Court of Appeal 20 October 2010)
Mr Threlfall had been working on a street scene programme, maintaining gardens of unoccupied council houses, removing rubbish and debris left by tenants and others. While handling a bag of rubbish, he suffered a severe cut to his finger, severing an artery and tendon. The standard issue personal protective equipment included those issued to all gardeners cloth and suede gloves.
The issue to be decided was whether or not he should have been issued with better gloves ones that were cut resistant.
The Court of Appeal found that Regulation 4 of the Provision and Use of Work Equipment Regulations covering the requirement to provide suitable protective equipment, should always be considered alongside Regulation 6, requiring a suitable risk assessment for work being carried out. It found Hull City Councils risk assessment for street scene operatives manifestly defective when considered alongside Regulation 6. It did not consider the risk of laceration to which workers were clearly exposed.
In the first instance decision and the High Court Appeal, rejecting Mr Threlfalls claim, the judges had accepted that the gloves were adequate, noting that these gloves had been used for years without mishap and that there had been no complaint about them at Health & Safety meetings attended by Union Representatives. Therefore, no breach of Regulation 4 was found.
The Court of Appeal disagreed. It felt that neither the judge had properly applied Regulation 4 (as informed and supplemented by Regulation 6).
There was an argument about Mr Threlfall not knowing precisely when his finger was cut: that he was the author of his own misfortune. But the appeal Court would have none of it, confirming: in my view, it should have been sufficient that the appellant showed that his hand had been cut whilst he was doing his job of cleaning rubbish and had been wearing the gloves provided.
His Honour Judge Jack on first appeal had also relied on the risk assessment not showing that cut-resistant gloves were required. The Court of Appeal found that: it was not open to the judge to base his conclusions on the result of so inadequate a risk assessment.
It pointed out the gloves were not suitable were there was a risk of laceration and argued that effectiveness is at the heart of suitability. The first question should be whether the PPE can prevent (or adequately control) the risk: if equipment is effective, it will be suitable: but if it is not effective, it could not possibly be suitable.
Because the Council had acknowledged there was a risk of laceration, garden gloves could not prevent that risk. Therefore, they were not effective and a breach of Regulation 4 had occurred. Mr Threlfall succeeded in his appeal.
This case distinguishes the approach to be taken in Provision and Use of Work Equipment Regulations claims. Its suitability is not simply a matter of appropriateness: it demands that the equipment must be effective in preventing or minimising the injury.