Fytche v Wincanton Logistics Plc

This appeal raises a difficult point on the true construction of the Personal Protective Equipment at Work Regulations 1992. It is an appeal from the decision of Astill J which was itself an appeal from Mr Recorder Wilson-Smith QC brought by permission of Mance LJ and Newman J after an oral hearing. Mance LJ had originally refused permission on paper, an indication that the point is not an easy one.

The facts found by the Recorder are not challenged and I can summarise them quite briefly. The appellant was employed by the respondents as a heavy goods vehicle driver. The duties involved him driving a 32 ton articulated bulk tanker over a wide area collecting milk from farms. His employers provided him with steel-capped safety boots designed to protect his feet against the falling of heavy articles or injury due to coming in contact with sharp or hard objects. The appellant worked the night shift and was required to go on to farms in all kinds of weather conditions.

The respondents changed the safety boots approximately every 6 months and these safety boots were approximately 6 months old at the time of the incident which led to the present injury. The incident which lead to the appellant’s injury involved the appellant being out of his cab in very cold weather walking on the ice and snow attempting with the assistance of a cowman and a tractor to rescue his lorry. There was unknown to anyone a tiny hole in the right hand boot where the toecap met the sole adjacent to the appellant’s little toe. The hole in no way impaired the protection that the steel toecap provided but it allowed the ingress of water. In the extreme weather conditions that existed the appellant got frostbite in his toe caused as the Recorder was to find “by reason of there being a small hole in his right boot”. The Recorder also found:-

“7.8

The hole in the right boot was unknown to [the appellant] until after the incident.

7.9

The condition of the boots was unknown to [the defendants] and could not reasonably have been discovered by them,

7.10

The boots were ordinarily satisfactory for [the appellant’s] work.

7.11

At the material time [the appellant] had been working outside his lorry for up to three hours in conditions that were well below freezing.”

The appellant brought proceedings in the County Court alleging three causes of action: breach of the Personal Protective Equipment at Work Regulations 1992, breach of the Manual Handling Operations Regulations 1992 and negligence. The Recorder on 6 June 2002 found for the appellant under the Manual Handling Operations Regulations but dismissed the appellant’s claim under the Personal Protective Equipment at Work Regulations 1992 and likewise dismissed his claim in negligence. On an appeal by the respondents Astill J held on 30 October 2002 that the respondents’ appeal in respect of the Manual Handling Operations Regulations should be allowed and that the appellant’s cross-appeal in respect of the Personal Protective Equipment at Work Regulations 1992 and in negligence should be dismissed.

The appellant was granted permission to appeal solely in relation to his cause of action for breach of the Personal Protective Equipment at Work Regulations 1992 (the 1992 Regulations).

It is accepted as the Recorder found that the steel toecapped boots were personal protective equipment within the 1992 Regulations provided to protect the appellant “from anything falling on his toes and that part of his foot guarded by the toecap”. The short point which arises on the appeal is whether the respondents were in breach of regulation 7(1) of the 1992 Regulations.

Regulation 7(1) provided that:

“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.”

It is accepted that the language of that regulation imposes an absolute duty on the employer (see Stark v the Post Office [2000] PIQR 105). The question is whether the absolute obligation imposed on the employer in relation to repair under regulation 7(1) relates purely to the risk in relation to which the protective equipment is supplied or to any risk that may arise if the equipment is not in an efficient state or in good repair.

Regulation 7 must of course be placed in its context. The relevant regulations for that purpose are as it seems to me:

“2.(1) In these Regulations, unless the context otherwise requires, "personal protective equipment " means 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.

3.(1) [Not applicable]

Regulations 4 to 12 shall not apply in respect of personal protective

As I have said the Recorder found that the steel-capped boots supplied to the appellant were protective equipment within the above regulations. The Recorder construed regulation 7 as imposing an absolute duty on the employers in relation to maintenance in the light of Stark v The Post Office (supra). His judgment then continued in these terms:

“Is such a finding determinative of Mr Fytche’s claim as contended on his behalf? It is submitted on behalf of the claimant that the findings of fact that I have made together with the absolute duty imposed by Regulation 7 are sufficient on their own to establish liability.

I have held that the boots the claimant was wearing were personal protective clothing within the Regulations. I have done so because the boots had steel toecaps which were designed to protect the claimant in the course of his employment from injury to his toes.

On examination the right boot had a tiny hole which I have previously described. This allowed the ingress of water which lead to the claimant’s injury. The boots themselves remained entirely suitable as protective boots; the little hole in no way impaired the protection that the steel toecaps provided. It did not in any way undermine the protection that the boots were designed to give. This is an entirely different situation to that in the case of Stark where the equipment provided was plainly not in efficient working order at the material time.

In my judgment, on 19 December, 1999, the claimant’s boots were in efficient working order and in good repair. In my opinion it would be an abuse of language to hold that these boots were not in efficient working order or not in good repair because there was a tiny hole in them which was hardly visible, of which the claimant, who was fanatical about the upkeep of his boots was unaware. The hole did not in any way affect the efficiency of the boots in the context in which they were provided.

Were it necessary for me to consider the foreseeability of injury by reason of the hole in the right boot, I would hold there was none.”

The Recorder’s view was that Regulation 7 only required the employer to maintain or repair so as to preserve the efficiency of the boots against the risk in relation to which the boots had been supplied. This was a view with which Astill J on appeal agreed. In paragraph 38 of his judgment Astill J said “This injury was not caused by any defect in the steel caps i.e. the protection from the risk which it was necessary to provide. Regulation 7(1) demands that the personal protection equipment ‘is maintained in an efficient state, in efficient working order and in good repair’. The personal protection equipment here was the steel toecap and no defect in that caused this injury.”

At one time an attack was sought to be made on the reasoning of the Recorder and the judge on the basis that there were two risks against which the boots were intended to protect the appellant. The first obvious risk was protected by the toecaps and the second risk of injury through inclement conditions, by virtue of the other part of the boot to which the toecap was attached. Indeed this was still faintly pursued by Mr Birts QC on the appeal.

I would reject any such argument. The employers had not assessed that there was any particular risk from inclement conditions for which “protective equipment” was required. It was not and could not be suggested that they were in breach of the Regulations having failed to assess such a risk. As a result there was nothing special about the design of the boot to protect against any extraordinary weather or inclement conditions. It could not therefore be said that there was any failure to maintain the boots as protection against the risk of inclement conditions.

The main and much more formidable argument addressed by Mr Birts QC was that for whatever purpose the boots had been supplied there was an obligation to maintain them i.e. the whole of each boot in an efficient state and in good repair. That obligation was absolute and any failure to so maintain which caused injury provided the claimant with a cause of action for breach of statutory duty.

Mr Birts QC accepted that the circumstances of the instant case were perhaps not the best circumstances against which to test the proper construction of regulation 7. The type of injury suffered here by the appellant seemed a most unlikely consequence of any breach of the 1992 Regulations. But as he submitted the construction of regulation 7 which we would be asked to resolve would be of general and wide application. If employers assessed the risk which required the wearing of different footwear from the norm or different clothing from the norm, why he submitted rhetorically, should not the employer be under a strict duty to provide footwear or clothing which not only protected against the risk identified, but which also did not cause the employee through lack of repair or maintenance any other form of injury? He suggested that the respondents’ construction involved placing on the employer an absolute obligation simply to keep the steel toecap in good repair, but if that were right (so the argument went) it would allow an employer to require an employee to wear a protective boot with a sound toecap but with soles which were unsuitable for the conditions in which the boots were to be used, or with leather or other material which actually caused some form of injury to the foot.

Mr Birts QC emphasised that the 1992 Regulations applied over a very wide area of protective equipment. He suggested it would set courts a very difficult task if they had to differentiate between maintenance in relation to particular risk and maintenance as such. Thus Mr Birts QC submitted regulation 7 must place an obligation on the employer to keep in repair not just the protective element of equipment supplied but the whole of the actual equipment supplied both the aspect that supports the protective element as well as the protective element.

The contrary submission of Mr Nussey was that although regulation 7 by its language imposed an absolute duty, the regulation should not be construed so as to impose an absolute liability for a type of injury which the Regulations were nor concerned to avoid. When the Court posed questions to Mr Nussey as to why the employer should not have some obligation in relation to other parts of the boot other than the steel toecaps, it was clear that he could see the force that there should be some obligation. What was perhaps not fully explored was whether that obligation should be absolute by virtue of regulation 7(1) or whether that absolute duty was confined to the risks against which the protective equipment was provided, with the employer having simply a duty of care in relation to other risks of injury.

I have not found this an easy case. I have found helpful the discussion relating to “breach of statutory duty” in the 18^th edition of Clerk and Lindsell on Tort chapter 11. Paragraph 11-04 provides guidelines:

“…..Once the question of whether the statute is ever actionable in private law has been determined, there are four further issues, that must be considered:

(1)

The claimant must show that the damage he suffered falls within the ambit of the statute, namely that it was of the type that the legislation was intended to prevent and that the claimant belonged to the category of persons that the statute was intended to protect. It is not sufficient simply that the loss would not have occurred if the defendant had complied with terms of the statute. This rule performs a function similar to that of remoteness of damage…..”

This principle is repeated at paragraph 11-41:

“`Injury not contemplated by the statute Non-compliance with a statutory duty cannot be actionable unless the injury was of the type which the statute was passed to prevent. If a statute requires something to be done with a view to avoiding one particular type of damage……….”

Discussion of the principle is developed in paragraph 11-44 with citation of certain authorities.

The language or regulation 7(1) does impose an absolute duty, but the right questions in my view are: was it intended by the Regulations (as opposed to the Common Law) to impose an obligation on employers in relation to risks other than those necessitating protective equipment? In particular, was it intended by regulation 7(1) to impose an absolute obligation to maintain or repair so as to avoid an injury against which the protective equipment was not provided as protection?

In my view the correct answer to the above questions is that the regulations were not concerned with risks other than those necessitating protective equipment, and in particular no absolute duty was intended to be imposed by regulation 7(1) in relation to such risks. The obligation to supply protective equipment relates to identified risks. The obligation under regulation 4(3)(a) for example which relates to requiring equipment to be suitable for “the conditions at the place where the exposure to the risk may occur” deals with conditions which might lead to the equipment not being utilised as protection or not being suitable as protection because of the conditions. I would accept that the Regulations and in particular regulation 7(1) go beyond consideration of the toecap itself or the protective element. I would accept that if the injury suffered in this case had been by virtue of objects falling on the appellant’s toes because the condition of the boot were such that he was unable to wear them properly or perhaps at all, breach of regulation 7(1) would be established and damages would be recoverable.

If however a plaintiff is to recover for injury flowing from the condition of the part of the boot that supports the toecap or in other situations that part of the equipment which simply supports the protective element, and which is injury that the protective equipment was not supplied to protect against, a claimant should in my view only recover if he shows a breach of the Common Law duty of care by the employer. 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 employer or the employee and the findings of the Recorder negatived any such breach.

I would add for completeness that it may well be that even if the failure to maintain or repair related to the protective element i.e. the toecap, if the injury was not of the kind against which the protective equipment had been supplied, the answer might well be the same i.e. no recovery without want of care, but that is not this case and I say no more.

For the reasons I have given I would dismiss this appeal.

I agree with the conclusion of Waller LJ and the reasons that he gives for his decision. If it were not for his own view that this is not an easy case and my being aware that Lindsay J takes a different view, I should not have wished to add anything to his judgment.

In reaching my conclusion, I have found it helpful to consider a possible variation on the facts of this case. Suppose two men had been sent out in the lorry instead of just the appellant, one of whom like the appellant was required to lift weights and so was provided with boots with reinforced toecaps whilst the other was employed purely as a driver and thus did not require protective boots but nonetheless was supplied by his employer with ordinary boots. If one of the boots being worn by the driver was to have a small undetectable hole in it so that he suffered exactly the same fate as the appellant, then there could be no question of his recovering damages unless negligence could be established since Regulation 3(2) of The Personal Protective Equipment and Work Regulations 1992 would mean that Regulations 4 to 12 did not apply to the boots. If it was pointed out to such a person that it would have made all the difference if he had been the one wearing the boots with reinforced toecaps, he would no doubt have responded by asking what the toecaps could possibly had to do with his injury. Most people would probably think that no sensible answer could be given to that question.

The law should strive to avoid situations that defy explanation and it seems to me that the way in which it does so in this case is by adopting the approach put forward by Waller LJ namely that the absolute duty only arises in relation to the risks necessitating protective equipment. The duty to maintain “in an efficient state, in efficient working order and in good repair” is a duty to ensure that the protection provided is and continues to be effective in securing the protection for which it is provided. That is a long way removed from what has been suggested in this case to be the result of such a conclusion namely that it would mean the Regulation only applied to the toecaps. If a boot is not capable of being worn by the person to whom it is provided in the ordinary course of his activities, then it will not be effective in securing the protection from the risk identified since it is unlikely that it will be worn. Where, however, there is no question of the condition of the boot having any bearing on protection from the risk of heavy weights falling on the foot, then in my judgment no absolute duty arises and the duty is the ordinary duty to take reasonable care for the safety of one’s employees.

The condition of the appellant’s boots had no bearing upon the protection afforded to him from the risk for which it was provided. He was able to go about his ordinary activities wearing the boots with the toecaps in place to provide the required protection. He was no better off and no worse off than an employee who was not subjected to the risk of heavy weights falling on his feet. Hence the protection supplied to him was effective in securing protection from the risk that had been identified as requiring the provision of the boots. Thus I am satisfied that there was no breach of the absolute duty imposed upon his employers. The appellant, if he was to be compensated, had to establish a want of care on their part and on the facts of this case he was unable to do so.

I gratefully adopt Waller L.J.’s summary of the facts and of the applicable provisions but, with real diffidence, I would differ from the conclusion of the majority.

It is accepted that Regulation 7 (1) of the 1992 Regulations imposes an absolute duty upon the employer. It is in the nature of strict liability of such a kind that instances are thrown up in which, had a full review of all surrounding circumstances and of all competing considerations been open to a Court, it might have decided that justice required a decision otherwise than as due regard for the absolute duty dictated. For example, in Galashiel Gas Co. Ltd. –v- O’Donnell or Miller [1949] A.C. 275, which was concerned with the very same language as is before us as to maintenance in an efficient state, in efficient working order and in good repair, the Gas Company was held liable despite the facts that the brake which broke in that case had, for at least the 9 previous years, never been known to fail, in which its single failure properly to act could not be explained and although the Gas Company had taken every practical step to ensure that it worked properly.

It cannot be that in such cases Parliament does not appreciate that strict liability may lead to hard cases or that Parliament is indifferent to justice; rather it must be that, as a matter of policy in the area concerned, Parliament sees the disadvantages of the occasional hard decision as outweighed by countervailing considerations of policy.

In the case of protective equipment being provided to employees by employers, I would take the countervailing considerations of policy to be or to include the advantages that, absent proof of due maintenance of the equipment as the regulation requires, liability should, without more, fall upon the employer and that in that way litigation would accordingly be simplified, be inexpensive and be comparatively speedy.

If that is right then the way is open to a very straightforward approach. It was not the protective toecap alone that was the personal protective equipment that was provided to Mr Fytche by his employer. A steel toecap on its own is protection against nothing. It has to be located so that it will stay in a useful position relative to moving limbs and moving toes. Hence each metal toecap is incorporated into a boot. If one asks what was the personal protective equipment that was provided to Mr Fytche (and which thereby displaced the footwear he would otherwise have provided for himself) the answer, as it seems to me, can only be the whole pair of boots.

The next question which arises seems to me to answer itself. If one asks, with respect to a boot which, without being submerged but in cold conditions of ice and snow, permits an ingress of water through a hole close by a little toe, whether it has been “maintained (including replaced …… as appropriate) in an efficient state, in efficient working order and in good repair”, there is no room, in my judgment, for an answer other than that it has not. On that basis the employer should, at first blush, have been held liable under Regulation 7 (1).

Such a conclusion might in some circumstances, including those in this case, be thought to be unfair but the next question is whether it is open to this Court to escape such a conclusion and to limit strict liability under Regulation 7 (1) only to cases in which such injury as shall have occurred has been of a kind against which the equipment had been provided as protection or (a different test) where the risk, exposure to which, in the events which happened, caused the injury, was one which necessitated protective equipment.

As I see it, if any such limitation were to be introduced, a good part of those policy advantages which I would have identified as having led to the strict liability in Regulation 7 (1) would dissolve. There would need to be, in many cases, inquiry into what had been the particular type or types of risk or injury against which the employer had intended or should have intended that the protective equipment he provided would afford protection. Would the Judge’s answer be different in the present case if, for example, in answer to a question from a Union’s representative or, say, from the Company’s own Health and Safety Officer or even from a boot salesman, the Company’s management, after requiring that the boots should have a protective steel toecaps, had added “and our men are often out in really bad weather”? In order to hold which was the applicable duty of care and, especially if it was only an ordinary one, whether it had been breached, the Courts would not infrequently need to investigate or investigate more fully issues which would have been uncontentious or less contentious if the duty imposed was invariably absolute. Questions such as precisely what the defect in the equipment had been, how it had come about, what was the relationship between the defect and the injury or the causes of the injury and whether the defect or injury should have been foreseen would be more likely to loom. Causation and foreseeability would be more likely to be brought into the contest. The ensuing litigation would be less likely to be simple, inexpensive or speedy.

It may be added that if Parliament had intended strict liability to apply to the maintenance of the protective equipment provided in respect of protection against some risks but that in other respects liability for the maintenance would be subject only to an ordinary duty of care it could, no doubt, have readily so provided, but the straightforward language of Regulation 7 (1) contains no such qualification.

In the absence of any hint by Parliament as to there being such a qualification, I would be loth to introduce one unless there was such irresistible good sense in whatever qualification were proposed that one could be confident that, had Parliament only considered the matter, it would both have seen a need for a qualification and would have enacted whatever qualification is settled on.

I have been unable to find anything of such compelling force and accordingly, for my part, I would have allowed the appeal on the basis that the employer was under an absolute duty which it failed to perform.