Hampshire Police v Taylor

PC Taylor is a police officer working with the Hampshire Constabulary. On 4 September 2008 the appellant’s officers discovered a cannabis factory in a house in Southsea. The occupant of the house had been arrested and steps were taken to dismantle the operation. The electricity was made safe and disconnected and a number of officers, including PC Taylor, were charged with gathering up and disposing of the cannabis plants and the equipment. Before this was done, PS Humphreys carried out a risk assessment. He read the relevant safety procedure document and considered that the only material risk was from skin being irritated by being in contact with the plants. He recommended that gloves be worn to guard against this risk. Accordingly, the officers concerned wore latex gloves.

The plants were cleared on the afternoon of 4 September 2008. PC Taylor was uprooting cannabis plants and taking them outside to a skip. The house was hot with poor ventilation and she said she felt nauseous as a result of the unpleasant smell of cannabis, so after about twenty minutes she decided to open a window. She did not notice that it had been sealed. She pushed at the window causing the glass to break and her right hand went through the glass which resulted in a cut to her thumb.

PC Taylor claimed damages from the Chief Constable for her injury. Her case was heard at the Winchester County Court before Mr Recorder Blunt QC. She made a number of distinct allegations. First, she alleged that the Chief Constable was liable for not providing gloves that were effective to prevent or reduce the injury (for example thick gardening gloves), contrary to the Personal Protective Equipment at Work Regulations 1992 (“the 1992 Regulations”), and the common law duty of care. Second, she contended that he was liable for not preventing or reducing her exposure to cannabis, contrary to the Control of Substances Hazardous to Health Regulations 2002 (“the 2002 Regulations”), and at common law. The judge found that there was indeed a breach of the latter regulations but that is was not causally relevant. The officer had claimed that her hand had slipped as a consequence of the breach and that this caused her injury, but the judge rejected that submission. He also dismissed her common law claims.

However, the judge found in her favour with respect to her claim under the 1992 Regulations. He concluded that the appellant was in breach of that duty in failing to provide the officer with thick gloves to protect against sharp edges, and held that had she been wearing them, the injury probably would not have occurred. Damages of just under five thousand pounds were awarded. Apparently no claim for contributory fault was pursued.

The appellant contends that the judge erred in various ways in this analysis. First he submits that the judge was wrong to find that the 1992 Regulations were engaged at all. Second, he says that even if they were in principle applicable, they did not require gloves to be provided when the officer was dealing with the cannabis plants since at that point there was no risk from sharp edges. The duty had not at that time materialised. Finally, he submits that the officer should have shown that she would have worn the gloves even if available and there was simply no evidence to demonstrate that she would.

Before dealing with the legal submissions, I will set out the material law. Regulation 4(1) of the 1992 Regulations provides:

“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 6 requires the employer to check the equipment to ensure that it is suitable. Regulation 4(3) defines what constitutes suitable equipment. As Lady Justice Smith observed in Threlfall v Kingston Upon Hull City Council [2011] ICR 209 para 45 the essential point is that for equipment to be suitable, it must be effective. It is accepted that thick gloves would have been suitable equipment here.

Regulation 4(1) makes plain that employers are expected to protect against risks of injury to their staff by appropriate working methods where possible, provided they are equally or more effective. As Lord Hoffmann put it in Fytche v Wincanton Logistics plc [2004] ICR 975, para 9:

“The purpose of PPE is, therefore, as a last resort after collective protection or methods of work organisation, to avoid or limit risks”

Guidelines issued by the Health and Safety Executive reinforce this point and set out certain principles which should be applied, if possible in the following order, to reduce risk:

“(a)

Try a less risky option, e.g use lower voltage tools.

(b)

Prevent access to the hazard, e.g. by guarding.

(c)

Organise work to reduce exposure to the hazard, e.g if there is a risk of falling objects, ensure restricted entry to that area if possible.

(d)

If after all the above there is still a residual risk, you will need to provide PPE, e.g. in areas where fumes are present.”

I turn to consider the points at issue in this case.

The first issue which the judge had to decide was whether the 1992 Regulations were engaged at all with respect to the risks from sharp edges. Was there an obligation to provide protective clothing to any of the workers to minimise that risk? In determining that question the judge referred to some observations of Smith LJ in Threlfall when she said (para 44):

“If a residual risk exists, the regulation is engaged, provided that the risk of occurrence is not so slight as to be de minimis or the nature of the harm so trivial that it should properly be ignored.”

It follows that once a risk is proved to be more than de minimis, the employer must provide suitable equipment unless working methods can provide equal or more effective protection.

The judge concluded that there was a risk, more than de minimis, from the sharp edges and he was not satisfied that it could be equally or better eliminated or mitigated by other working methods. He said this (paras 37-39):

“However, the video showed, amongst other things, that the cannabis farmer had installed substantial lengths of ventilation ducting, and he agreed that that would have had to have been “pulled down” by his team. He stated that there might be sharp edges on such ducting. In re-examination he stated that such ducting was often fixed by screws, but he also stated that there were inherent but low risks of encountering sharp edges in cannabis factories, and he re-affirmed that the ends of such ducting could be sharp, and that it needed to be taken down with care. This evidence was plainly based upon previous experience – either his own, or that of colleagues. Nevertheless, he stated that thick gloves were not usually used, and that in any event, that risk was controlled by appropriate working methods and did not require the provision of any protective equipment.

In closing submissions, made on behalf of the Defendant, it was asserted that acting PS Humphry’s evidence in relation to the control of the risk had not been challenged. That is not surprising, because it was given in re-examination and was of a general nature.

Acting PS Humphry’s evidence that there were no syringes or other signs of the use of hard drugs on the premises was not challenged, and was supported by the video. I accept that evidence. However, his evidence in relation to there being an inherent but low risk of encountering sharp edges in cannabis factories, his evidence relating to the ventilation ducting, and the lack of any convincing explanation as to how the risk of injury from sharp edges could be adequately controlled by means which were equally effective as, or more effective than, the provision of personal protective equipment such as thick gloves, leads inevitably to the conclusion that there was a risk of injury from sharp edges and that it was not so slight as to be de minimis or that the nature of the possible harm so trivial that it could properly be ignored. Accordingly, I am quite satisfied, and find as a fact, that Regulation 4(1) was engaged.”

The appellant submits that this conclusion was not supported by the evidence. He started from the assumption that the judge had concluded that sharp edges were only to be found in the ducting and he submitted that there was unchallenged evidence from PS Humphry that any risk of injury from such edges could be wholly eliminated by working methods, such as by ensuring that edges remained in their boxing.

I reject this ground of appeal. As the extract from the judgment set out above demonstrates, the finding was that there was a low but not de minimis level of risk in the cannabis factory generally. We were referred to a passage in PS Humphry’s evidence where he conceded as much. This was plainly a conclusion open to the judge. Furthermore, the judge specifically referred to the evidence that the risks could be eliminated by working methods. He was not convinced by this evidence. This is hardly surprising since there had been no proper assessment calculating the risk and no evidence of any consideration as to how it might be eliminated or minimised. PS Humphry had merely asserted in re-examination but without any particulars at all that the risks could be avoided in this way. It is hardly surprising that the judge considered this to be an unsatisfactory basis for concluding that the Regulations were inapplicable. It follows that there was a duty to provide equipment, in this case thick gloves, to protect against this risk.

A second and related issue was whether the duty had arisen at the time the injury was caused. The appellant submits that it had not, for two reasons. First, the actual task which the appellant was carrying out at that time was the removal of the plants and there was no reason to suppose that this involved contact with sharp edges. The latex gloves dealt adequately with the skin irritation risk which handling the plants created. Until she went on to carry out other tasks, such as removing the ducts, the duty to provide thick gloves had not yet materialised.

The judge’s conclusion on this was briefly but adequately stated. He said this (para 44):

“Of course, the Claimant was not injured whilst dismantling ventilation ducting nor by any sharp edge. She was injured by broken glass when she tried to open a window when she was engaged in removing cannabis plants. Nevertheless there was no suggestion that she was not to be included in carrying out any of the other tasks involved in dismantling the factory including the task of dismantling the ducting.”

As I read this paragraph, the judge is inferring that at any time she might be required to do work other than actually removing the plants, and this could involve contact with sharp edges. Removing the ducting was perhaps the most obvious example but as I have said, the judge was not limiting the risk to that operation. In my view this was a perfectly proper inference. This was not a case where she had been told specifically to limit her work to taking out the cannabis plants. I can see that had that been the evidence, there would have been a much stronger case to contend that latex gloves were suitable. But it was not the evidence. On the contrary, the evidence was that the officer was one of a number of officers tasked with dismantling the factory and this could involve her carrying out the whole range of tasks involved in that activity. She might at any time run the risk of contact with sharp objects. In those circumstances it would, in my judgment, have been wholly unrealistic for the judge to seek to distinguish between those duties which placed her at risk from sharp edges and those which did not. The dividing line would be virtually impossible to discern given the variety of ways, some unforeseen, in which such risks may arise. Moreover, it would undermine the protection which the Regulations are designed to provide to allow their application to depend upon a fine analysis of the specific task which the worker happens to be carrying out at the particular point in time when she is injured.

The third ground of appeal relates to the judge’s conclusion that the onus was on the appellant to show that the accident would not have happened had the gloves been provided, rather than placing the burden on the officer to show that it would. It is submitted that she should have adduced evidence to show that she would have worn thick gloves even when her task was simply to remove the cannabis plants. I am prepared to accept that if she had to discharge the burden, she failed to do so. Equally, if it was on the appellant, he failed to discharge it. The judge’s analysis was that the burden was firmly on the employer (para 46):

“However, there can be no doubt that if the Claimant had been wearing thick gloves (either of a type used for gardening or a type used in building works) her injuries would have been less or prevented entirely. Moreover, it seems to me that the burden lies on the Defendant to show that if he had complied with all his regulatory duties (including the duties in respect of the provision of information, instruction, and training imposed by Regulation 9) the injury would still have occurred. That this is so, is supported by paragraph 23 of the judgment of Longmore LJ in Ali Ghaith v Indesit Company UK Limited [2012] EWCA Civ. 642, addressing the issue of causation, which is in the following terms:-

This is not a separate hurdle for the employee, granted that the onus is on the employer to prove that he took appropriate steps to reduce the risk to the lowest level practicable. If the employer does not do that, he will usually be liable without more ado It is possible to imagine a case when an employer could show that, even if he had taken all practicable steps to reduce the injury (though he had not done so), the injury would still have occurred e.g. If the injury was caused by a freak accident or some such thing: but the onus of so proving must be on the employer to show that that was the case, not on the employee to prove the negative proposition that, if all possible precautions had been taken, he would not have suffered any injury.”

The appellant submits that the observations of Longmore LJ were in a different context. So they were, as indeed the judge noted. But this is a very firmly established principle and the judge was saying nothing novel. Once the employer is shown to be in breach of duty to provide equipment, the assumption is that it would have been used, because a reasonable employee would use it, unless the employer proves otherwise: see the decision of the House of Lords in McWilliams v Sir William Arrol and Co [1962] 1 WLR 295. In my view, therefore, the judge’s analysis was correct.

I should add that the judge noted that no argument based on remoteness of damage had been pursued before him. He indicated that if it had been, he would have found that the damage was not too remote and fell within the principle in Hughes v Lord Advocate [1963] AC 837. Nor was it suggested, either below or before us, that the risk involved in opening the window was not the kind of risk against which the Regulations were designed to give protection. These are potentially interesting questions but I say no more about them.

There is a separate appeal on costs. The judge ordered the appellant to pay all the officer’s costs on a standard basis up to 27 October 2011 and on an indemnity basis thereafter. The latter was in accordance with Part 36 CPR since there had been a payment in. The appellant submits that the judge was wrong to award all the costs since he had won on the argument under the 2002 Regulations. Moreover, the thrust of the original complaint had been the effects of the cannabis plant; it was only later, following an amendment to the claim, that there was the additional focus on the risk of sharp edges on which the officer won.

I do not accept that the judge’s order was outside the generous ambit given to judges in relation to costs. First, it seems to me that the premise of the argument is wrong. In fact the officer won substantially on the 2002 Regulations submissions but failed in establishing the necessary causation. Second, the fact that the successful argument was based on a relatively late amendment is of no materiality. The appellant has the costs of and occasioned by that amendment in any event.

There was no obligation in a case like this for the judge to make an issues based award of costs. The normal order that the successful party is entitled to all his costs is not lightly displaced: see the observations of Jackson LJ in Fox v Foundation Piling Limited [2011] EWCA Civ 790, para 62. It cannot possibly be said that the judge erred in law in making an order consistent with that principle. Moreover, as the judgment in Fox confirms (para 44), the order made under Part 36 of the CPR was the only proper order unless it was unjust to order it. There was no injustice in applying the usual principle here.

It follows that both the appeal on liability and on costs are dismissed.

I agree.