Identifying risk of injury to employees – protective equipment

Preventing accidents and injury at work

I have explained in other articles how the law looks at prevention of accidents and injury at work. Some years ago lawyers acting for Claimants had to try to prove an employer should have been aware of a hazard, and should have protected its employees. The law used the benefit of hindsight to see how an accident or injury at work could have been avoided.

Much of the law is now based on regulations which impose a duty to risk assess before a task is undertaken. Prevention rather than cure seems to make sense. It is this process of risk assessment which has got a bad name by those who shout about the claims culture.

What is wrong with demanding that a job be properly assessed before asking an employee to do it? Employees are not guinea pigs testing a work process to see what might go wrong.

The Court of Appeal looked at the law of “personal protective equipment” which translated means gloves in this case.

Mr Threlfall was a member of a team maintaining the gardens of some unoccupied council houses. While he was dealing with a plastic bag of rubbish, wearing gloves provided by the employer, he cut his left hand. The case against his employer,  Hull City Council, had failed twice, but in the Court of Appeal he succeeded.

Mr Threlfall was wearing gloves, but the manufacturer had described them as “minimal risks only.” It sounds like they were gardening gloves made of cloth and leather. More sophisticated “anti-cut” gloves are available, but were not provided.

The Court came to the conclusion there was a risk that someone handling bags of rubbish could be cut, that the employer had not properly assessed the risks of the work, and that the gloves made available were not up to dealing with the risks a proper assessment would have identified.

Preventing the risk is the number one priority. Beyond that the employer should find another way of doing the job which avoids risk. Finally, and as a last resort the employer should protect adequately against that risk. If the employer does not assess properly and a serious injury occurs, why complain that compensation is payable?

Safety gloves to prevent personal injury at work

Compensation in a case like this would include some payment for the injury, not a large sum, and beyond that wage loss and expenses. Our law is designed to put an injured employee in the position they would have been had the accident not occurred, so far as that is possible in money terms. Claimants are not paid a fortune as some media reports suggest.

The current Judicial Studies Board Guidelines describe a “moderate hand injury” like this:

“Crush injuries, penetrating wounds, soft tissue type and deep lacerations. The top of the bracket would be appropriate where surgery has failed and permanent disability remains.”

The range of compensation for such injuries is £4,000 to £8,500. Not a huge amount for what is a nasty injury.

For those who want the detail the regulations under consideration in this case were:

Reg 4 of the 1992 Regulations provides, inter alia: “(1)…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… (3) Without prejudice to the generality of paragraphs (1) and (2), personal protective equipment shall not be suitable unless— (a) it is appropriate for the risk or risks involved and the conditions at the place where exposure to the risk may occur; (b) it takes account of ergonomic requirements and the state of health of the person or persons who may wear it; (c) it is capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed; (d) so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk…”

Reg 6 provides, inter alia: “(1) Before choosing any personal protective equipment which by virtue of regulation 4 he is required to ensure is provided, an employer … shall ensure that an assessment is made to determine whether the personal protective equipment he intends will be provided is suitable. (2) The assessment required by paragraph (1) shall include – (a) an assessment of any risk or risks to health or safety which have not been avoided by other means; (b) the definition of the characteristics which personal protective equipment must have in order to be effective against the risks referred to in sub-paragraph (a) of this paragraph, taking into account any risks which the equipment itself may create; (c) comparison of the characteristics of the personal protective equipment available with the characteristics referred to in sub-paragraph (b) of this paragraph; (d) an assessment as to whether the personal protective equipment is compatible with other personal protective equipment which is in use and which an employee would be required to wear simultaneously.”

The case is called Threlfall v Hull City Council [2010] EWCA Civ 1147; [2010] WLR (D) 262 and can be seen at http://www.lawreports.co.uk/WLRD/2010/CACiv/Threlfall_v_HullCC.html

Take care.

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About Mark Thompson

Personal injury and accident specialist solicitor

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