Employer's PPE liability

It is often said that some of the most important legal cases result from trivial causes. Perhaps none could be more trivial than the case of Fytche -v- Wincanton Logistics, considered in July of this year by five law lords sitting in the House of Lords.
The cause of this litigation dates back to 19 December 1999, when the weather in the south of England was exceptionally wintry. Heavy snow had fallen on the South Downs, where a 32t milk tanker belonging to Wincanton got stuck on an icy country road near Chichester. The company's standard instructions for such a case were for the driver to use the telephone in his cab to call for help and then wait to be rescued.
However the driver, Bryan Fytche, was an experienced and self-reliant man who decided to dig himself out. He enlisted the help of a farm hand from the dairy farm where he had come to collect milk. He shovelled snow, spread grit and pulled with the farm tractor. After about three hours of spade work in sub-zero ice and snow, the tractor was freed and Fytche drove off.
Unfortunately, one of Fytche's boots leaked. Some water had got in through a tiny hole next to his little toe. The boots were supplied by his employer, Wincanton. They were made of leather and had steel toe-caps to protect the toes in case something heavy, like a milk churn, should fall on them. They were not necessarily meant to be waterproof or to be used outside in extreme weather conditions.
Fytche, an ex-army man, described himself as fanatical about the upkeep of his boots, but had not noticed the hole. The effect of the penetration of water in freezing conditions was that Fytche suffered mild frost-bite in his small toe. The toe became infected and part of it had to be removed. This kept Fytche away from work for some months and caused a permanent sensitivity to cold.
Employer's duties
Fytche commenced proceedings against Wincanton. He alleged the company had been negligent and failed to supply him with boots that were adequate to protect his feet in freezing conditions. Wincanton replied that Fytche's duties did not require him to walk about for long periods in snow and ice. The boots were adequate for his ordinary conditions of work. Fytche had no answer to this defence and at the trial, the allegation of negligence was abandoned.
Instead, Fytche advanced an alternative argument, which was based upon the fact that the boots provided by Wincanton had steel toe-caps. Fytche argued that the toe-caps made the boots personal protective equipment (PPE) for the purposes of the Personal Protective Equipment at Work Regulations 1992. By Regulation 7(1), an employer is under a duty to ensure that any PPE provided to its employees is maintained in an efficient state, in efficient working order and in good repair. Fytche complained that the existence of the hole meant that the boots were out of repair and that Wincanton was therefore liable for the damage caused.
Accordingly, the case concerned more than a small hole in a safety boot. It raised an important question of general interest for all employers and employees. Who should bear the risk that PPE supplied for a particular reason turns out to have an incidental defect which causes injury, which is unconnected to the risk that the equipment was intended to protect against? The House of Lords was divided three to two on this question, but concluded that the employer should not carry this risk.
Risk liability
Lord Hoffmann was clear that the employer would only be liable in respect of risks that arose in the normal course of employment. Fytche had been protected with steel toe-caps on his boots because his employers considered that there was a sufficient risk of heavy things falling on his feet. The boots were therefore PPE, but there was nothing to suggest that they failed any of the tests of suitability as required by the statutory regulations.
They fitted, they were appropriate for the conditions in milk parlours and so on. Nor did the hole in one of the boots create a secondary risk or increased overall risk, since Fytche was not expected to do anything that required him to have waterproof boots. He was not expected to expose himself to severe weather conditions and, for ordinary purposes, the boots were adequate. He concluded that Fytche's claim should
be dismissed.
Having provided PPE, Wincanton was under a statutory duty to ensure that it was maintained in an efficient state and in good repair, but was not liable for damages in the event that the equipment was inadequate to protect an employee against an injury which was not a risk of his employment.
This conclusion was in stark contrast to the dissenting judgments of Lord Hope and Baroness Hale. Lord Hope noted that the regulations leave all the choices about the provision of PPE and how it is to be used and kept to the employer. If he is provided with this equipment, the employee must wear or use that equipment according to the instructions he is given. The regulations leave him no choice in the matter.
Lord Hope considered therefore that it did not seem unreasonable for the employer to be under an absolute obligation to maintain the PPE in a state of good repair.
As Baroness Hale pointed out, it seemed odd that Fytche would have recovered damages if his employer had also thought that the boots should protect against a weather risk, but that he could not recover damages because his employer had a different risk
in mind.