UK: Personal Protective Equipment: How Wet Does A Claimant Have To Be To Succeed?

This case is a useful examination of just how harsh the courts continue to be on defendants in Employers' Liability cases.

Spalding v University of East Anglia (High Court, 2011)

Background

The claimant was a maintenance operative for the University and was called to a leaking radiator in the University library.

When he got to the radiator it was dripping but not pouring out water. In order to repair it he had to lie on the floor in an awkward way. The carpet was soaking wet and he thought he might be there for some time. So he got some plastic bin bags and covered the carpet with them to avoid having to lie down and get his clothes wet.

Having repaired the radiator he tried to get up but it all went horribly wrong. He slipped probably due to the bin liners and fell heavily, damaging his face and teeth and suffering a minor whiplash injury.

The claim at trial

The claimant argued that he should have been provided with waterproof clothing for a job such as this in breach of Regulation 4 of the Personal Protective Equipment at Work Regulations 1992. Had he been provided with such clothing he would have had no need to rely on the makeshift bin bags.

The claimant also argued that the defendant should have undertaken a suitable and sufficient risk assessment including addressing the risk of getting so wet that the employee would need waterproof clothing.

The judge found that the employer ought to have provided some sort of mat or mattress or some form of protective clothing. And, crucially, that this was a matter of health and safety, not just comfort, because there was a foreseeable risk that a man in wet clothing may suffer some sort of an injury, such as catching a cold!

The claimant succeeded at trial with 50 per cent contributory negligence.

Appeal

The defendants appealed the judgement on the grounds that neither the PPE Regulations nor the Management Regulations were engaged at all. Alternatively, if they were engaged, they were not breached. The defendants argued that there was never any reasonably foreseeable risk of injury to the claimant as opposed to mere discomfort in having to lie on a wet and sodden carpet to repair the radiator, even for an extended period. So there was no risk to the claimant's health or safety sufficient to engage the Regulations.

The appeal judge accepted that there was indeed an obvious risk of some adverse effect on the claimant's health through having to remain in sodden wet clothing for a period of several hours. So he rejected the defendant's principal argument that there was no foreseeable risk of injury. The harm was not so trivial that it could be ignored.

Having accepted that point, he also accepted that the trial judge was entitled to criticise the risk assessment for failing to address such a risk and provide a suitable mat or clothing to deal with it.

The defendant's appeal was therefore dismissed.

Conclusions: what can be learned?

It is difficult not to have sympathy for the defendants in this case. They must have thought that the accident was pretty far fetched to be foreseeable: the claimant slipping on a wet bin bags which he had put down to deal with the sodden carpet. There was no real evidence that operatives had used bin bags for this purpose in the past. But instead they were wrong footed by the claimant's lawyers who focused not on the bin bag but on the lack of waterproof clothing or protective mat.

This case shows how difficult it can be to fight and win Employers' Liability claims even where the accident is somewhat far fetched. It shows that the risk assessment process has to involve a far reaching analysis of all realistically possible risks using a fair degree of lateral thinking.

The defendants should apparently have appreciated that plumbers may get completely soaked when undertaking repair work and may therefore need access to waterproof clothing, despite the fact that on a common sense basis it is difficult to believe that plumbers really carry waterproof clothing with them and that the ambit of an employer's duty extends this far. All in all, following the claimant's successful appeal in Threlfall v Hull City Council (see our EL Regulations pack) this case shows that employers need pretty watertight risk assessments in order to defend such PPE claims – if you excuse the pun!

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