Despite the constant press reports that health and safety legislation requires an ‘over the top’ response, our Health and Safety Consultants have always advised their clients to take a sensible approach; to assess the hazards from work activities and introduce precautions and control measures that take account of reasonably foreseeable risk.

This approach has now been confirmed in a recent High Court appeal case which has shown the value of the risk assessment process and confirmed that employers have only to take account of reasonably foreseeable risks.

A Local Authority employed ‘street scene operative’, clearing rubbish from council owned gardens, sustained a severe injury to the little finger on his left hand. Although he had been wearing gloves, provided by his employer, the injury required surgery. He claimed damages from his employer alleging that the gloves were unsuitable.

The exact circumstances were unclear but the injury happened while he was clearing an overgrown garden that contained at least one plastic bag of rubbish. Evidence showed that the employee had received induction training and had attended a one day course on health and safety at work. The Court heard that a detailed risk assessment of the work had been completed. As a result the council had provided him with a litter picker, a rake, a shovel and a pair of standard rigger’s gloves.

The claimant’s case was that because the gloves that he had been supplied with did not prevent the injury, they were not suitable for the work of garden clearance, given the reasonable possibility that sharp items were among the items to be cleared.

At the original hearing the Judge found against the claimant. He found that the council had correctly assessed the risks of the job as low and, given the level of training and equipment provided, the risks to the claimant were very low. He ruled that the gloves supplied were adequate for the level of risk which had been identified by the risk assessment; particularly as they had been in use for many years without any reported problems or incidents.

On appeal, Mr Justice Blake held that the initial judgement had been correct. This was because the work had been carefully risk assessed. The risk assessment had been thorough and took account of the previous lack of incident or injury. Because it was unclear how the injury occurred there was no evidence to indicate that the risk assessment should have identified that the gloves were unsuitable.

In his judgement Mr Justice Blake confirmed that to be suitable, protective equipment need not make it ‘impossible’ for an accident to happen, it should reduce the possibility, the risk, to ‘highly unlikely’. He suggested that as a result of this accident the risk assessment should be reviewed, hinting that a different outcome might now be appropriate.

If you would like advice on conducting a risk assessment, call through to the Advice Service on 0844 892 2785 and one of our advisors will be happy to help.