Bellamy -v- Nottingham City Council

Nottingham County Court, 19^th December 2014

C was employed as a Public Realm Operative. As he was working on grounds maintenance at a primary School, he was picking up a pile of ‘brash’ and sustained a needle stick injury to his right hand. He was wearing gloves but the hypodermic needle hidden amongst the material that he picked up with his hands, which he did not see, penetrated the gloves.

The school’s grounds were open at night because there is was a public footpath and so the Council had to ensure that litter and needle sticks were removed every morning before the school opened.

We argued a breach of Regulations 4, 6 and 10 of the PPE regulations, that the gloves were not suitable, the risk assessment was not adequate and the employer had not ensured that the PPE was properly used.

D argued that they had put a safe system in place to deal with the risk and that employees had been instructed that needles were not to be picked up by hand

The judge followed  Threfall v Hull City Council [2011] PIQR P3 (CA) and held that there was no safe system of work which was adequately enforced.  There was no real evidence to suggest that it was disseminated to the workforce or enforced.  The gloves provided were not suitable.  There was no contributory negligence; C could not have reasonably been expected to have  known that he was doing anything wrong.

Baker -v- Birmingham City Council

Birmingham County Court,  26^TH January 2015

C’s  was a test case, one of four linked cases all involving needlestick injuries for bin men working for Birmingham City Council. All sustained injuries from needles concealed in black bin bags when they went to pick them up. All were  wearing standard gloves with the lowest puncture resistance of 1 (out of 4) under BS EN388.  The issue was solely whether under the PPE Regs  D should have provided specific anti-needlestick gloves to their bin men.

The Defendant’s denied liability on the basis of practicability. They indicated that anti-needlestick gloves were invariably stiffer and less dextrous than standard gloves and led to increased risk of RSI. They indicated that bin men wouldn’t wear gloves that increased stiffness in any way. They relied on a staff survey they had carried out several years before the accident trying out various gloves on the job.

The survey covered some gloves with increased puncture resistance (up to 2 out of 4 on the EN388 scale) and there were adverse comments from bin men about even that slight increase rendering the gloves too stiff to wear. They also indicated that any gloves would need to be fully waterproof and that many anti-needlestick gloves are not.

Both sides had expert engineers. D’s essential points were that the anti-needlestick gloves were not suitable because they were generally too stiff and could cause RSI.  However, he was not able to point to a single published study linking over use of anti-needlestick gloves to RSI.

We relied on a consulting engineer, Steven Rawden, who tested over 20 gloves with 4 different types of needles. He concluded that the AN gloves provided significantly better protection. He also tried them all on and found that although there was a slight increase in stiffness it would not be a material increase that would cause injury. He recommended ways of achieving  waterproofness.

In giving judgment the judge approached the case as Smith LJ had in Threlfall , considering how Regulation 4 should be applied:

• What is the risk?  A needlestick injury
• Was PPE provided to combat risk?  – Yes, gloves with lowest puncture resistance.
• Was it effective in preventing injury?  No  (and the evidence was that there had been 10 similar injuries that year)
• Was it impractical to provide effective PPE?

Judge found for us on the final point 4 on two grounds:

The Defendant had the burden of proof on practicability but had not properly pleaded their defence. Although they had listed all the objections to our suggestion that AN gloves should have been provided they had not specifically stated in unequivocal terms that it wasn’t practical to provide alternative gloves. Very harshly the judge indicated that they could not therefore begin to mount a defence of the kind they had run.

However, he also went on to decide that even that had not been the case.

It was not impractical to provide the gloves in any event. Judge preferred the evidence of Mr Rawden over D’s expert on that issue.

Finally, on causation he accepted that AN gloves do not totally avoid the risk but it was sufficient that they significantly reduce it.

These are important cases.

Too often, NHS and contract cleaning companies whose staff are engaged in waste management on healthcare premises, waste disposal contractor whose staff are engaged in the collection and treatment of those wastes, and of local authority cleansing staff and other cleaners engaged elsewhere, are poorly provided with suitable equipment and appropriate PPE.

Sharps safety gloves are expensive and waste handlers have complained to me on many occasions that their employers are reluctant to issue replacements too quickly solely on the basis of excess cost.

Elsewhere, employees handling wastes in hospital premises and those engaged in litter picking or drug litter and needle retrieval in the community might be offered a pair of builder’s-type reinforced gloves that are not really suitable, a pair of Marigolds, or disposable nitrile gloves.  That is not acceptable.

In the only study of its kind, we found 40 sharps injuries suffered by waste handlers at a single treatment facility. Though the most common site for injury was the hands – where were the gloves? – sharps injury to legs also featured prominently.

Do your staff have good quality sharps protection gloves, preferably gauntlets, and trousers with ballistic panels?  Have they been properly trained?  Is that training assessed and periodically reinforced?  Are they properly supervised?

If you now answer no to any of these questions, you may have insurmountable and costly problems defending a case brought under PPE regulations.

There is no scope in blaming the waste producer who was responsible for placing that uncapped needle in the thin-walled waste sack that injured your employee. You know this happens and segregation errors are not uncommon. Failing to manage that will be costly.