Fytche v. Wincanton Logistics Plc

I have had the advantage of reading in draft the speech of my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe. I agree with them. I add a brief word of my own solely because your Lordships are divided on this point of statutory interpretation. To my mind the crucial point in this case is that the existence of a very small and inconspicuous hole in one of Mr. Fytche's steel-capped boots did not constitute a breach of his employer's regulation 4 obligation to ensure he was provided with suitable personal protective equipment. The judge found that the boots were ordinarily satisfactory for Mr. Fytche's work. In other words, the boots were adequate for Mr. Fytche's ordinary conditions of work, tiny hole notwithstanding. That being so, the continuing existence of this hole was not a breach of the employer's regulation 7 obligation to maintain the boot in good repair. Regulation 7 should not be read as imposing, in this respect, a wider obligation than regulation 4. I would dismiss this appeal.

LORD HOFFMANN

My Lords,

On 19 December 1999 the weather in the south of England was exceptionally wintry. Heavy snow fell on the South Downs. A 32-ton milk tanker belonging to Wincanton Logistics plc ("the company") got stuck on an icy country road. The company's standard instructions for such a case were for the driver to use the telephone in the cab to call for help and then wait to be rescued. But the driver Mr Fytche was an experienced and self-reliant man who decided to dig himself out. He enlisted the help of a cowman from the dairy farm where he had come to collect the milk. They shovelled snow, spread grit and pulled with the farm tractor. After about three hours of spade work in sub-zero ice and snow, the tanker was freed and Mr Fytche drove off.

Unfortunately one of Mr Fytche's boots leaked. Some water got in through a tiny hole next to the little toe. The boots were supplied by the company. 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. But they were not meant to be waterproof or to be used outside in extreme weather conditions. Mr Fytche, an ex-Army man, described himself as fanatical about the upkeep of his boots but had not noticed the hole. He had never had wet feet before.

The effect of the penetration of water in freezing conditions was that Mr Fytche suffered mild frost bite in his small toe. It kept him away from work for some months and his toe has a permanent sensitivity to cold.

Mr Fytche commenced proceedings against the company. He alleged that they had been negligent in failing to supply him with boots which were adequate to protect his feet in freezing conditions. The company said that Mr Fytche's duties did not require him to walk about for long periods…

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