The art of writing is the art of discovering what you believe.
Gustave Flaubert

Friday 24 August 2012

Ricochet consequences

Not an expression I have found in an IP context, but such a nice one that it demands a place in this collection. It is to be found - at least, I found it, and who (apart from Google) knows where else it might be found - in Lord Hoffmann's speech in Fytche v. Wincanton Logistics Plc [2004] UKHL 31 (1 July 2004).

In that case, the driver of a milk tanker suffered frostbite to a toe as a result of spending several hours extracting his vehicle from snow and ice. His steel-capped boot, supplied by his employer, had a hole in it allowing water to enter and in the harsh conditions on the day in question this led to his injury. He claimed in negligence, but the employer successfully argued that the boots were adequate, as his job did not require him to walk about in snow and ice for long periods - his instructions specifically said that, in the situation in which he found himself, he should use the telephone provided to summon help. Unfortunately for him, perhaps, Mr Fytche was a self-reliant ex-soldier.

He then argued that, because the boots had steel toe-caps to protect him from dropped milk churns and the like, they were personal protective equipment, known in the trade as PPE (not to be confused with PPE), so the employer had a duty to maintain them - even to the extent of ensuring they gave protection against risks to which his employment expressly did not expose him, hence Lord Hoffmann's use of the Old French.

By three to two, the House of Lords held that there was no breach of the employer's duty. It strikes me - does anyone else think this? - that this case comes from a golden age of well-crafted and interesting House of Lords decisions, especially but not exclusively from Lord Hoffmann, which coincided with a period in my career in which I had neither the time nor the reason to be reading them. My loss.

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