09 March 2016

On 10 February 2016 the Supreme Court issued its eagerly awaited decision in the case of Kennedy v Cordia (Services) LLP, unanimously allowing Miss Kennedy’s appeal.

Background

The pursuer was employed by the defenders as a home carer. In the winter of 2010 she slipped and fell on a snow-covered path whilst visiting a terminally ill client’s home. The pursuer raised an action against her employers, relying on the Personal Protective Equipment at Work (PPE) Regulations 1992 and the Management of Health and Safety at Work Regulations 1999. She also claimed that they had been negligent at common law.

Outer House Proceedings

Evidence was given at Proof by Mr Lenford Greasly, a health and safety expert instructed for the pursuer. His position was that non-slip footwear attachments called “Yaktrax” were readily available and would have reduced the risk of such an accident. The Lord Ordinary, Lord McEwan, found the defenders liable under both sets of Regulations and at common law.

Inner House Proceedings

The defenders successfully appealed the decision of the Lord Ordinary. The Extra Division of the Inner House took the view that Mr Greasly's evidence was inadmissible in certain respects and that there was no breach of the regulations or at common law. The Extra Division also held that the 1992 Regulations did not apply to the task the pursuer was carrying out at the time of her injury; the 1999 Regulations had not been breached; the common law duty of reasonable care had not been breached, and the pursuer had failed to establish any causative link between the alleged breaches and the accident.

Supreme Court Proceedings

The pursuer appealed to the Supreme Court. Her appeal was unanimously allowed overturning the decision of the Extra Division.

Expert Evidence

The decision contains a detailed overview of the use of skilled witnesses (14 of the 38 page written decision are dedicated to this issue), and sets out four matters which fall to be addressed: -

(i) the admissibility of such evidence;
(ii) the responsibility of a party’s legal team to make sure that the expert keeps to his or her role of giving the court useful information;
(iii) the court’s policing of the performance of the expert’s duties; and
(iv) economy in litigation.

The Supreme Court held that Mr Greasly had relevant qualifications and experience in health and safety, and that his evidence on matters of fact, such as his description of the locus, measurements, and evidence on availability of anti-slip attachments, was both relevant and admissible. His evidence provided a basis for the Lord Ordinary to determine whether the defenders had suitably and sufficiently evaluated the risks posed to their employees whilst at work, and identified the measures needed to protect their health and safety.

Statutory Duties

Regulation 3(1) of the Management of Health and Safety at Work Regulations requires a suitable and sufficient risk assessment to be carried out. Regulation 4(1) of the PPE Regulations requires suitable personal protective equipment to be provided to employees who may be exposed to a risk to their health or safety while at work except to the extent that such risk has been adequately controlled by other means which are equally or more effective.

The Supreme Court considered that the pursuer was exposed to an obvious risk of slipping and falling on snow and ice while travelling between clients’ houses. The risk was within her employers knowledge, as they had had received reports from other employees of similar accidents in previous years. The precautions taken, in the form of advice to wear appropriate footwear, did not specify what footwear might be appropriate. No consideration had been given to the possibility of providing PPE. The Lord Ordinary was therefore entitled to conclude that there had been a failure to carry out a suitable and sufficient risk assessment.

The Lord Ordinary had also found that anti-slip attachments were available which would have been suitable to reduce the risk of home carers slipping and falling on ice, and that the risk was not adequately controlled by other means which were equally or more effective. He was therefore entitled to conclude that there had been a breach of the PPE Regulations in failing to provide such equipment.

Common Law

The Supreme Court held that a reasonably prudent employer would conduct a risk assessment so as to take suitable precautions to avoid injury to its employees. The duty to carry out a risk assessment was logically anterior to determining what precautions a reasonable employer would take to fulfil its common law duty of care. An employer’s duty is no longer confined to taking such precautions as are commonly taken; a negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious. The Lord Ordinary was therefore entitled to conclude that the defenders were negligent in failing to provide the pursuer with suitable PPE.

Causation

The final question considered by the Supreme Court was whether, in the light of the other findings which were made, the only reasonable inference which could be drawn was that the defenders’ breach of their duties caused or made a material contribution to the pursuer’s accident. There was no suggestion that it would not have been reasonably practicable to provide PPE to the pursuer. An inference was to be drawn that the breach of regulation 4(1) had caused or materially contributed to the accident, and so the defenders were liable under the PPE Regulations.

The Supreme Court stated that if the breach of regulation 4(1) of the PPE Regulations was disregarded, the position in relation to causation from a common law perspective was more problematic. The Lord Ordinary’s opinion did not contain any explicit consideration of the matter, or articulate any conclusion. It was therefore difficult to maintain that there was a proper foundation for the decision that the employers were liable in damages at common law. That conclusion was of no practical significance in the present case, given that the employers were found liable in any event under the PPE Regulations.

Comment

The decision provides a detailed overview of the use of expert evidence in matters such as health and safety practice and procedures, and serves as useful guidance for practitioners in the duties incumbent upon experts, agents and the courts when expert evidence is used. It also highlights the need for meaningful risk assessments to be carried out, and suitable safeguards to be implemented. Employers should be especially mindful of employees who require to work off-site in the course of their employment, such as those who may visit clients in their homes, and the risks involved in them doing so.

Whilst the decision may seem like a blow for employers and insurers, the remarks of the Supreme Court on the issue of causation in the common law case may provide a silver lining in a post-Enterprise and Regulatory Reform Act 2013 context. On the face of it, if the case had been based on common law alone, the decision may have been different. On the other hand, it is arguable that the case would simply have been pled differently but would still have succeeded.

If this case were to come before the courts now, the pursuer would have to rely on a common law case only but in doing so would no doubt have argued that it is the duty of an employer, in taking reasonable care for the safety of employees, to comply with the relevant Regulations, and that failure to do so is indicative of common law negligence.

The full decision can be accessed here:- https://www.supremecourt.uk/cases/docs/uksc-2014-0247-judgment.pdf

Contact: Catherine Currie Partner & Solicitor Advocate ccr@bto.co.uk T: 0141 221 8012