Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6

A home carer slipped on ice while visiting a terminally ill client and injured her wrist. The Supreme Court held her employer liable under the PPE Regulations, Management Regulations and at common law for failing to provide anti-slip footwear attachments, and clarified the rules on expert evidence.

Facts

Miss Kennedy was employed by Cordia (Services) LLP as a home carer in Glasgow. On the evening of 18 December 2010, during a period of severe wintry weather, she was visiting an elderly, terminally ill client to provide palliative care. The public footpath leading to the client’s house was on a slope and covered with fresh snow overlying ice, and had not been gritted. Wearing flat boots with ridged soles, Miss Kennedy slipped, fell, and injured her wrist.

Cordia were aware that, on average, four home carers per year slipped and fell on snow and ice; in 2010 there had been 16 such accidents. Risk assessments carried out in 2005 and 2010 identified the risk in general terms but rated it as ‘tolerable’ and did not consider the provision of personal protective equipment (PPE) such as anti-slip footwear attachments. Employees were merely advised to wear ‘safe and adequate’ footwear, the choice being left to them.

Issues

• Whether the expert engineering evidence of Mr Greasly on health and safety practice was admissible.
• Whether Cordia breached regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 by failing to carry out a suitable and sufficient risk assessment.
• Whether Cordia breached regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 by failing to provide suitable PPE.
• Whether Cordia were liable at common law for failing to take reasonable care for the safety of their employee.
• Whether any breach caused or materially contributed to Miss Kennedy’s injury.

Arguments

Appellant (Miss Kennedy)

Cordia had failed to carry out an adequate risk assessment, had not considered the provision of anti-slip attachments which were available at modest cost and used by other comparable employers, and were liable under both regulations and at common law. Mr Greasly’s expert evidence supported the contention that the risk should have been rated ‘substantial’ and that anti-slip devices would have reduced or eliminated the risk.

Respondent (Cordia)

The risk was no greater than that faced by any member of the public in wintry conditions. The advice to wear appropriate footwear reduced the risk so far as reasonably practicable. The PPE Regulations did not apply to risks of this kind. Mr Greasly’s evidence was inadmissible because health and safety practice was not a recognised body of expertise and he had usurped the judge’s role.

Judgment

Expert evidence

The Supreme Court (Lord Reed and Lord Hodge delivering the leading judgment) provided extensive guidance on expert (skilled) evidence in Scotland. Four considerations govern admissibility: (i) whether the evidence will assist the court; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial; and (iv) whether there is a reliable body of knowledge or experience underpinning the evidence. The Court endorsed the test in R v Bonython (1984) 38 SASR 45 and adopted the duties summarised by Cresswell J in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68.

Health and safety practice is a legitimate field of expertise. The Extra Division had erred in treating much of Mr Greasly’s factual material as inadmissible and in excluding his opinion on risk assessment. Although some of his statements appearing to opine on Cordia’s legal duties were inadmissible, the Lord Ordinary had applied his own mind to the legal questions.

Management Regulations

The risk of slipping was foreseeable and had materialised regularly. Applying the hierarchy of measures in Schedule 1 (derived from article 6(2) of the Framework Directive), Cordia had failed to evaluate individual protective measures before relying on the last resort of giving instructions. The Lord Ordinary was entitled to find a breach of regulation 3(1). The Court approved Smith LJ’s observations in Allison v London Underground Ltd [2008] ICR 719 that risk assessments are ‘a blueprint for action’ and logically anterior to determining adequacy of precautions.

PPE Regulations

The Court rejected the Extra Division’s narrow construction. The words ‘while at work’ in regulation 4(1) refer to the time at which the employee is exposed to the risk, not to the cause of the risk. An employee travelling between clients is ‘at work’. The Framework and PPE Directives are not confined to risks arising from the nature of the activity, and Annex II to the PPE Directive expressly lists ‘Removable spikes for ice, snow’ as relevant PPE. Since suitable anti-slip attachments were available at modest cost and other employers had provided them, and Cordia had given no consideration to PPE, the exception in regulation 4(1) was not made out. There was therefore a breach.

Common law

The Court held that Lord Dunedin’s dictum in Morton v William Dixon Ltd 1909 SC 807 does not exhaustively state the modern employer’s duty. The ruling principle is that an employer must take reasonable care for the safety of its employees, as clarified in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 and Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003. The duty to conduct a risk assessment is logically anterior to determining what precautions a reasonable employer would take (Fytche v Wincanton Logistics plc [2004] ICR 975). Miss Kennedy was not in the position of an ordinary member of the public: she was obliged to attend clients regardless of conditions. The Caparo test was inapplicable as the existence of a duty was not in doubt.

Causation

Suitable PPE under regulation 4(3)(d) must, so far as practicable, be effective to prevent or adequately control the risk; ‘adequately’ implies that injury is rendered highly unlikely, drawing on Rogers v George Blair & Co Ltd (1971) 11 KIR 391. Where an employee would have used PPE if provided, it is normally reasonable to infer that failure to provide it materially contributed to the injury. That inference was justified here. The Court was less satisfied that causation was established at common law, given the absence of explicit reasoning, but this was immaterial given liability under the Regulations.

Implications

The decision is significant in three principal respects:

Expert evidence

The judgment provides authoritative guidance on the admissibility and use of skilled evidence in Scottish civil proceedings, including the four-fold admissibility test, the duties of experts modelled on The Ikarian Reefer, and the obligation of instructing solicitors to disclose all relevant material to the expert, including material adverse to the client’s case. It confirms that health and safety practice can be a proper subject of expert evidence.

Health and safety regulations

The Court took an expansive view of when an employee is ‘at work’, extending the protection of the Management Regulations and PPE Regulations to risks encountered during work-related travel and to environmental risks not specifically generated by the task. It confirmed the central importance of suitable and sufficient risk assessment as the foundation of compliance.

Common law of employers’ liability

The judgment modernises the employer’s common law duty, emphasising that the obligation goes beyond what is commonly done or obviously needed; a reasonably prudent employer must actively seek out knowledge of risks and consider available means of reducing them, particularly where statutory risk assessment is required. The decision matters to employers, health and safety practitioners, and personal injury practitioners. Its application is limited to the regulations as they stood at the relevant time (prior to amendment by section 69 of the Enterprise and Regulatory Reform Act 2013, which restricted civil liability for breach of health and safety regulations in England and Wales).

Verdict: Appeal allowed. The Supreme Court restored the Lord Ordinary’s decision holding Cordia liable under regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 and regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992.

Source: Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6