Kennedy v. Cordia (services) LLP [2016]

The Supreme Court has issued its unanimous decision and handed down what is being described as a landmark opinion. The facts of the case are straightforward and at this point well known – a carer slipped on an icy path when attending the home of a patient during the particularly severe winter of 2010 and sued her employers for damages.

The pursuer based her claim on a breach of (i) statutory duty (specifically of the Personal Protective Equipment at Work Regulations 1992 and the Management of Health and Safety at Work Regulations 1999) and (ii) common law.   She alleged that her employers had failed to carry out a suitable and sufficient risk assessment and to provide adequate footwear which she argued would have prevented the fall.

At First Instance the pursuer was successful. On appeal, however, the Inner House of the Court of Session overturned that decision.   In reversing the Inner House's decision and allowing the appeal, the Supreme Court provided guidance on what is important in cases of this nature - in particular in relation to the admissibility of expert witnesses and also on how far an employer is required to go to protect employees against potential risks.

Expert Evidence

The Supreme Court found that the pursuer's expert in health and safety, Lenford Greasley was properly regarded as a skilled witness, thus overturning the Inner House's somewhat damning verdict in relation to such experts. They had expressed concern at the apparent common practice of producing “expert” reports in actions which did not display any expert quality.  Practitioners were left in a state of uncertainty regarding the possible consequences they might face in this regard.

The Supreme Court took the view that expert witnesses are integral to civil cases and set down the relevant test for when their evidence will be admissible:-

  • whether the proposed skilled witness will provide evidence which will assist the court;
  • whether the witness has the necessary knowledge and experience;
  • whether the witness is impartial in his or presentation and assessment of the evidence;
  • whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

It is difficult to envisage a situation whereby an expert would not meet these requirements but it is useful to have the Supreme Court's affirmation of what practitioners should be considering when instructing experts.  

Regulations

The Supreme Court provided interpretation on the Regulations noting that

 ‘As the Lord Ordinary correctly stated, safety is to be levelled upwards.’

They took the view that risks are to be avoided rather than reduced and risk assessments were a crucial part of that process.  Cordia had known about the risk of slipping, which their own health and safety manager had described as being a "dead cert."   The risk had been identified by them in 2005 and 2010 but not properly evaluated. The Court was entitled to find that an adequate risk assessment should have been undertaken and had that occurred, then appropriate measures would have been implemented,  such as providing employees with anti-slip footwear.

The Supreme Court upheld the Lord Ordinary's opinion that the time when the employee is exposed to the risk and not the cause of the risk is relevant. The risk does not need to be created by the actual work task. The duty will apply if the risk occurs during the time when a pursuer is in the course of employment. In these circumstances the pursuer was exposed to the risk when she was working.  Vulnerable elderly patients relied upon her care being provided and so the risk could not be avoided.

Common Law

The Supreme Court stressed that the over-riding principle was that an employer is bound to take reasonable care for the safety of his employees.  This will bring comfort to pursuers given claims by employees now require to be brought at common law post ERRA.   Essentially the message was clear – the Court will robustly apply the common law and find that where an employer is aware (or ought to have been aware) of hazardous working conditions but does not adopt proper control measures, workplace claims will be successful. 

The Practical Implications

The clear consequence for practitioners is that it will be difficult to argue against the instruction of health and safety experts in the future (and the cost of the same), even in cases where they may not be obviously required.

For employers – the assessment and prevention of risk were identified as ‘fundamental' and so they ought to be actively grading every risk encountered by employees and implement control measures. This decision will be particularly relevant to employers whose staff work outdoors and real consideration must be given to ensure that they are protected. The time invested and the money spent on proceeding with this exercise will undoubtedly be worth it if an employer wants to avoid both accidents and claims in the future.