Kennedy v Cordia (Services) LLP

Supreme Court

10 February 2016

Andrew Lothian and Caroline Coyle take a look at the Supreme Court decision of Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6 and its implications for employers and the insurance industry.

Facts

The pursuer, Tracey Kennedy was employed as a home carer by the defender, Cordia (Services) LLP which is wholly owned by Glasgow City Council and provides home care services on its behalf.  On the evening of 18 December 2010 she visited a homebound sick person with a colleague.  There had been a large snowfall that evening, and severe wintry conditions involving snow and ice lying underfoot had lasted a number of weeks.  They went by car and having parked it proceeded on foot down a public footpath.  Ms Kennedy lost her footing, fell and was injured.  She alleged:

  • There was no risk assessment to cover ice and snow;
  • There was no provision of personal protective equipment;
  • She had no guidance from her employer as to what was suitable workwear;
  • She was given no anti-slip attachments for her footwear which, if provided, she would have worn; and
  • Her training was inadequate.

The crucial issue was:

Had her employers failed in their common law duty to take reasonable care to provide the right equipment to her and failed in their statutory duties under the Management of Health and Safety at Work Regulations 1999 (“the Management Regulations”) and the Personal Protective Equipment Regulations 1992 (“the PPE Regulations”)?

Previous decisions

Hearing at first instance

Lord McEwan found the defender liable under both sets of regulations and also liable at common law. He focused the blame on the failure to provide safe footwear in the face of an obvious and continuing risk. The case was appealed to the Inner House.

On appeal to the Inner House

The appeal court in allowing the appeal made a number of crucial observations:

  • It criticised the reliance on the evidence from a health and safety expert, relied on by the pursuer.  The court made the point that health and safety was not a recognised body of science and the witness’s frequent expressions of opinion did not constitute expert evidence. The report was held to be inadmissible.
  • The Management Regulations did not impose a duty to take precautions and when interpreting the PPE Regulations a distinction fell to be made between work-related risks and other risks to which a worker might be exposed.  The risk in this case was not materially different to that to which any member of the public was exposed.  The regulations therefore did not impose on the employer a duty to provide the pursuer with PPE aimed at reducing the risk of her slipping on snow and ice. 

This decision was a welcome relief to employers and their insurers. It seemed that common sense had prevailed, emphasising there must surely be limits to the responsibilities of employers, especially when the activities they are engaged in are those which we also encounter in our normal day to day lives and are clearly capable of making a reasoned assessment for our safety.  

Supreme Court judgment

The Supreme Court unanimously allowed Ms Kennedy’s appeal. Lord Reed and Lord Hodge (with whom Lady Hale, Lord Wilson and Lord Toulson agreed) gave the judgment of the court.

Reasoning:

  • Reliance on the health and safety expert’s evidence was allowed and credence given to his evidence base on his experience and qualifications in health and safety.  While not able to comment on areas of law, his evidence on factual matters was useful and considered relevant.
  • The Management Regulations require a suitable risk assessment to be done, and the PPE Regulations require suitable protective equipment to be provided to employees who may be exposed to a risk to their health or safety while at work. Both duties were held to have been breached by the employers.
  • Emphasis was placed on the employer's knowledge of the risk.   They had years of experience showing them that home carers suffer such slipping accidents each year.

The fact that anti-slip attachments were available for footwear which would have been suitable to reduce the risk of home carers slipping and falling on ice was important in highlighting the employer's lack of guidance.

At common law the court was not of the view that the appellant was like an ordinary member of the public out walking in extreme weather.  The difference highlighted was her contractual obligation to go out and perform her duties even if the weather or road/pavement conditions were hazardous.  This risk to her was held to be sufficient that her employers should have conducted a proper risk assessment, especially given the history of accidents which the employers were aware of. 

Comment

Two main issues arise from the judgment which are worthy of comment:

First, what would have been the position had the accident occurred after the introduction of section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) on 1 October 2013? And;

Secondly, what are the wider implications and effects of this decision across the personal injury spectrum?

ERRA

With reference to ERRA, if the accident had occurred in today’s climate the pursuer would not have been able to rely on the breach of the regulations as establishing separate causes of action. We knew though already that pursuers and claimants would seek to use the wording of the regulations as evidence of good practice when it came to considering whether there was liability on the part of the employer at common law. 

The Supreme Court’s judgment confirms the likelihood of this approach being followed, and indeed may take the position somewhat further. It seems that the Supreme Court’s position can be summarised by this passage in the judgment where the court stated at paragraph 64 that:

The expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field, which … creates the context in which the court has to assess an employer’s performance of its common law duty of care.

It is likely to be argued by pursuers and claimants that the requirements of the regulations will still form the basis of what the court believes an employer must do to protect his employees at common law.  It would seem to be the court’s intention to emphasise that the common law now has to be viewed as having in some way absorbed the duties of the regulations.  These common law duties include the requirement to carry out a risk assessment (paragraph 110), to seek out knowledge of risks which are not obvious (paragraph 111), and to inquire into possible means of reducing risk (paragraph 112). 

Parliament’s best intentions, that the effects of the ERRA would be to reform health and safety law may, at least in part, have potentially been thwarted by this decision.

However, the point remains that the higher the duty imposed by the regulations, the less likely it is that that duty will be absorbed into the common law. The point is a key one when considering strict liability duties which would otherwise have applied under regulations.

Further, employers are still protected from liability where with reasonable diligence and inquiry the risk was still unforeseeable.

Wider implications

The wider implications of this decision for insurers should not be underestimated.  Slipping cases are notoriously very difficult for employers’ liability insurers.  This decision may expose a variety of employers across local authorities, health organisations and charities to a barrage of claims where their employees are required to walk outdoors, over uneven ground, in conditions of snow and ice. 

Finally, we need to consider whether the admissibility of evidence from a health and safety expert in this case should be seen as encouraging more widespread use of this type of expert. The Supreme Court accepted that this particular expert armed with results of his research could assist the court based on specialised knowledge and experience.

It does not necessarily follow that the bar for the involvement of experts has been lowered more generally. The Supreme Court noted that many judges would be able to decide this type of issue themselves without expert input. And the jurisdiction in which the case is progressing may also be relevant: the close control over the use of experts under the Civil Procedure Rules in England and Wales may well be a key factor.