Can the claimant’s employer be blamed?

The case of Kennedy v Cordia (Services) LLP, which recently made it all the way to the Supreme Court, is a useful reminder that where a Claimant is injured on the insured’s domestic property whilst visiting in a professional capacity (for example a postal worker, care worker etc), consideration should always be given to whether the Claimant’s employer might be partially liable. 

It seems that in this particular case the Claimant fell on a public pavement just outside the householder’s property, so the householder was not a Defendant to the claim.  However the principles for assessing an employer’s culpability are nevertheless useful in claims where an accident occurs on the householder’s property, and the householder is a potential Defendant. 

FACTS

The Claimant was a home carer, employed by an organisation which was wholly owned by Glasgow City Council.  In December 2010, during a prolonged period of severe wintery weather conditions in central Scotland, she visited the house of a terminally ill elderly lady.  She slipped and fell on snow and ice on a footpath outside the house, injuring her wrist.  The Claimant sued her employer, claiming that it had failed to carry out a proper risk assessment, and also failed to provide her with appropriate personal protective equipment.  

The employer argued that it had carried out a proper risk assessment prior to the accident, which had identified the risk of falling in bad weather, as a result of which the employer had provided employees with instructions on appropriate footwear. 

The Claimant succeeded at first instance, but the employer successfully appealed that decision.  The Claimant appealed to the Supreme Court. 

The Supreme Court concluded that the employer’s risk assessment had been inadequate.  The employer was well aware of the risk of employees falling on ice and being injured, as apparently there had been an average of four accidents of this nature a year prior to the Claimant’s accident.  

The Court ruled that the employer should have been aware that employees could be seriously injured in falls of this nature, and that it was also aware of the prevailing snowy and icy conditions on the day in question.  

The Court decided that a proper risk assessment would have concluded that personal protective equipment should have been issued to the Claimant, in the form of anti-slip attachments to be fitted over her shoes. 

COMMENTARY

If, in this particular case, the Claimant had fallen on a path on the householder’s property, and she had sued the householder on the basis that they had failed to grit or clear the path, then at the very least the householder would have been able to share responsibility for the claim with the Claimant’s employer. 

It is important to note, however, that an employer will not automatically be liable where a Claimant is injured on domestic premises during the course of their employment.  It would clearly not be reasonable to expect an employer to carry out a bespoke risk assessment in advance of every single visit that an employee makes to domestic premises.  If an employee is making a one-off visit, and falls on a loose manhole cover, or trips over a frayed carpet, then the employer is very unlikely to be held jointly responsible.  

However employers will be expected to have carried out a proper assessment of generic risks that their employees will face when visiting domestic properties (for example the risk of falling on snow and ice in severe winter weather, as in the Kennedy case).  

Furthermore, the employer will be expected to take appropriate steps where there are specific risks at a domestic property that the employer should have known about, or had actual knowledge of.  For example we dealt with a case recently where a care worker slipped on an access ramp at the front of the insured’s property.  We were able to establish that other employees who had visited the property beforehand had notified the employer of the hazardous state of the ramp, and we were able to obtain a contribution to the claim from the employer’s insurers on the basis that the employer should have advised employees not to use the ramp.  

Finally, an employer might have to carry out a bespoke risk assessment for specific domestic properties if its employees are visiting a particular property on numerous occasions, or for prolonged periods of time – for example where care workers are visiting a specific house two or three times a day.  

In all of these cases, it is important to remember that for the employer to be liable, it will have to be shown that the employer could and should have done something to reduce the risk of injury (for example providing non-slip attachments for footwear in the Kennedy case).  

Being realistic, there is a limit to which the employer can interfere with the state of a householder’s property, but the employer could always be liable if they should have provided extra equipment to the employee, or at least warned employees of known hazards (for example telling employees not to use uneven paths or slippery access ramps where alternative access routes are available).