Supreme Court

Kennedy v Cordia (Services) LLP

[2016] UKSC 6

[2016] WLR (D) 74

2015 Oct 19; 2016 Feb 10

Baroness Hale of Richmond DPSC, Lord Wilson, Lord Reed, Lord Toulson, Lord Hodge, JJSC

Health and safety — Employer’s liability — Personal protection equipment — Home carer injured after slipping on icy path leading to client’s house — Employer aware of risk of falls on snow and ice but merely advising wearing of appropriate footwear — Whether employer’s risk assessment adequate — Whether employer having duty to provide non-slip footwear attachments — Whether breach of duty causing or materially contributing to injury — Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966), reg 4(1) — Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), reg 3(1), Sch 1

Negligence — Safe system of work — Risk of falling on snow and ice — Home carer injured in fall on icy path leading to client’s house — Duty of employer to conduct risk assessment in order to take suitable precautions to avoid injury to employees — Whether duty breached — Whether breach causing or making material contribution to injury

Facts

The pursuer, who was employed in Scotland as a home carer by the defenders, slipped and fell on an icy path leading to a client’s house, sustaining an injury to her wrist. She raised an action for damages against the defenders on the grounds that they had breached their common law duty to provide her with a reasonably safe system of work and reasonably safe work equipment, that their assessment of the risk of home carers falling on snow or ice had been inadequate, in breach of regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, and that they had failed to ensure that suitable personal protective equipment was provided or that the risk had been adequately controlled by other means which were equally or more effective, in breach of regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992. The defenders, who had carried out risk assessments in relation to home care services, accepted that they were aware of the risk of falls on snow and ice but had not considered the provision of personal protective equipment, merely advising carers to wear appropriate footwear, without specifying what might be appropriate. The Lord Ordinary heard evidence from the pursuer’s only witness as an expert in the areas of health and safety at work, and accepted his evidence, including his opinion that non-slip footwear attachments were readily available and would have reduced the risk. The Lord Ordinary found that the defenders had breached their duties under regulation 3(1) of the 1999 Regulations and regulation 4(1) of the 1992 Regulations and at common law. An Extra Division of the Inner House of the Court of Session allowed the defenders’ reclaiming motion, holding that (i) health and safety was not an area of expertise and the evidence of the pursuer’s witness was inadmissible in key respects; (ii) the 1999 Regulations did not impose any duty on employers to take precautionary measures; (iii) the 1992 Regulations only applied to risks which were created or increased by the nature of an employee’s work, whereas the risk of the pursuer’s slipping on snow and ice was not materially different from that to which any member of the public was exposed at the material time; (iv) the Lord Ordinary had failed to consider whether it would be fair, just and reasonable to find there to be a common law duty for the defenders to determine what their employees should wear on their feet when negotiating the streets; and (v), in any event, the Lord Ordinary had not been entitled to find the defenders liable because he had made no finding that the wearing of attachments would necessarily have prevented the pursuer’s fall.

On the pursuer’s appeal—

Held

Held, appeal allowed. (1) The health and safety practice of employers could properly be the subject of expert evidence. The pursuer’s expert had given evidence of factual matters which he had the experience and qualifications to describe and which were admissible because they were relevant and might assist a judge. It was also relevant to the court’s task to hear evidence on health and safety practice in complying with the 1999 and 1992 Regulations. Whilst some of his statements might appear to be inadmissible statements of opinion on the defenders’ legal duty, an experienced judge could readily treat the statements as opinions as to health and safety practice and make up his own mind on the legal questions, as the Lord Ordinary had done (paras 36, 63–70, 122).

(2) An employee was “at work” and, therefore, covered by regulation 3(1) of the 1999 Regulations and regulation 4(1) of the 1992 Regulations throughout the time when she was in the course of her employment. The regulations referred to the time when the employee was exposed to the risk, not to the cause of the risk. Risk assessments in accordance with regulation 3(1) of the 1999 Regulations were intended to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. The risk to the pursuer’s health and safety whilst she was at work as a result of slipping and falling on snow and ice while travelling between clients’ houses was obvious as a matter of common sense and was, in any event, within the knowledge of the defenders. The risk could not be avoided and, therefore, it had to be evaluated and addressed in accordance with Schedule 1 to the Regulations, which set out a hierarchical order in which the measures necessary to protect health and safety should be considered, with the last resort being merely to give instructions to employees. The Lord Ordinary had been entitled to conclude that there had not been a sufficient risk evaluation in breach of regulation 3(1) in circumstances where the risk was likely, the consequences were potentially serious and the defenders had given no consideration to the possibility of individual protective measures before relying on the giving of advice and, even then, not specifying what might be appropriate footwear. That breach had resulted in a failure to provide anti-slipping footwear attachments and, therefore, the Lord Ordinary had also been entitled to conclude that the defenders had breached regulation 4(1) of the 1992 Regulations. Since the Lord Ordinary had made no express findings in relation to causation, other than that he accepted that the pursuer would have used anti-slip attachments if they had been provided, the question was whether, in the light of the other findings which had been made, the only reasonable inference which could be drawn was that the defenders’ breach of their duties had caused or made a material contribution to the accident. The breach of regulation 3(1) of the 1999 Regulations had resulted in a failure to provide personal protective equipment in breach of the 1992 Regulations and, therefore, the issue of causation had turned on the consequences of the latter breach. Where an employee had been injured as a result of being exposed to a risk against which she should have been protected by the provision of personal protection equipment, and it was established that she would have used personal protection equipment if it had been provided, it would normally be reasonable to infer that the failure to provide the personal protection equipment had made a material contribution to the causation of the injury.

Accordingly, in the circumstances, the only inference which could reasonably have been drawn was that the breach of regulation 4(1) of the 1992 Regulations had caused or materially contributed to the pursuer’s accident (paras 89–92, 98–107, 116–120, 122).

Allison v London Underground Ltd [2008] ICR 719, CA approved.

(3) For the purposes of the common law of negligence, the pursuer was not like an ordinary member of the public, since it was her duty as a home carer to visit clients in their homes, despite the hazardous conditions underfoot. A reasonably prudent employer would conduct a risk assessment so that it could take suitable precautions to avoid injury to its employees. The defenders had been aware of a history of accidents due to their home carers slipping on snow and ice, and that the consequences of such accidents were potentially serious. Those circumstances were sufficient to lead an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing that risk. Had such inquiries been made, or a proper risk assessment carried out, on the evidence accepted by the Lord Ordinary, the defenders would have learned that attachments were available, at a modest cost, which had been found to be effective in reducing the risk, and had been provided by a number of other employers to employees in a similar position. In those circumstances, the Lord Ordinary had been entitled to conclude that the defenders had been negligent in failing to provide the pursuer with such attachments. Since the Lord Ordinary’s opinion did not contain any explicit consideration of causation in relation to the breach of the common law duty of care, it was difficult to maintain that there was a proper foundation for his decision that the defenders were liable in damages at common law, but that conclusion was of no practical significance given that the defenders were liable in any event under the 1992 Regulations (paras 108–113, 121–122).

Threlfall v Kingston-upon-Hull City Council [2011] ICR 209 approved.

Dictum of Lord Dunedin in Morton v William Dixon Ltd 1909 SC 807, 809 not applied.

Appellate History

Decision of an Extra Division of the Inner House of the Court of Session [2014] CSIH 76; 2014 SLT 984 reversed.

Appearances

Frank Burton QC, Ian Mackay QC (of the Scots Bar) and Euan G Mackenzie (of the Scots Bar) (instructed by Digby Brown LLP, Glasgow) for the pursuer.

Andrew Smith QC (of the English and Scots Bar) and Jillian Martin-Brown (of the Scots Bar) (instructed by Glasgow City Council, Legal Services, Edinburgh) for the defenders.

Reported by: Jill Sutherland, Barrister