Kennedy v Cordia (Services) LLP

An employee is at work throughout the course of employment. Health and safety duties therefore cover environmental risks encountered while travelling between workplaces, even where members of the public face similar risks.

A suitable and sufficient risk assessment must identify the measures needed to avoid or minimise risk. Instructions to employees are a measure of last resort. Where suitable protective equipment should have been provided and the employee would have used it, failure to provide it will normally support an inference that the breach materially contributed to an injury caused by the relevant risk.

Skilled evidence is admissible where it assists the court, is given by a suitably qualified and impartial witness, and rests on reliable knowledge or experience. The expert supplies reasoned assistance; the court retains the ultimate decision.

The appellant home carer was injured when she slipped on a snow-covered, icy footpath while travelling between clients during her working shift. She claimed that her employer had failed to assess the risk properly and to provide anti-slip footwear attachments.

The Outer House held the employer liable under the Management of Health and Safety at Work Regulations 1999, the Personal Protective Equipment at Work Regulations 1992 and the common law: [2013] CSOH 130. The Inner House reversed that decision, holding that much of the safety expert's evidence was inadmissible, that the protective-equipment regime did not cover the risk, and that causation was unproved: [2014] CSIH 76; 2015 SC 154.

The central issues on the appeal were the admissibility and proper use of skilled evidence, the scope and application of the health and safety regulations, the employer's common-law duty and causation.

Appeal allowed unanimously. Lord Reed and Lord Hodge delivered the joint judgment, with which Lady Hale, Lord Wilson and Lord Toulson agreed.

1. Skilled evidence may include opinion evidence, observed facts and factual material derived from the witness's specialised knowledge and experience. Its admissibility is governed by four considerations: whether it will assist the court; whether the witness has the necessary knowledge and experience; whether the witness presents the evidence impartially; and whether a reliable body of knowledge or experience supports it. Opinion evidence must be necessary, while skilled factual evidence may be admitted where it assists the efficient determination of the case.

   The safety expert's evidence about risk assessment practice, anti-slip devices, published research and the practices of other employers was admissible. His legal conclusions were inadmissible to the extent that they purported to determine breach, but the Lord Ordinary had decided the legal questions for himself.

2. The employer breached regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. The known risk of carers slipping on snow and ice was likely and potentially serious. A suitable and sufficient assessment had to consider the preventive hierarchy, including individual protective measures, before relying upon instructions about footwear.

3. The expression while at work refers to the time during which the employee is in the course of employment, rather than to the cause of the risk. Travelling between clients was integral to the appellant's work. The Personal Protective Equipment at Work Regulations 1992 therefore applied even though the icy conditions were not created by the employer and also affected the public.

   Suitable anti-slip devices were available at modest cost and would have reduced the risk. The employer had not considered them and failed to prove that training or other measures controlled the risk equally or more effectively. Regulation 4(1) was breached.

4. At common law, an employer must take reasonable care for employees' safety. The formula in Morton v William Dixon Ltd was not a rule confining liability to precautions commonly taken or so obviously necessary that omission would be folly. Modern risk assessment duties require employers to seek knowledge of risks and possible precautions. The Caparo Industries plc v Dickman test was inapplicable because the existence of an employer's duty was established; the question was whether that duty had been performed.

5. Proof that injury would necessarily have been prevented was not required. Where an employee is injured by the risk for which suitable protective equipment should have been provided, and would have used it, failure to provide the equipment will normally support an inference of material contribution. That inference applied here. The separate common-law finding lacked an explicit causal foundation, but this had no practical consequence because statutory liability was established.

• United Kingdom Supreme Court: In Kennedy v Cordia (Services) LLP [2016] UKSC 6, the court unanimously allowed the appeal and restored the employer's statutory liability.
• Inner House of the Court of Session: The Extra Division reversed the Lord Ordinary: [2014] CSIH 76; 2015 SC 154.
• Outer House of the Court of Session: The Lord Ordinary found the employer liable under both sets of health and safety regulations and at common law after a proof restricted to liability: [2013] CSOH 130.