Kennedy v Cordia (Services) LLP

The Supreme Court allowed the appeal and restored the Lord Ordinary’s findings that the employer, Cordia, breached duties under the Management of Health and Safety at Work Regulations 1999 (notably regulation 3(1)) and the Personal Protective Equipment at Work Regulations 1992 (notably regulation 4(1)). The Court held that a home carer travelling between clients’ homes is "at work" for the purposes of those Regulations and that, in the circumstances of repeated winter slips and the availability at modest cost of anti-slip footwear attachments, the employer should have considered and, if suitable, provided personal protective equipment. The Court also upheld the admissibility and proper use of the skilled evidence given by the claimant’s consultant engineer, subject to the usual limits on experts, and explained the correct approach to the admissibility and role of skilled witnesses. Finally, on causation the Court held that, given the findings as to the suitability and efficacy of the PPE and the claimant’s evidence that she would have worn it, it was reasonable to infer on the balance of probabilities that the failure to provide suitable PPE materially contributed to the injury.

The appellant, a home carer employed by Cordia (owned by Glasgow City Council), slipped on a snow- and ice-covered footpath while travelling between client visits and injured her wrist. She sued for employers’ liability alleging breaches of the Management of Health and Safety at Work Regulations 1999 ("the Management Regulations"), the Personal Protective Equipment at Work Regulations 1992 ("the PPE Regulations"), and in common law. At first instance the Lord Ordinary found for the claimant on all three heads. An Extra Division of the Inner House reversed, criticizing the admission and weight given to expert evidence, the application of the statutory regulations to travel between clients and certain aspects of the common law approach.

Nature of the claim: civil claim for damages/ liability arising from workplace injury; relief sought was a declaration of liability and damages against the employer.

Procedural history: proof in the Outer House (Lord Ordinary) finding liability [2013] CSOH 130; reversed by the Extra Division of the Inner House [2014] CSIH 76; appeal to the Supreme Court [2016] UKSC 6.

Issues framed by the Supreme Court:

• Whether the skilled (expert) factual and opinion evidence of the claimant’s consultant engineer was admissible and if so what its proper role was;
• Whether the Management Regulations (notably regulation 3(1) and Schedule 1 principles) required a suitable and sufficient risk assessment which should have considered personal protective equipment;
• Whether the PPE Regulations (notably regulation 4(1) and related provisions) applied to a worker travelling between clients and, if so, whether Cordia had to provide suitable PPE or show that risks had been adequately controlled by other means;
• Whether a duty in common law had been breached and, if so, whether causation on the balance of probabilities was established.

Reasoning (concise): The Court set out principles on admissibility and use of skilled witnesses (four considerations: assistance to the court; witness’s expertise; impartiality; underpinning reliable body of knowledge). It held that much of the consultant’s factual material and his reasoned opinions about how a risk assessment ought to be carried out were admissible and useful to the judge. On statutory construction the Court held that "while at work" in the Regulations covers time spent in the course of employment, including travelling between clients, and that the hierarchical principles from the Framework Directive (avoid risks, evaluate, prefer collective to individual measures, and last resort being instruction) and the PPE Directive informed the domestic Regulations. Given the evidence of repeated prior slips, the absence of specific consideration of PPE in the risk assessment, the availability and modest cost of anti-slip attachments and the expert evidence that such devices would likely reduce the risk, the Court concluded the Management Regulations and PPE Regulations were breached and that causation could reasonably be inferred.

The Court allowed the appeal and reinstated the Lord Ordinary’s conclusions on the Regulations and on liability under the PPE Regulations; it observed that the common law finding was harder to sustain on causation alone but was unnecessary given statutory liability.

Appeal allowed. The Supreme Court held that (i) the skilled evidence led by the claimant was admissible in the respects identified and properly used by the Lord Ordinary; (ii) the Management Regulations required a suitable and sufficient risk assessment which, given the circumstances, ought to have considered personal protective equipment; (iii) the PPE Regulations applied to the claimant while travelling in the course of her employment and regulation 4(1) was breached because the employer had not shown that the risk had been adequately controlled by other means; and (iv) on the evidence it was reasonable to infer that the failure to provide suitable PPE materially contributed to the injury, so that statutory liability was made out. These conclusions justified restoring the Lord Ordinary’s decision on liability under the Regulations.

Outer House (Lord Ordinary) found for claimant: [2013] CSOH 130; reversed by Extra Division of Inner House (Lady Smith, Lord Brodie and Lord Clarke): [2014] CSIH 76 (2015 SC 154); appeal to the Supreme Court allowed: [2016] UKSC 6.