A home carer who was injured when she fell on an icy public footpath as she approached a client's home has won a claim for damages against her employers on an appeal to the UK Supreme Court.
Five judges agreed that the Lord Ordinary who heard the proof was entitled to rely on expert evidence in holding Cordia (Services) LLP liable to Tracey Kennedy for failing to provide her with protective footwear. The Inner House had allowed the employers' appeal on the basis that it was impractical to impose a duty where the risks to the pursuer were those faced by any member of the public, and there was insufficient evidence that wearing special attachments to her boots would have made a material difference. It also considered that the Lord Ordinary had erred in accepting a Mr Greasly as an expert witness, not having identified any respect in which he added to the knowledge of the court, and in accepting his opinion as opposed to his factual evidence. (Click here for report.)
Lords Reed and Hodge, in a judgment with which Lady Hale, Lord Wilson and Lord Toulson agreed, provided guidance on the evidence of skilled witnesses under Scots law. In the present case Mr Greasly had experience and qualifications in health and safety, and his evidence on factual matters was relevant and admissible, including his evidence on health and safety practice. Whilst some of his statements might appear to be inadmissible expressions of opinion on the employers’ legal duties, an experienced judge could treat the statements as opinions as to health and safety practice, and make up his own mind on the legal questions. His evidence provided a basis for the Lord Ordinary to determine whether the defenders had suitably and sufficiently evaluated the risks and identified the measures needed to protect health and safety.
In considering Ms Kennedy's statutory case, based on the risk assessment duty in the Management of Health and Safety at Work Regulations 1999, and the Personal Protective Equipment at Work ("PPE") Regulations 1992, the judges said it was logical to look at risk assessment first. Ms Kennedy was exposed to an obvious risk of slipping, one that was within the knowledge of the employers, who knew of similar previous accidents each year. No consideration had been given to the possibility of personal protective equipment, and the precautions taken, in the form of advice to wear appropriate footwear, did not specify what might be appropriate. The Lord Ordinary was entitled to conclude that there had been a breach of reg 3(1) of the Management Regulations.
Both sets of regulations referred to exposure to risk while an employee was at work, as Ms Kennedy was when travelling between the home of one client and that of another; contrary to the view of the Inner House, they did not refer to the cause of the risk but included risks arising from the natural environment to which the worker was exposed, as well as risks arising specifically from the nature of the activities carried out. The Lord Ordinary found that anti-slip attachments were available which would have been suitable to reduce the risk of home carers slipping and falling on ice, and that the risk was not adequately controlled by other means which were equally or more effective. He was therefore entitled to conclude that there had been a breach of reg 4(1) of the PPE Regulations.
In relation to the common law case, it was a mistake to view the appellant as being in the same position as an ordinary member of the public. She was required to visit clients in hazardous weather conditions, whether or not roads and footpaths had been treated. Her employers were able, and were obliged by statute, to consider the risks to her safety and the means by which those risks could be reduced. This duty was logically anterior to determining what precautions a reasonable employer would take to fulfil its common law duty of care. The respondents were aware of a history of accidents each year and that the consequences were potentially serious. On the evidence accepted by the Lord Ordinary, attachments were available at a modest cost to reduce the risk, and had been used by similar employers. The Lord Ordinary was entitled to conclude that the respondents were negligent in failing to provide the appellant with such attachments.
In relation to causation, there was insufficient in the Lord Ordinary's reasoning to provide a foundation to hold the employers liable at common law; but although the PPE Regulations also contained a causal component, it was found that Ms Kennedy would have used attachments if they had been provided, and the only inference which could reasonably have been drawn on the evidence was that the breach of reg 4(1) had caused or materially contributed to the accident, and that Cordia were therefore liable to Ms Kennedy under the regulations.