Miss Kennedy, a home carer, slipped on snow and ice while walking to a client’s house and injured her wrist. The UK Supreme Court held that her employer had failed to make a suitable assessment of that known risk and to provide anti-slip attachments, and was liable under the Personal Protective Equipment at Work Regulations 1992. The Court also held that evidence of health and safety practice may be given by a suitably qualified expert, and that a home carer obliged to travel in those conditions is not in the same position as a member of the public.
On the evening of 18 December 2010 Miss Kennedy, a home carer employed by Cordia (Services) LLP, was visiting a terminally ill client in Glasgow. A colleague parked beside a sloping public footpath covered in fresh snow over ice. The path had not been gritted or salted. Wearing flat boots with ridged soles, Miss Kennedy slipped and injured her wrist.
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Cordia knew of the danger. Since 2005 an average of four slipping accidents a year had been reported among home carers, and there were 16 in 2010. A 2005 assessment, using a British Standard scale, rated slips in bad weather as ‘tolerable’: the possible harm was ‘harmful’, but it was treated as ‘highly unlikely’. The only measures recorded were a hazard booklet and an instruction to wear appropriate footwear, with suitability left to the employee. A 2010 assessment did not expressly consider slips in inclement weather. Neither assessment considered personal protective equipment such as non-slip attachments. Cordia’s health and safety manager later accepted that someone falling was ‘a dead cert’ and that, without controls, the risk was ‘substantial’, but said that the footwear advice had reduced it as far as was reasonably practicable.
The decisions below
The proof was restricted to liability. The Lord Ordinary, Lord McEwan, accepted Miss Kennedy’s evidence that she would have worn attachments if provided, and accepted the evidence of Mr Lenford Greasly, a consulting engineer with health and safety experience. He found that the assessments were not suitable and sufficient, that the risk had not been adequately controlled by other means, and that Cordia were liable under the Management of Health and Safety at Work Regulations 1999, the 1992 Regulations and the common law.
An Extra Division of the Inner House reversed that decision. It held that much of Mr Greasly’s evidence was inadmissible and that the Lord Ordinary had left the decision to him. It treated the 1992 Regulations as concerned only with risks created by the nature of the caring task, not with a journey on which any member of the public might slip. It also held that the common law claim failed because providing attachments was neither a common precaution nor an obviously essential one, and because there was no finding that attachments would necessarily have prevented the fall.
Expert evidence
Lord Reed and Lord Hodge, with whom Lady Hale, Lord Wilson and Lord Toulson agreed, rejected the proposition that health and safety practice cannot be the subject of expert evidence. Cordia’s counsel conceded that this proposition was too wide.
A skilled witness may give opinion evidence and may also give evidence of fact drawn from a wider body of knowledge, including research and the practice of others. Such evidence is admissible only if it will assist the court, the witness has the necessary knowledge and experience, the witness is impartial, and a reliable body of knowledge or experience underpins it. Opinion evidence must be necessary: if the judge can reach a sound conclusion without it, it should not be admitted. Skilled evidence of fact may be admitted where it is likely to help the court decide the case efficiently. The witness must explain the reasoning. A bare assertion is worthless, and the expert must not replace the judge as decision-maker.
Mr Greasly’s evidence of the locus, the availability and effect of attachments, published research, official guidance and other employers’ practice was admissible. So was his reasoned view, as someone experienced in risk assessment, that the wintry risk should have been rated ‘substantial’ rather than ‘tolerable’. Comments which appeared to state Cordia’s legal duty should have been avoided, but the Lord Ordinary decided the legal issues himself.
The regulations
The regulations implement EU directives whose aim, as the Lord Ordinary correctly said, is to level safety upwards. Risks should be avoided where possible and evaluated where they cannot. Collective protection comes before individual protection, and instructions to workers are the last resort. The assessment is the starting point for the precautions. At the relevant time, breach of a duty imposed by health and safety regulations was actionable by an employee so far as it caused damage.
Miss Kennedy was exposed to the risk while at work. It was obvious and known to Cordia, and it could not be avoided because clients had to be visited if possible. Cordia nevertheless moved straight to unspecific advice about footwear, without considering protective equipment or checking what employees wore. The Lord Ordinary was entitled to find a breach of regulation 3(1) of the 1999 Regulations.
The Inner House was wrong to confine the 1992 Regulations to risks created by the caring task and different from risks faced by the public. ‘While at work’ identifies when the employee is exposed to the risk, not what causes it. Travelling between clients was an integral part of Miss Kennedy’s employment. The European legislation is not limited to risks created by the work activity rather than the weather: its guidance includes removable spikes for ice and snow and work outdoors in cold weather. Even if it were narrower, national rules may give workers greater protection. Duties to store equipment and take reasonable steps to see that it is used can be satisfied, where immediate supervision is impracticable, by arrangements with the employee and by training and instruction.
A suitable assessment would have led to consideration of individual protection. The Lord Ordinary found that relatively simple devices capable of reducing the risk were available, and none was provided. Regulation 4(1) therefore required suitable equipment unless Cordia showed that the risk was already adequately controlled by equally or more effective means. Its evidence of training was vague, it had never considered attachments, and the accepted evidence was that suitable devices were available at modest cost, were used by other employers, and would on the balance of probabilities have reduced, and might have eliminated, the risk of a fall. The exception was not made out.
Common law and causation
Miss Kennedy was not in the same position as a member of the public. She could not stay indoors, choose her route or avoid the untreated path. The employer’s basic duty is to take reasonable care, not merely to adopt precautions that are customary or obviously essential. There was no doubt that a duty of care existed; the question was whether it had been fulfilled. Cordia knew of repeated accidents with potentially serious consequences. Inquiry, or a proper assessment, would have revealed effective and inexpensive attachments used by other employers. The Lord Ordinary was entitled to find Cordia negligent in failing to provide them.
Causation is decided on the balance of probabilities, not by asking whether the fall would necessarily have been prevented. The Lord Ordinary made no express finding beyond accepting that Miss Kennedy would have worn the equipment. The breach of the 1999 Regulations led to the failure to provide equipment, so the causal question turned on regulation 4(1). Equipment is suitable only if, so far as practicable, it prevents or adequately controls the risk, and adequate control means that injury is highly unlikely. Where an employee is injured by the risk against which such equipment should have protected her, and she would have used it, the failure will normally be inferred to have made a material contribution. That was the only reasonable inference here.
Treated only as a common law claim, causation was less secure. The Lord Ordinary had not expressly considered it, and it could not be said that he would necessarily have found the omission to be a material cause. There was therefore no proper foundation for common law damages, but that did not matter because liability was established under the 1992 Regulations.
Verdict: The Court unanimously allowed Kennedy’s appeal. Cordia was liable under the 1992 protective-equipment regulations. The finding of breach at common law lacked a sufficient finding on causation to support damages on that separate basis. Compensation was not assessed in this appeal.
