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10 February, 2016

Kennedy v Cordia (Services) LLP [2016] UKSC 6

This case raises interesting points in relation to employer’s liability and expert evidence in civil cases.

The facts of the case are simple. The pursuer was a home carer employed by the defenders to visit clients in their home to provide personal care. In the winter of 2010 the pursuer suffered injury during the course of her employment when she slipped and fell on snow and ice on a path while on her way to visit a client. Among the precautions the pursuer averred should have been implemented was the provision by the defenders of non-slip attachments for footwear.

The pursuer alleged a breach by the defenders of their duties under the Personal Protective Equipment at Work Regulations 1992, the Management of Health and Safety at Work Regulations 1999 and at common law.

A proof restricted to liability was held before Lord McEwan who found the defenders in breach of both sets of regulations and the common law.

The defenders reclaimed and an Extra Division allowed the appeal, holding that (1) the 1992 Regulations did not apply to the task the pursuer was undertaking at the time of the accident, (2) the 1999 Regulations had not been breached (and, in any event, could not give rise to a direct cause of injury) and (3) there was no breach of duty at common law having regard to the test for liability set out by Lord President Dunedin in Morton v William Dixon Ltd 1909 SC 807 (i.e. that where the alleged negligence consists of a fault of omission, it is necessary that the thing that was not done was a thing which was commonly done by other persons in like circumstances or that it was a thing which was so obviously required that it would be folly for anyone not to have done it).  10

The pursuer appealed to the Supreme Court who unanimously allowed the appeal and restored the decision of the Lord Ordinary.

The Judgment of the Supreme Court (given by Lords Reed and Hodge, with whom the other Justices agreed) contains the following matters of wider application and significance.

Firstly, the Court set out four considerations which govern the admissibility of skilled evidence, namely: (i) whether the proposed skilled evidence will assist the court in its task, (ii) whether the witness has the necessary knowledge and experience, (iii) whether the witness is impartial in his or her presentation and assessment of the evidence, and (iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

Secondly, the Court gave an authoritative interpretation of the 1992 and 1999 Regulations, emphasising that the purpose of the regulations is to improve the health and safety of employees while at work, the assessment of risk is a fundamental principle and that a hierarchical approach should be taken to risk prevention (whereby risks are to be avoided rather than reduced, means of collective protection are to be preferred to means of individual protection and merely giving instructions to employees is the last resort).

In addition, where there is a breach of the 1992 Regulations, an inference will arise that the failure to provide suitable PPE caused or materially contributed to the accident.

Thirdly, the Court explained that Morton v William Dixon Ltd did not definitively set out the common law relating to employer’s liability and that the fundamental, or ruling, principle remained that an employer was bound to take reasonable care for the safety of his employees. Furthermore, the context in which the common law of employer’s liability has to be applied has changed since Morton was decided.

The Supreme Court stated:

“[110]… in more recent times it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out a risk assessment is therefore … logically anterior to determining what precautions a reasonable employer would have taken to fulfil his common law duty of care”.

“[111] It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious. A less outdated formulation of the employer’s common law duty of care can be found in Baker v Quantum Clothing Group Ltd [2011] UKSC 17 …”.

That passage should also be read alongside an earlier passage in the Judgment where the Court stated:

“[64] The expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field, which … creates the context in which the court has to assess an employer’s performance of its common law duty of care”.

That is an important and helpful statement of the law for employees who now require to bring claims exclusively at common law in that while breach of the various health and safety at work regulations no longer carry civil liability, the regulations will continue to be of relevance in informing what a reasonably prudent employer ought to have done when exercising reasonable care for the safety of his employees.

That must be correct given that a proactive, risk assessment based, approach to health and safety at work has been part of domestic law for over 20 years now and will, inevitably, have influenced the knowledge, experience and practice of reasonable employers.

It will be interesting to see how this principle is developed and applied in later cases, including, in particular, what other features of the statutory health and safety regime will be held to have informed the knowledge, experience and practice of reasonably prudent employers.

Euan Mackenzie of Ampersand Stable appeared as Junior Counsel for the pursuer, with Frank Burton QC and Ian Mackay QC.

The full decision of the UK Supreme Court can be found here, along with a press summary and footage of the hearing.

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