Case Comment: Kennedy v Cordia (Services) LLP  UKSC 6
15 Monday Feb 2016
The Supreme Court unanimously allowed Ms Kennedy’s appeal upholding the first instance finding that her employer, by failing to provide protective footwear, was liable for injury which she sustained at work.
Ms Kennedy, a home carer, slipped and fell on an icy path during a home visit and claimed damages against her employer. The accident was of an ‘everyday kind’ but raised two issues of importance. Firstly, could health and safety practice properly be the subject of expert evidence? Secondly, how far is an employer required to go in order to protect their employees against everyday hazards and risks?
Question 1 was answered affirmatively. The evidence of Ms Kennedy’s expert on factual matters and health and safety practice was admissible: it was necessary, it assisted the judge and the expert had the required experience and qualifications. His evidence could provide a basis for the Lord Ordinary to address the legal issues of whether Cordia had properly assessed risk and identified adequate control measures.
The Lord Ordinary was entitled to conclude at first instance that Cordia had breached the Management of Health and Safety at Work Regulations 1999 and the Personal Protective Equipment at Work Regulations 1992. The risk of home carers slipping in inclement weather in the course of their duties was known to Cordia and the potential for serious injury was accepted. Cordia had failed to properly evaluate and control this risk.
The Court held that Cordia should have evaluated the level of risk as ‘substantial’ (rather than ‘tolerable’) and therefore should have considered individual control measures. In addition, given the risk could not be avoided (because care was essential), Cordia required to provide personal protective equipment (PPE) to reduce the risk or to control the risk by other equally or more effective means. Anti-slip footwear attachments should have been, but were not, provided nor were equally protective steps implemented.
The evidence presented and admitted from Ms Kennedy’s expert confirmed that footwear attachments, available at modest cost, would have reduced the risk of home carers slipping and falling on ice. The Lord Ordinary was therefore entitled to conclude that Cordia, in their failure to provide such equipment to Ms Kennedy, had not only breached the PPE regulations but were guilty of negligence at common law.
The Supreme Court confirmed that “safety is to be levelled upwards” (per Lord Reed and Lord Hodge at paragraph 76). Strict liability under the health and safety regulations has been removed post-ERRA but, where an employer is (or ought to have been) aware of hazardous working conditions but fails to adopt adequate controls, workplace claims will succeed.
For employers, particularly those with staff who work off-site, due consideration should now be given to whether current risk assessments require updating. All risks encountered by employees during their work duties, irrespective of their cause, must be identified, appropriately graded and adequately controlled.