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Radhika_Kapila_phOn 19 October 2015, the Supreme Court heard the appeal of Kennedy v Cordia (Services) LLP (Scotland). The case concerned a home carer who had been injured by slipping and falling in icy weather conditions during the course of her employment and the degree to which her employers should assume responsibility for her injury. It also examined the nature and remit of expert evidence.

Background

Tracey Kennedy worked for Cordia (Services) LLP as a carer and her role involved travelling to the homes of the elderly and infirm. On the evening of 18 December 2010, Ms Kennedy and a colleague went to the home of a terminally ill housebound woman living in the Crookston area of Glasgow, in order to provide her with personal care at her home. The weather was very cold; it was snowing and the ground was icy. As Ms Kennedy walked down the path of the patient’s home, she slipped and fell, injuring her wrist.

Ms Kennedy brought a claim against Cordia, claiming that it was in breach of its duty as an employer by failing to identify the risk and adequately preparing its employees to face such risks.

Outer House Decision

At first instance, the Outer House of the Court of Session found that Cordia had breached its duties towards Ms Kennedy under the Management of Health and Safety at Work Regulations 1999, the Personal Protective Equipment at Work Regulations 1992 and at common law. Though Cordia argued that Ms Kennedy could have made the decision not to go out that evening in light of the weather conditions, the court did not find that there was any contributory negligence. It was held that Cordia was in breach of its duties as an employer, by failing to (1) instruct Ms Kennedy to wear appropriate attachments over her footwear to prevent her slipping in inclement weather conditions; (2) provide Ms Kennedy with such attachments and (3) ensure that she wore the attachments when working in certain conditions.

The only witness present on behalf of Ms Kennedy (other than herself) was Mr Sydney Lenford Greasly. Despite his lack of any relevant special skill, experience or specialised learning, the court treated Mr Greasly as an expert witness in “the areas of health and safety at work which would not be in the knowledge of the court”. The court accepted Mr Greasly’s evidence “in the entirety”.

The court concluded that Cordia was required, as an employer, to identify and minimise reasonable risks to staff and Ms Kennedy successfully recovered damages, setting the precedent for other injured workers to pursue similar causes of action.

Inner House Appeal

Cordia proceeded to appeal the decision at the Inner House of the Court of Session on two bases. The first concerned causation – Cordia argued that the court had made an error in holding that Ms Kennedy’s injury had been caused by its breach of the duties imposed by the relevant Regulations and common law. Secondly, Cordia claimed that the court had erred in holding that Mr Greasly’s evidence was admissible in relation to the breach of duty.

The three judges who heard the appeal on 19 September 2014 unanimously overturned the decision, holding that Cordia could not be under a common law duty to “determine exactly what their competent adult employees should wear on their feet when negotiating the streets of Glasgow” and that “fundamentally, the risk to the respondent was an ordinary risk arising in a public place from the ordinary facts of life in Scotland“.

In addition, it was held that there was no “inherent hazard” to the particular job that Ms Kennedy had to do that gave rise to the risk she encountered, nor was such a risk one that Cordia were able to control or minimise. As such, the risk was far removed from those to which the 1992 Regulations apply. Additionally, it was held that the way Cordia assessed the risk fulfilled the requirements of the 1999 Regulations, as the only stipulation under the Regulations was to identify the risk – which Cordia had done by carrying out two relevant risk assessments.

The Inner House also held that Mr Greasly’s evidence was not admissible as expert evidence. There are specific criteria that need to be fulfilled for evidence to be considered as ‘expert’ and Mr Greasly’s evidence did not meet these criteria, it being “nothing more than what a reasonably inquisitive and intelligent person might have discovered by, for example, looking material up on the internet.” It was held that “if the opinion of a witness is not based on the principles of some recognised branch of knowledge in which he has particular experience and expertise, it is useless ‘expert’ evidence and should be held inadmissible.” As the court’s initial decision was based on Mr Greasly’s evidence, their conclusions were not considered to have been substantiated.

Ms Kennedy has appealed the Inner House’s decision to the Supreme Court.

Supreme Court appeal

The Supreme Court decision on Ms Kennedy’s appeal will provide clarification of the following issues:

  1. Whether the Inner House erred in finding that Mr Greasly’s evidence was inadmissible, particularly with regard to whether his evidence could be considered expert evidence;
  2. Whether the Inner House erred in interfering with the Lord Ordinary’s finding that Cordia’s risk assessment was not suitable and sufficient;
  3. Whether the Inner House erred in its interpretation of the Personal Protective Equipment at Work Regulations 1992, in particular by finding that the Regulations did not apply to the facts of the present case and that, if they did apply, the risk was adequately controlled by other means;
  4. Whether the Inner House erred in finding that there was no breach of duty at common law; and
  5. Whether the Inner House erred in finding that on the evidence before the Lord Ordinary it could not be said that any breach of statutory or common law duty had caused the incident.

The appeal was heard by a panel of five judges comprising Lady Hale, Lord Wilson, Lord Reed, Lord Toulson and Lord Hodge. A full case comment on the decision will be made available on this blog once judgment is handed down.