Appellant Respondent

Frank Burton QC Andrew Smith QC
Ian Mackay QC Jillian Martin-Brown
Euan G Mackenzie
(Instructed by Digby (Instructed by Glasgow

Brown LLP) City Council)
LORD REED AND LORD HODGE: (with whom Lady Hale, Lord Wilson and Lord Toulson agree)
1. This appeal from the Court of Session arises from an accident of an everyday kind, but raises a number of issues of practical importance relating to the Personal
Protective Equipment at Work Regulations 1992 (“the PPE Regulations”) (SI
1992/2966) and the Management of Health and Safety at Work Regulations 1999
(“the Management Regulations”) (SI 1999/3242), to employers’ liability at common
law, and to expert evidence in this field.
The accident
2. The appellant, Miss Kennedy, was employed by the respondents, Cordia

(Services) LLP (“Cordia”), as a home carer in Glasgow. Cordia are wholly owned
by Glasgow City Council, and provide home care services on its behalf. Those
services were previously provided by the Council itself. Miss Kennedy’s principal
duty was to visit individuals in their homes and to provide them with personal care.
3. At about 8 pm on 18 December 2010 Miss Kennedy was required to visit an elderly lady, Mrs Craig, who was terminally ill and incontinent, at her home in order to provide her with palliative and personal care. The visit was one of a series of visits
carried out by Miss Kennedy during her shift. She travelled to Mrs Craig’s house
after visiting another client.
4. There had been severe wintry conditions in central Scotland for a number of weeks prior to that date, with snow and ice lying on the ground. Miss Kennedy was driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope, and was covered in fresh snow overlying ice. It had not been gritted or salted. Miss Kennedy was wearing flat boots with ridged soles. After taking a few steps along the footpath, she slipped and fell to the ground, injuring her wrist.
Risk assessments and precautions
5. Cordia were aware of the risk that their home carers might slip and fall on

snow and ice when travelling to and from clients’ houses in winter. On average, four
such accidents had been reported to them, or to their predecessors the Council, during each year since 2005. During 2010 there were 16 such accidents. Cordia were also aware of the snowy and icy conditions on the night in question, as those conditions had persisted for weeks.
6. In 2005 the Council carried out a risk assessment in relation to home care services and client care. It covered risks involved in “travelling to and from work locations”. The assessment noted the risk…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kennedy v Cordia (Services) LLP

Details

AGLC: Kennedy v Cordia (Services) LLP [2016] UKSC 6
Case: [2016] UKSC 6
Decision Date

CaseChat Overview and Summary

Kennedy v Cordia (Services) LLP involved a home carer who slipped and fell on ice while on her way to visit a client. She sued her employer for breach of statutory duties under the Personal Protective Equipment at Work Regulations 1992 and the Management of Health and Safety at Work Regulations 1999, as well as for common law negligence. The Court of Session found the employer liable under all three heads of claim. The Inner House reversed the decision, holding that the employer was not liable under the Regulations and that the expert evidence on which the Court of Session relied was inadmissible. The Supreme Court allowed an appeal by the home carer, holding that the expert evidence was properly admitted and that the employer breached the statutory duties under the Regulations and common law. The Supreme Court first addressed the admissibility of expert evidence in health and safety matters, finding that such evidence could be admitted if it would assist the court, the expert had the relevant knowledge and experience, the expert was impartial, and there was a reliable body of knowledge or experience to underpin the expert’s evidence. The Supreme Court held that the expert in this case had the necessary knowledge and experience to give evidence on health and safety practice and that his evidence was relevant and admissible. The Supreme Court then turned to the substantive legal issues, beginning with the Framework Directive and the PPE Directive. It held that the employer was required to provide suitable personal protective equipment to its employees where the risks to which they were exposed could not be avoided or sufficiently limited by other means. The Supreme Court found that the employer had failed to provide suitable personal protective equipment in this case, as it had failed to provide anti-slip attachments which were available and effective in reducing the risk of slipping. The Supreme Court also held that the employer was liable under the common law for failing to take reasonable care for the safety of its employees. It found that the employer should have taken steps to reduce the risk of its employees slipping and falling on snow and ice, including by providing anti-slip attachments. The Supreme Court concluded that the employer’s breach of duty caused or materially contributed to the home carer’s accident.

Orders