Kennedy v Cordia (Services) LLP

 
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[2016] UKSC 6

THE SUPREME COURT

Hilary Term

On appeal from: [2014] CSIH 76

before

Lady Hale, Deputy President

Lord Wilson

Lord Reed

Lord Toulson

Lord Hodge

Kennedy
(Appellant)
and
Cordia (Services) LLP
(Respondent) (Scotland)

Appellant

Frank Burton QC Ian Mackay QC Euan G Mackenzie

(Instructed by Digby Brown LLP)

Respondent

Andrew Smith QC

Jillian Martin-Brown

(Instructed by Glasgow City Council)

Heard on 19 October 2015

Lord Hodge

Lord Reed AND (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 of sprains, cuts, broken limbs, fractures and head injuries from slips and falls in inclement weather. The current preventive and protective measures were noted as being the provision of a hazard awareness booklet and instruction on appropriate footwear. The risk was assessed, using the risk rating scale appended to the guidance document "Guide to Occupational Health and Safety Management Systems" published by the British Standards Institution (BS 8800:2004). The resultant assessment was that the risk was "tolerable", on the basis that the severity of harm, and its likelihood, were respectively categorised under the scale as "harmful" and "highly unlikely". The assessment of the risk as "tolerable", in terms of the British Standard, implied that it had been reduced to the lowest level that was reasonably practicable, and that no additional controls were required.

7

A further risk assessment was carried out by Cordia in July 2010. It did not expressly consider the risk of injury from slips and falls in inclement weather, but was otherwise in similar terms to the 2005 assessment. Neither assessment considered the possible provision of personal protective equipment ("PPE"), such as non-slip attachments for footwear.

8

Miss Kennedy underwent an induction programme of a kind which usually included a discussion of slips and falls on ice in winter, and the importance of wearing appropriate footwear. A hazard awareness booklet provided to employees stated that extra care should be taken when walking to and from work locations in inclement weather, and that staff should ensure that safe adequate footwear was worn. What constituted safe adequate footwear was left to the judgment of the individual employee.

The evidence of the expert witnesses
9

Evidence was led on behalf of Miss Kennedy, under objection, from a consulting engineer, Mr Lenford Greasly. His qualifications included a degree in engineering and a diploma in safety and hygiene. He was a chartered member of the Institute of Safety and Health, and an associate member of the UK Slip Resistance Group. He was a former member of the Health and Safety Executive, in which he had worked as an Inspector of Factories. He had held senior management positions in industry, in areas including health and safety. He had worked for many years as an engineering consultant advising companies on health and safety, including carrying out slip testing and advising on the adequacy of risk assessments. He had carried out or revised between 50 and 100 risk assessments.

10

In a report which he had prepared, Mr Greasly referred to the relevant legislation and to advice published by the HSE, including advice concerning reducing the risk of slips on ice and snow by providing anti-slip footwear. In that regard, there was advice to consider finding out what footwear other similar businesses were using and whether it worked. Mr Greasly's report described various types of anti-slip attachment which had been available for some years at a modest cost, and which were said to increase grip in icy conditions. He cited several published papers reporting on research into the slipperiness of footwear on icy and other surfaces, and the effect on slip-resistance of using different types of sole and different types of attachment. These included an American study which showed a reduction in falls of 90% among elderly people who wore attachments sold under the trade name Yaktrax. He described his own experience of using Yaktrax, and said that he had found them helpful in increasing traction in icy conditions. His report also included evidence that a number of employers whose staff had to work outdoors in snow and ice had provided them with anti-slip attachments. They included Royal Mail and a number of local authorities. He concluded that such attachments reduced the risk of slipping on snow or ice, and that Cordia could have investigated the adequacy of such devices and provided Miss Kennedy with them. At para 4.9, he stated:

"[Cordia] made a risk assessment but the identified preventative measures relied exclusively on the employee, via information and instruction, when dealing with inclement conditions."

11

In a supplementary report, Mr Greasly noted the information which had been provided by Cordia about the number of home carers who slipped and fell on snow and ice each year. In the light of that information, he referred to the PPE Regulations, stating at paras 3.11–3.12:

"3.11. The Personal Protective Equipment at Work Regulations 1992 address the supply and use of PPE. At regulation 4(1) it states 'Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.'

3.12. The risk of slipping on ice and snow was not controlled by other means, the controls that [Cordia] indicate were undertaken were informative; the risk of slipping on slippery surfaces (as identified by [Cordia]) remained."

12

Mr Greasly also referred to further published research. He concluded that the research showed that the use of appropriate anti-slip devices would help to avoid slips and falls. He expressed the opinion that, had Miss Kennedy worn such devices then, on the balance of probabilities, the risk of her falling on ice and snow would have been reduced and might have been eliminated. He also included information that at least six Scottish local authorities (including one to which he had referred in his earlier report) provided their home carers with anti-slip attachments, although in two cases the practice had been introduced after 2010.

13

Mr Greasly expanded upon his reports in his oral evidence. He explained how, in engineering terms, anti-slip attachments reduced the risk of slipping. Asked whether the wearing of such attachments would have any effect in the conditions experienced by Miss Kennedy, he replied that it ought to, as it would increase grip. In cross-examination, he is recorded as having assented to the suggestion that he could not say whether Yaktrax would have made any difference to Miss Kennedy on the occasion in question. In re-examination, however, he expressed puzzlement at that answer, and said that it was likely to have reduced and maybe eliminated the risk. More generally, he accepted that different types of device were more or less effective in different conditions. The provision of such equipment would however reduce the risk. It was for the employer to determine the particular device which was most suitable.

14

Mr Greasly was critical of the omission from the 2010 risk assessment of a consideration of slips and falls in inclement weather. He was also critical of the categorisation of the risk of slipping and falling as "tolerable".

15

Evidence was led on behalf of Cordia from their health and safety manager, Miss...

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