Tracey Kennedy Against Cordia (services) Llp
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Clarke,Lord Brodie |
| Judgment Date | 19 September 2014 |
| Neutral Citation | [2014] CSIH 76 |
| Court | Court of Session |
| Published date | 19 September 2014 |
| Docket Number | PD1079/12 |
| Date | 19 September 2014 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 76
PD1079/12
Lady Smith
Lord Brodie
Lord Clarke
OPINION
delivered by LADY SMITH
in the Reclaiming Motion
by
TRACEY KENNEDY
Pursuer and Respondent;
against
CORDIA (SERVICES) LLP
Defenders and Reclaimers:
Act: Mackay QC, E Mackenzie; Digby Brown LLP
Alt: Smith QC, Martin-Brown; Glasgow City Council Corporate Services
19 September 2014
[1] I have had the advantage of reading Lord Brodie’s opinion and I agree with his conclusions and reasoning.
[2] In particular, it is clear to me that the respondent did not establish that her injuries were due to any breach of duty by the reclaimers, whether under the 1992 or 1999 Regulations, or at common law. Fundamentally, the risk to the respondent was an ordinary risk arising, in a public place, from the ordinary facts of life in Scotland. It was a risk encountered, at the time of her accident, by any person walking on snow covered pavements, whatever the reason or reasons they had to do so. There was nothing about the nature of her work which caused the risk or exacerbated it – unlike the employee in the Henser - Leather case - who, unlike the ordinary member of the public, had to carry substantial amounts of cash collected from commercial premises, across a public pavement. In the present case, the risk was not a risk that arose from any hazard inherent in the particular job that the respondent was employed to do, namely to provide personal care to an elderly woman, in her home. Nor was this a risk which was, as a matter of fact, amenable to control or minimisation at the hands of the reclaimer; the state of the public streets and pavements was not their domain. This was far removed from the type of risk to which the 1992 Regulations apply as is emphasised by, for instance, the terms of reg 8.
[3] In any event, the reclaimers did assess this risk in a way which, I also agree, satisfied the requirements of the 1999 Regulations – breach of which could not, in any event, of itself give rise to liability - and the reclaimers also provided what was, in all the circumstances, adequate training. Further, importantly, on the evidence, it was not established that the risk of the respondent slipping would, as a matter of fact, have been materially reduced by the addition to her flat, ridged rubber soled boots, of Yaktrax or any other “add on”.
[4] The evidence of Mr Greasly does not cast any of the above in a different light principally because, for the reasons explained by Lord Brodie, the Lord Ordinary certainly ought to have found that it was not admissible as expert evidence in the case. If the respondent’s reliance on it is an example of a more widespread assumption that it is always necessary to lead a witness to, in effect, tell the court what to think about how an employer should approach the fulfilment of his statutory and common law duties, that is an ill founded assumption and is a matter of considerable concern. It is not as if this is the first time that the court has had to explain the limits to the circumstances in which expert evidence is admissible and, indeed, the circumstances in which evidence can properly be regarded as expert evidence. Further, even if Mr Greasly’s evidence had been admissible, it did not support the respondent’s case that her injuries were in fact caused by the reclaimers’ breach of any duty.
[5] Separately, I agree that there was no basis in fact or law for the Lord Ordinary’s conclusion that there was a breach of duty at common law. His reasons for doing so are not at all clear but what is clear is that he did not address the necessary basic questions identified by Lord President Dunedin in Morton v Dixon at p809. Nor did he ask himself whether, in all the circumstances, it would be fair, just and reasonable to hold that the reclaimers were bound to determine the precise footwear to be worn by each employee each time they embarked on a journey, through the public streets, to reach the place where they were to perform the duties of their role. If he had addressed these questions, he could only, properly, have answered them in the negative. If the Lord Ordinary was correct, it would mean that the reclaimers were, unreasonably, obliged to monitor the weather and street conditions at all places where they were, at any time, providing care services at home, at all times, check whether there was a risk of slipping, instruct their employees what to wear on their feet, supply that footwear and run checks of whether or not they were wearing what they had been instructed to wear. That, with all due respect to the Lord Ordinary, would obviously have been impractical and unworkable. If the Lord Ordinary was correct, it would mean that the reclaimers were, unreasonably, not entitled to rely on their employees’ common sense and their ability, as normal adults, to wear what, as individuals, they found to be appropriate footwear for slippery conditions, in circumstances where the training provided by the reclaimers had included advice and instruction about such matters. It is not simply a matter of the existence of a risk, as seems to have been the Lord Ordinary’s approach; no employer is under a duty at common law to address , ameliorate or eliminate every risk which an employee may encounter in the course of the working day.
[6] I am, in all the circumstances, satisfied that this reclaiming motion must succeed.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 76
PD1079/12
Lady Smith
Lord Brodie
Lord Clarke
OPINION
delivered by LORD BRODIE
in the Reclaiming Motion
by
TRACEY KENNEDY
Pursuer and Respondent;
against
CORDIA (SERVICES) LLP
Defenders and Reclaimers:
Act: Mackay QC, E Mackenzie; Digby Brown LLP
Alt: Smith QC, Martin-Brown; Glasgow City Council Corporate Services
19 September 2014
Introduction
[7] On 18 December 2010 Ms Kennedy (the respondent) was working for Cordia (Services) LLP (the reclaimers) as a carer, providing care to elderly and infirm persons in their own homes. During the evening of that day she and a colleague went to visit a terminally ill elderly housebound person in order to provide her with personal care. The elderly person lived in the Crookston area of Glasgow. The weather was freezing cold and icy. Snow was falling. The respondent and her colleague travelled by car and, having parked their vehicle, continued on foot down a path towards the home of the person they were to visit. The respondent was wearing ankle boots made from synthetic waterproof fabric with a flat but ridged rubber sole. As she was making her way down the path the respondent lost her footing, fell and injured her wrist.
[8] Following a proof restricted to the issue of liability, the Lord Ordinary found the reclaimers liable to make reparation to the respondent in respect of her injury by reason of the reclaimers’ breach of their duties towards the respondent under the Management of Health & Safety at Work Regulations 1999 and the Personal Protective Equipment at Work Regulations 1992, and at common law. He made no finding of contributory negligence. Put shortly, the case that succeeded was that the reclaimers were in breach of duty by failing to provide the respondent with, instruct the respondent in the use of, and ensure that respondent used, attachments to be worn over her footwear (described by the Lord Ordinary as “add-ons”) in order to give enhanced grip in conditions of snow and ice such as prevailed on 18 December 2010. That case had been supported by Mr Sydney Lenford Greasly, the only witness led on behalf of the respondent other than the respondent herself. Despite an objection to his evidence on the ground that he did not have any relevant special skill or experience or specialised learning, the Lord Ordinary 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”. He accepted Mr Greasly’s evidence “in the entirety”.
[9] The reclaimers have reclaimed. No point is taken in relation to contributory negligence. The reclaiming motion raises one determinative issue: did the Lord Ordinary err in law in holding that breach of duty imposed, respectively, by the 1999 Regulations, the 1992 Regulations or the common law, had caused the respondent’s injury? and one ancillary issue: did the Lord Ordinary err in holding that the evidence of Mr Greasly was admissible in relation to incidence and breach of duty? I turn first to the ancillary issue.
Was Mr Greasly’s evidence on incidence and breach of duty admissible?
[10] Some of Mr Greasly’s evidence clearly was admissible. It was not dependent upon him having any particular expertise. He was speaking to fact, either from direct experience or hearsay. He had visited the path where the respondent had fallen (although not in conditions of snow and ice), had photographed it, and had measured its slope and cross-slope. He was able to report on what he had seen. He also spoke to the availability on the market of a variety of attachments to be fitted over shoes. They included “Yaktrax”, “Magic Spiker”, “STABILicers”, and “Sandy ice grips”. These products differ from one another in their design and therefore their precise means of operation but their common features are that ceramic plates, steel coils, spikes, studs or chains are fitted over the soles of ordinary footwear by means of elasticated straps with a view to increasing the grip of the user’s footwear in conditions of snow and ice. The name “Yaktrax” was used both to identify a particular product and as a generic descriptor. Mr Greasly’s knowledge of these products was largely based on what he had learned from consulting the Internet and from his communications with manufacturers, but he had acquired a pair of Yaktrax some eighteen months prior to his giving evidence and therefore was able to report, on the basis of his having used them, that he had found them helpful in increasing...
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