UK: A Slippery Slope?

Last Updated: 25 April 2016
Article by Marco Rinaldi

Would the Supreme Court overturn the Inner House's decision regarding the value of health and safety expertise?

Tracey Kennedy v Cordia (Services) LLP [2016] UKSC 6

The issue

When Ms Kennedy slipped on snow and ice, her employers, Cordia (Services) LLP, were held liable at a hearing before a Lord Ordinary in the Court of Session.

Cordia appealed successfully, the Extra Division of the Court of Session holding that the health and safety expert's evidence was inadmissible, and that in any event there was no breach of the regulations or common law.

A further appeal was taken to the Supreme Court, with Ms Kennedy asking the court to overturn the finding of the Extra Division.

The facts

The winter of 2010 in Scotland was severe. On 18 December 2010, Ms Kennedy was visiting a terminally-ill elderly housebound person during the course of her employment with Cordia. To reach the person's house, she had to navigate a path which was covered with snow and ice. As she did so, she slipped and fractured her wrist.

Before the Lord Ordinary, she led evidence from a "health and safety expert." In evidence, he expressed the opinion that Cordia had not adequately assessed the risk, nor had they provided the correct work equipment – in this case, a clip-on attachment for shoes called "Yaktrax".

The expert stated that this meant that the defenders were in breach of Regulation 3 of the Management of Health & Safety at Work Regulations 1999 (failure to carry out suitable risk assessments), and Regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992 (requiring employers to provide suitable equipment to their employees to avoid risks to their health and safety, and ensure the equipment is properly used).

Cordia had objected to the expert's evidence, arguing it was inadmissible as the expert had no relevant special skill nor specialised learning.

The decision

The Supreme Court unanimously allowed the appeal, overturning the Extra Division's findings.

The Extra Division had expressed concern at the apparent common practice of producing "expert" reports in personal injury actions that do not actually display any expert quality. Lord Clarke put it succinctly: "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 to be inadmissible."

"Health and safety" experts such as the one employed by Ms Kennedy in this case failed on both counts. Not only was "health and safety" not a recognised body of science or experience suitably acknowledged as being useful and reliable, but the expert's opinion evidence was unnecessary. His evidence was only his own personal view, and thus the Extra Division held it as inadmissible.

The Supreme Court disagreed. The expert had the necessary experience and qualification to explain how anti-slip attachments reduced the risk of slipping. The expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field which creates the context in which the court has to assess an employer's performance of its duty of care.

Insofar as some of the expert's statements might be viewed as inadmissible expressions of opinion on legal duties, "an experienced judge could...readily treat the statements as opinion of a skilled witness as to health & safety practice, and make his own mind up on the legal question."

It was incorrect to say, as the Extra Division had, that the PPE Regulations did not apply because Ms Kennedy was not "at work" when travelling between clients. Travelling from one client's home to another's was an integral part of her work. The phrase "while at work" in the Regulations referred to the time when she was exposed to the risk; that is, during the time when she was in the course of her employment. It did not refer to the cause of the risk.

The evidence available, including the expert evidence, allowed the Lord Ordinary to conclude that on the balance of probabilities she would not have fallen if she had been provided with the "Yaktrax". He had therefore been entitled to hold there had been a breach of regulation 4(1).

As to the alleged negligence under common law, while the Supreme Court understood the concern that the law should not be excessively paternalistic, it was wrong to compare Ms Kennedy to an ordinary member of the public. An ordinary member of the public could choose to stay in and avoid the snow and ice, or choose to travel only on footpaths which had been treated or cleared. Ms Kennedy, as part of her employment, had to travel on the untreated footpath to reach the client's door.

A reasonably prudent employer would have carried out a risk assessment – and had they done so, they would have learned that attachments were available at a modest cost to reduce the risk, and had been used by other employers in a similar position.

Finally, the Supreme Court considered the question of causation. There was a causal component to the concept of "suitability" in terms of regulation 4(1) of the PPE regulations; namely that the protection offered must make the risk of injury "highly unlikely". Therefore, where there was evidence that the PPE would have been used if provided, as Ms Kennedy said she would here, and the employee was injured, then it would be reasonable to infer that the failure to provide the anti-slip attachments materially contributed to the accident.

They did however rule that consideration of causation at common law was more Problematic, and there was no proper foundation for the Lord Ordinary's decision that Cordia were liable in damages at common law – but this was of no practical significance given their findings in relation to the regulations.

Our view

The decision of the Extra Division had been hailed by defenders as curbing the instruction of experts in cases where they were not required. The Supreme Court decision is likely to reverse that trend, and demonstrates that it will be very difficult to argue against the instruction (and therefore expense) of health & safety "experts" in the future. The decision is of vital importance to any employer who requires employees to traverse footpaths and carriageways in icy conditions. It will likely be used by trade unions to argue that in such circumstances the failure to provide shoe attachments in icy conditions is a breach of both the regulations and the common law duty of care, and where employees sustain injury as a consequence of a trip or fall on ice or snow, liability should follow. It should be noted however, that the Supreme Court's decision depended upon the factual findings made by the judge who initially heard the case. Those factual findings are not binding in future cases. The comments on causation also appear to signal a shift in the usual approach to causation in cases under the regulations – moving from a "but for" test to one more akin to a material increase in risk test. The differentiation of causation under the regulations, and causation at common law, is also a development which will have to be watched closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Marco Rinaldi
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