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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (10 February 2016) URL: http://www.bailii.org/uk/cases/UKSC/2016/6.html Cite as: [2016] 1 WLR 597, [2016] PIQR P9, (2016) 149 BMLR 17, 2016 GWD 4-97, 149 BMLR 17, [2016] UKSC 6, [2016] WLR(D) 74, [2016] WLR 597, [2016] ICR 325, 2016 SCLR 203, 2016 SC (UKSC) 59, 2016 SLT 209 |
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[2016] UKSC 6
On appeal from: [2014] CSIH 76
JUDGMENT
Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Toulson
Lord Hodge
JUDGMENT GIVEN ON
10 February 2016
Heard on 19 October 2015
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) |
LORD REED AND LORD HODGE: (with whom Lady Hale, Lord Wilson and Lord Toulson agree)
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
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.”
“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.
16. Miss Rodger accepted that a slip could produce injuries which were properly categorised as “harmful”, such as fractures and head injuries, and also accepted, in the light of the annual statistics referred to in para 5 above, that it was “a dead cert” that someone was going to fall on snow and ice. She accepted that the risk involved in the activity being carried out by Miss Kennedy on the occasion in question was therefore “substantial”, in the absence of measures to control the risk. She also accepted that it would be apparent to any employer, applying his mind to this activity on the day in question, that there was a substantial risk of injury, in the absence of controls. She nevertheless maintained that the advice to wear safe and adequate footwear reduced the risk as far as was reasonably practicable. She confirmed that Cordia had not given any consideration to the provision of footwear or attachments.
The proceedings in the Outer House
17. Miss Kennedy commenced proceedings in the Court of Session, and the case proceeded to a proof restricted to the issue of liability. The Lord Ordinary, Lord McEwan, found Cordia liable under the PPE Regulations, the Management Regulations, and the common law: [2013] CSOH 130.
18. The Lord Ordinary accepted Miss Kennedy’s evidence, including her evidence that, if provided with attachments for her boots, she would have worn them on the night in question. He commented that it was of some importance that she and her colleague were under an urgent and important duty to an elderly sick lady.
“16. He then looked at the risk assessments. Agreeing in general with the later evidence of Miss Rodger, he said account had to be taken of controls to overcome hazards before any rating could be arrived at. However, he said that in his opinion the measures specified did not reduce the risk. Personal Protective Equipment (PPE) should have been provided. He was critical of the omission of ‘inclement weather’ in [the 2010 risk assessment]. Such weather did not cease to be a hazard and simply to rate the risk as ‘tolerable’ did not take account of changes in the risk when seriously adverse weather could and did occur that winter. This risk could be eliminated altogether by not going to the house, but accepting the need to go, the employer (his emphasis) should choose and supply the correct footwear which was available at that time. That was not done. …
20. Being asked again about research papers he said some were surveys and some were lists. He agreed that icy and snowy surfaces varied and shoe attachments varied in their reaction to these. He described in detail how Yaktrax performed and how he had used his own set for 18 months in snow and ice. He said that they reduced the risk although there was no one answer to the problem. Everyone still had to take care. Had he done a risk assessment for Miss Kennedy’s job he would have assessed the risk as likely and the severity as harmful. It was for the employer to find out what PPE was best and in his opinion they should have provided Yaktrax or some other type of fitting.
21. ... under reference to the [British Standard], he said that the assessment of the risk should have been ‘substantial’. Slipping and falling could give a variety of serious injuries. What the employer had to do was reduce or eliminate the risk. That would have been done if Yaktrax had been provided.”
“His [Mr Greasly’s] many general qualifications are listed in his two reports ... He has given evidence on many occasions. He is a member of a group with particular interests in slipping at work. He demonstrated a detailed knowledge of a number of international papers on the subject of slipping and personal protective equipment relating to footwear. The real issue is whether he was in a position to provide expertise in areas of health and safety at work which would not be within the knowledge of the court. In my view he clearly has the qualifications and gives such evidence here. He will be treated therefore as an expert witness.”
“47. The following emerges. He had been to the locus. The conditions required some form of shoe ‘add on’. Yaktrax was but one model available on the market at the time (it should be noted that Miss Kennedy’s case does not depend solely on Yaktrax. She said she would have worn an ‘add on’ if she had been given one).
48. Importantly I accept his criticism of the risk assessments given in his evidence (see para 4.9 of [the first report, quoted in para 10 above]) and he was clear in his evidence and reports that regulation 4 [of the PPE Regulations] was also breached (see eg paras 3.11 and 3.12 in [the supplementary report, quoted in para 11 above]). He spoke to the availability of a number of devices to fit to footwear at the relevant time. It is not necessary to dwell at any length on the various studies or indeed to express my own view of them. In my opinion they present a consistent picture with the American one being particularly helpful.”
25. Considering next the common law, the Lord Ordinary stated:
“72. For the same reasons I find [Cordia] also liable at common law. In the face of an obvious and continuing risk they provided no safe footwear. There is no evidence they checked what was being worn. There was no evidence of any system of working or reporting in when staff had to go out in the extreme weather and walk on snow and ice.”
The proceedings in the Inner House
26. The Lord Ordinary’s decision was reversed by an Extra Division of the Inner House (Lady Smith, Lord Brodie and Lord Clarke): [2014] CSIH 76; 2015 SC 154. The Extra Division considered that the Lord Ordinary had erred in five respects.
29. Thirdly, regulation 4(1) of the PPE Regulations did not apply to the circumstances of the accident. The regulations were concerned with risks to which workers were exposed which were created or increased by the nature of their work. But the risk to which Miss Kennedy was exposed was not of that kind. This point was explained most clearly by Lord Clarke. Like Lord Brodie and Lady Smith, he construed the regulations as being concerned with risks caused by the nature of the task performed by the employee. He regarded that task, in the case of Miss Kennedy, as being confined to the administration of care to her clients, and not as encompassing her journeys to their homes. On that basis, he considered that the carrying out of Miss Kennedy’s duties as a home carer did not create the risk of her slipping somewhere en route to carrying out those duties because of ice or snow on that route. The regulations were in his view designed to deal with risks in circumstances where the employer had a degree of control over the employee, the place of work and the performance of the task which had to be carried out. The risk of Miss Kennedy’s slipping on ice and snow, on the other hand, was not materially different from that to which any member of the public was exposed when making their way around Glasgow for whatever reason at the relevant time.
30. In any event, as it appeared to the Extra Division, on the Lord Ordinary’s findings the risk of slipping was adequately controlled. There was little evidence as to the likely efficacy of unspecified attachments over the range of underfoot conditions that Miss Kennedy could have been expected to encounter. It could not even be said on the evidence that wearing attachments would have made any material difference on the pathway on which Miss Kennedy fell.
32. Fourthly, in relation to the common law case, it was said that the Lord Ordinary had failed to address the necessary basic questions identified by Lord President Dunedin in Morton v William Dixon Ltd 1909 SC 807, 809:
“Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either - to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or - to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”
It could not be said that either requirement of Lord Dunedin’s formula was satisfied. The Lord Ordinary had also failed to consider whether it would be fair, just and reasonable to find there to be a duty of care of the scope contended for, in accordance with Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618. Had he done so, he could not have failed to reject the contention that Cordia were under a common law duty to determine what their competent adult employees should wear on their feet when negotiating the streets of Glasgow.
33. Fifthly, it was said that the Lord Ordinary was not entitled to find Cordia liable, in any event, because he had made no finding that the wearing of attachments “would necessarily” have prevented Miss Kennedy’s fall. He had, it was said, not taken a view on the passages in the cross-examination of Mr Greasly in which he conceded that he could not say that Yaktrax would have made any difference.
Mr Greasly’s evidence
The evidence of skilled witnesses
(i) Admissibility
39. Skilled witnesses, unlike other witnesses, can give evidence of their opinions to assist the court. This gives rise to threshold questions of the admissibility of expert evidence. An example of opinion evidence is whether Miss Kennedy would have been less likely to fall if she had been wearing anti-slip attachments on her footwear.
40. Experts can and often do give evidence of fact as well as opinion evidence. A skilled witness, like any non-expert witness, can give evidence of what he or she has observed if it is relevant to a fact in issue. An example of such evidence in this case is Mr Greasly’s evidence of the slope of the pavement on which Miss Kennedy lost her footing. There are no special rules governing the admissibility of such factual evidence from a skilled witness.
42. It is common in Scottish criminal trials for the misuse of drugs for the Crown to adduce the evidence of a policeman who has the experience and knowledge to describe the quantities of drugs that people tend to keep for personal use rather than for supply to others. Recently, in Myers, Brangman and Cox v The Queen [2015] UKPC 40; [2015] 3 WLR 1145, the Judicial Committee of the Privy Council approved of the use of police officers, who had special training and considerable experience of the practices of criminal gangs, to give evidence on the culture of gangs, their places of association and the signs that gang members used to associate themselves with particular gangs. In giving such factual evidence a skilled witness can draw on the general body of knowledge and understanding in which he is skilled, including the work and literature of others. But Lord Hughes, in delivering the advice of the Board at para 58, warned that “care must be taken that simple, and not necessarily balanced, anecdotal evidence is not permitted to assume the robe of expertise.” To avoid this, the skilled witness must set out his qualifications, by training and experience, to give expert evidence and also say from where he has obtained information, if it is not based on his own observations and experience.
“Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”
(i) whether the proposed skilled evidence will assist the court in its task;
(ii) whether the witness has the necessary knowledge and experience;
(iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and
(iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.
All four considerations apply to opinion evidence, although, as we state below, when the first consideration is applied to opinion evidence the threshold is the necessity of such evidence. The four considerations also apply to skilled evidence of fact, where the skilled witness draws on the knowledge and experience of others rather than or in addition to personal observation or its equivalent. We examine each consideration in turn.
“If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”
In Wilson v Her Majesty’s Advocate 2009 JC 336, which also concerned opinion evidence, the High Court of Justiciary, in an opinion delivered by Lord Wheatley, stated the test thus (at para 58):
“[T]he subject-matter under discussion must be necessary for the proper resolution of the dispute, and be such that a judge or jury without instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience.”
“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”
As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”
49. In Davie the Lord President at p 40 observed that expert witnesses cannot usurp the functions of the jury or judge sitting as a jury. Recently, in Pora v The Queen [2015] UKPC 9; [2016] 1 Cr App R 3, para 24, the Judicial Committee of the Privy Council in an appeal from New Zealand, stated:
“It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues. On occasions that may involve the witness expressing an opinion about whether, for instance, an individual suffered from a particular condition or vulnerability. The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.”
Thus, while on occasion in order to avoid elusive language the skilled witness may have to express his or her views in a way that addresses the ultimate issue before the court, expert assistance does not extend to supplanting the court as the decision-maker. The fact-finding judge cannot delegate the decision-making role to the expert.
51. Impartiality and other duties: If a party proffers an expert report which on its face does not comply with the recognised duties of a skilled witness to be independent and impartial, the court may exclude the evidence as inadmissible: Toth v Jarman [2006] EWCA Civ 1028; [2006] 4 All ER 1276, paras 100-102. In Field v Leeds City Council [2000] 1 EGLR 54, the Court of Appeal upheld the decision of a district judge, who, having ordered the Council to provide an independent surveyor’s report, excluded at an interim hearing the evidence of a surveyor whom the Council proposed to lead in evidence on the ground that his impartiality had not been demonstrated. It is unlikely that the court could make such a prior ruling on admissibility in those Scottish procedures in which there is as yet no judicial case management. But the requirement of independence and impartiality is in our view one of admissibility rather than merely the weight of the evidence.
“The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”
“A party seeking to lead a witness with purported knowledge or experience outwith generally recognised fields would need to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the methodology and validity of that field of knowledge or science.”
56. We agree with that proposition, which is supported in Scotland and in other jurisdictions by the court’s refusal to accept the evidence of an expert whose methodology is not based on any established body of knowledge. Thus in Young v Her Majesty’s Advocate 2014 SLT 21, the High Court refused to admit evidence of “case linkage analysis” because it was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable. See also, for example, R v Gilfoyle [2001] 2 Cr App R 5, in which the English Court of Appeal (Criminal Division) refused to admit expert evidence on “psychological autopsy” for several reasons, including that the expert had not embarked on the exercise in question before and also that there were no criteria by reference to which the court could test the quality of his opinions and no substantial body of academic writing approving his methodology. The court also observed that the psychologist’s views were based on one-sided information and doubted that the assessment of levels of happiness or unhappiness was a task for an expert rather than jurors.
(ii) Making sure that the expert performs his or her role
(iii) Policing the performance of an expert’s duties
59. In many cases it may not be possible to iron out all difficulties before the proof. A party may object to part or all of a skilled witness’s evidence at the start and during the course of a proof, as occurred in this case. In the absence of objection, the judge should, when assessing whether and to what extent to give weight to the evidence, test the evidence to ascertain that it complies with the four considerations which we have set out in para 38 above and is otherwise sound. In McTear v Imperial Tobacco Ltd 2005 2 SC 1, para 5.17 Lord Nimmo Smith usefully described the judge’s role in these terms:
“[I]t is necessary to consider with care, in respect of each of the expert witnesses, to what extent he was aware of and observed his function. I must decide what did or did not lie within his field of expertise, and not have regard to any expression of opinion on a matter which lay outwith that field. Where published literature was put to a witness, I can only have regard to such of it as lay within his field of expertise, and then only to such passages as were expressly referred to. Above all, the purpose of leading the evidence of any of the expert witnesses should have been to impart to me special knowledge of subject-matter, including published material, lying within the witness’s field of expertise, so as to enable me to form my own judgment about that subject-matter and the conclusions to be drawn from it.”
Lord Brodie referred to this passage in his opinion at para 11. It is not necessary in this appeal to determine how far a court should have regard to published material put to or cited by a skilled witness which is not within his or her core expertise. Much may depend on the nature of the expert’s area of practice, which may or may not involve some working knowledge of related disciplines, and on the centrality of the published material to the matter which the court has to decide: see, for example, Main v McAndrew Wormald Ltd 1988 SLT 141 and, on the analogous question of a medical practitioner consulting another specialist, M v Kennedy 1993 SC 115.
(iv) Economy in litigation
Expert evidence in this case
(i) information on the prevention or reduction of risks of tripping and slipping from publications by the Construction Industry Research and Information Association, by the HSE and from the HSE website;
(ii) research literature on the effectiveness of different types of footwear and devices to resist slipping and on the circumstances in which people suffer falls;
(iii) HSE guidance on the PPE Regulations which provided evidence of good health and safety practice in relation to dangers posed by the weather when people have to work out of doors; and
(iv) the practices of named public bodies in providing their employees working out of doors with anti-slip devices.
Cordia maintained their challenge to his evidence of the effect of Yaktrax, based on his own use of them, and his oral explanation of how anti-slip attachments reduced the risk of slipping, which was based on his knowledge of engineering. But these were also factual matters, which he had the experience and qualifications to describe. In our view, the Lord Ordinary did not err in admitting all of this factual evidence.
67. We are not persuaded by the latter objection. There may be cases where the opinion of a professional as to what he or she would have done in a given circumstance is of only limited weight in the court’s assessment of a claim for professional negligence, as in Hett, Stubbs. But we see no reason why the Lord Ordinary should not have found helpful the reasoned view of a person experienced in carrying out risk assessments on the rating of risks within a risk assessment. Cordia assessed the risk of injury such as sprains or fractures when travelling to and from work locations to be “tolerable”, applying a British Standard with which a judge might not be familiar but which was relevant to a consideration of proper practice. Mr Greasly opined that in wintry conditions the risk should have been assessed as “substantial”. His evidence provided a basis for the Lord Ordinary to weigh up the opposing views when deciding whether Cordia had suitably and sufficiently evaluated the risks and identified the measures needed to protect health and safety. We have difficulty in seeing how Miss Kennedy’s counsel could have presented her case on these matters by legal submissions alone.
73. We observe that in this case there was no suggestion that Miss Kennedy’s advisers had adopted an uneconomic approach to the litigation. Her proof consisted of two witnesses: herself and Mr Greasly.
The Framework Directive
75. Article 153 of the Treaty on the Functioning of the European Union requires the EU to support and complement the activities of the member states in a number of fields, including “improvement in particular of the working environment to protect workers’ health and safety”, and permits the European Parliament and Council to adopt Directives for that purpose. It is clear from the case law of the Court of Justice that article 153, and in particular the concepts of “working environment”, “safety” and “health”, are not to be interpreted restrictively: see, for example, United Kingdom v Council of the European Union (Case C-84/94) [1996] ECR I-5755, para 15.
“(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
...
(h) giving collective protective measures priority over individual protective measures; and
(i) giving appropriate instructions to the workers.”
These principles are fundamental to the panoply of “daughter” Directives, and to the legislation transposing them into domestic law. Where possible, risk is to be avoided rather than reduced; means of collective protection are to be preferred to means of individual protection (such as PPE); and merely giving instructions to the workers is to be the last resort.
The PPE Directive
The Management Regulations
“Every employer shall make a suitable and sufficient assessment of -
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work;
…
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions …”
89. The importance of a suitable and sufficient risk assessment was explained by the Court of Appeal in the case of Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] ICR 719. Smith LJ observed at para 58 that insufficient judicial attention had been given to risk assessments in the years since the duty to conduct them was first introduced. She suggested that that was because judges recognised that a failure to carry out a sufficient and suitable risk assessment was never the direct cause of an injury: the inadequacy of a risk assessment could only ever be an indirect cause. Judicial decisions had tended to focus on the breach of duty which led directly to the injury. But to focus on the adequacy of the precautions actually taken without first considering the adequacy of the risk assessment was, she suggested, putting the cart before the horse. Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. They should, she said, be a blueprint for action. She added at para 59, cited by the Lord Ordinary in the present case, that the most logical way to approach a question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment. We respectfully agree.
The application of the Management Regulations in the present case
90. As we have explained, the Extra Division did not consider closely whether Cordia had complied with their duties under the Management Regulations, or reach any conclusion on that question. This court should however do so. It is clear from the evidence that Miss Kennedy was exposed to a risk to her health and safety whilst she was at work, namely the risk of slipping and falling on snow and ice while travelling between clients’ houses. That risk was obvious as a matter of common sense, and was in any event within Cordia’s knowledge, given their previous experience of the incidence of home carers suffering such accidents each year. The risk was identified, in general terms, in the 2005 risk assessment. Although it was not explicitly addressed in the 2010 risk assessment, risks of that general nature were again identified.
The PPE Regulations
94. Regulation 4(1) is particularly relevant to the present case. It provides:
“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.”
“(a) an assessment of any risk or risks to health or safety which have not been avoided by other means;
(b) the definition of the characteristics which personal protective equipment must have in order to be effective against the risks referred to in sub-paragraph (a) of this paragraph, taking into account any risks which the equipment itself may create;
(c) comparison of the characteristics of the personal protective equipment available with the characteristics referred to in sub-paragraph (b) of this paragraph.”
“Where an employer or self-employed person is required, by virtue of regulation 4, to ensure personal protective equipment is provided, he shall also ensure that appropriate accommodation is provided for that personal protective equipment when it is not being used.”
Regulation 10 provides, so far as material:
“(1) Every employer shall take all reasonable steps to ensure that any personal protective equipment provided to his employees by virtue of regulation 4(1) is properly used. ...
(4) Every employee and self-employed person who has been provided with personal protective equipment by virtue of regulation 4 shall take all reasonable steps to ensure that it is returned to the accommodation provided for it after use.”
The application of the PPE Regulations in the present case
100. We do not find these arguments persuasive. An employee is “at work”, for the purposes of both the Management Regulations and the PPE Regulations, throughout the time when she is in the course of her employment: section 52(1)(b) of the 1974 Act. The point is illustrated by the facts of Robb v Salamis (M & I) Ltd [2006] UKHL 56; 2007 SC (HL) 71; [2007] ICR 175. Miss Kennedy in particular, as a home carer, was “at work” when she was travelling between the home of one client and that of another in order to provide them with care. Indeed, travelling from one client’s home to another’s was an integral part of her work. The meaning of the words “while at work” in regulation 4(1) of the PPE Regulations (and of the equivalent words, “whilst they are at work”, in regulation 3(1) of the Management Regulations) is plain. They mean that the employee must be exposed to the risk during the time when she is at work, that is to say, during the time when she is in the course of her employment. They refer to the time when she is exposed to the risk, not to the cause of the risk.
101. That conclusion as to the construction of the Regulations would not be affected even if, as the Extra Division considered, the Directives were to be construed as having a narrower application. As article 1(3) of the Framework Directive makes clear, the Directives do not exclude the adoption of national measures which provide greater protection. The PPE Directive in particular “lays down minimum requirements”: article 1(1). It has been noted in earlier cases that the domestic Regulations are in some respects of wider scope than the Directives (see, for example, Hide v The Steeplechase Co (Cheltenham) Ltd [2013] EWCA Civ 545; [2014] ICR 326).
102. But the Directives are not in any case confined to risks arising specifically from the nature of the activities which the worker carries out, as opposed to risks arising from the natural environment to which the worker is exposed while at work. Article 5(1) of the Framework Directive requires the employer to ensure the safety and health of workers “in every aspect related to the work.” Article 5(4) makes it clear that the employer’s obligations are not confined to risks arising from matters within his control: member states are permitted to exclude or limit employers’ responsibility only “where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.” The obligation imposed by article 6(3)(a) applies to all risks to the safety and health of workers: Commission of the European Communities v Italian Republic (Case C-49/00) [2001] ECR I-8575, para 12. As we have explained, Annex II to the PPE Directive includes “Removable spikes for ice, snow” in its non-exhaustive guide list of items of PPE, while Annex III includes “Work in the open air in rain and cold weather” in its non-exhaustive guide list of activities and sectors of activity which may require the provision of PPE.
103. As we have explained, the Extra Division also considered the Lord Ordinary’s approach to be inconsistent with regulations 8 and 10 of the PPE Regulations. We do not agree. Regulation 8 requires the employer to ensure that appropriate accommodation is provided for the PPE when it is not being used. Lord Brodie reasoned that, since the employer could only make accommodation available in places or situations where he could exercise control, regulation 8 suggested that the risks with which the Regulations were concerned were similarly confined. With respect, that does not follow. Protective clothing, for example, often has to be provided precisely because the employer cannot control the places or situations in which the clothing is to be worn (as, for example, in Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816 and Taylor v Chief Constable of Hampshire Police [2013] EWCA Civ 496; [2013] ICR 1150). It also has to be borne in mind that there may be situations in which the most appropriate place for PPE to be accommodated when it is not in use will be in the employee’s home or vehicle. In such a situation, the employer might fulfil its duty under regulation 8 by arranging with the employee for the PPE to be accommodated there.
105. There remains the Extra Division’s conclusion that there was in any event no obligation to provide PPE in the present case, since on the Lord Ordinary’s findings the risk of slipping was adequately controlled by other means which were equally or more effective, as required by regulation 4(1) of the PPE Regulations. In that regard, the Extra Division considered that there was little evidence as to the likely efficacy of attachments over the range of underfoot conditions that Miss Kennedy could have been expected to encounter.
106. We are unable to reconcile the Extra Division’s conclusion with the Lord Ordinary’s findings. In relation to the exception to regulation 4(1), he noted that the onus was on the employer to establish that the exception was made out. He found, in the first place, that the evidence about the precautions in place, in the form of training, was vague and unsatisfactory. As he commented, that in itself showed that the precautions taken could not be regarded as “adequate control by other means”. Furthermore, he accepted Mr Greasly’s evidence about the availability of PPE which would reduce the risk. His reasoning reflects the evidence and a proper understanding of the law. The evidence established that anti-slipping attachments were available at a modest cost; that they were used by other employers to address the risk of their employees slipping and falling on footpaths covered in snow and ice; that there was a body of research demonstrating that their use reduced the risk of slipping in wintry conditions; and that Mr Greasly’s own experience was that the attachments which he had used had made a difference. His evidence, which the Lord Ordinary accepted, was that, had Miss Kennedy worn such devices, on a balance of probabilities the risk of her falling on ice and snow would have been reduced and might have been eliminated. As against that, Cordia had given no consideration to the matter. In those circumstances, we can see no basis in the Lord Ordinary’s findings, or in the evidence, for finding that the exception in regulation 4(1) had been made out.
Common law liability
107. It may be helpful at the outset to address a general point arising from the opinions of the Extra Division. They contain numerous comments to the effect that it is unreasonable to suggest that Miss Kennedy’s employer should have provided her with special footwear designed to reduce the risk of her slipping and falling, since she was in the same position as any other member of the public travelling on foot in wintry conditions. It was in that context that the Extra Division stressed the “necessary basic questions” identified by Lord President Dunedin in Morton v William Dixon Ltd, and referred to the Caparo test: see para 32 above.
108. One can understand the Extra Division’s concern that the law should not be excessively paternalistic. Miss Kennedy was not, however, in the same position as an ordinary member of the public going about her own affairs. It was her duty, as someone employed by Cordia as a home carer, to visit clients in their homes in different parts of the city on a freezing winter’s evening despite the hazardous conditions underfoot. Unlike an ordinary member of the public, she could not choose to stay indoors and avoid the risk of slipping and falling on the snow and ice. Unlike an ordinary member of the public, she could not choose where or when she went. She could not keep to roads and pavements which had been cleared or treated. She could not decide to avoid the untreated footpath leading to Mrs Craig’s door. Unlike an ordinary member of the public, she was obliged to act in accordance with the instructions given to her by her employers: employers who were able, and indeed obliged under statute, to consider the risks to her safety while she was at work and the means by which those risks might be reduced. In those circumstances, to base one’s view of the common law on the premise that Miss Kennedy was in all relevant respects in the same position as an ordinary member of the public is a mistake.
109. Furthermore, the common law relating to employers’ liability was not definitively stated by Lord Dunedin in Morton v William Dixon Ltd. As long ago as 1959, Lord Keith of Avonholm devoted his speech in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 to the clarification of Lord Dunedin’s dictum. He observed that the ruling principle was that an employer was bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to that principle (a point which had earlier been made, in relation to Lord Dunedin’s dictum, by Lord Normand in Paris v Stepney Borough Council [1951] AC 367, 382 and by Lord Reid in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552, 571, amongst others). He added that Lord Dunedin could not have intended to depart from or modify that fundamental principle. Both in that case and in Brown v Rolls Royce Ltd 1960 SC (HL) 22; [1960] 1 WLR 210 Lord Keith emphasised that Lord Dunedin was laying down no proposition of law.
110. The context in which the common law of employer’s liability has to be applied has changed since 1909, when Morton v William Dixon Ltd was decided. As Smith LJ observed in Threlfall v Kingston-upon-Hull City Council [2010] EWCA Civ 1147; [2011] ICR 209, para 35 (quoted by the Lord Ordinary in the present case), in more recent times it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. In many circumstances, as in those of the present case, a statutory duty to conduct such an assessment has been imposed. The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out such an assessment is therefore, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics plc [2004] UKHL 31; [2004] ICR 975, para 49, logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care.
111. It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious. A less outdated formulation of the employer’s common law duty of care can be found in Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 WLR 1003, para 9.
113. Had such inquiries been made, or a proper risk assessment carried out, the implication of the evidence accepted by the Lord Ordinary is that Cordia would have learned that attachments were available, at a modest cost, which had been found to be effective in reducing the risk, and had been provided by a number of other employers to employees in a similar position. In those circumstances, the Lord Ordinary was entitled to conclude that Cordia were negligent in failing to provide Miss Kennedy with such attachments.
Causation
115. It remains to consider the Extra Division’s conclusion that the Lord Ordinary was not entitled to find Cordia liable in the absence of any explicit finding that Miss Kennedy’s injury had been caused by any breach of duty on their part. The question is not, of course, whether Miss Kennedy’s injury would necessarily have been prevented: as in other civil contexts, the matter has to be decided on a balance of probabilities.
116. The Lord Ordinary made no express findings in relation to causation, other than that he accepted Miss Kennedy’s evidence that she would have used anti-slip attachments if they had been provided to her. The question therefore is whether, in the light of the other findings which were made, the only reasonable inference which could be drawn was that Cordia’s breach of their duties caused or made a material contribution to Miss Kennedy’s accident.
“The protection, to be suitable, need not make it impossible for the accident to happen, but it must make it highly unlikely.”
120. In the present case, there was no suggestion that it would not have been practicable to provide equipment which was effective to prevent or adequately control the risk or risks involved, and the evidence of Mr Greasly was to the contrary effect. In the circumstances, the only inference which could reasonably have been drawn was that the breach of regulation 4(1) had caused or materially contributed to the accident, and that Cordia were therefore liable to Miss Kennedy under the PPE Regulations.
121. If, on the other hand, the Lord Ordinary’s finding of a breach of regulation 4(1) of the PPE Regulations is left out of account, and one focuses solely upon his finding of a breach of a common law duty of care, then the position in relation to causation is more problematical. Given that the Lord Ordinary accepted Mr Greasly’s evidence about the slip resistance of the attachments which he had experienced using, it might perhaps have been inferred as a matter of common sense that Cordia’s failure to provide such attachments was a material cause of Miss Kennedy’s accident (cf Drake v Harbour [2008] EWCA Civ 25, para 28). It cannot, however, be said that the Lord Ordinary would necessarily have reached that conclusion. His opinion does not contain any explicit consideration of the matter, or articulate any conclusion. In those circumstances, it is difficult to maintain that there was a proper foundation for his decision that Cordia were liable in damages at common law. That conclusion is however of no practical significance, given that Cordia are liable in any event under the 1992 Regulations.
Conclusion