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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Kennedy V. Cordia (Services) LLP [2013] ScotCS CSOH_130 (07 August 2013)
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Cite as: [2013] ScotCS CSOH_130, [2013] CSOH 130

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OUTER HOUSE, COURT OF SESSION

 

[2013] CSOH 130

 

PD1079/12

 

OPINION OF LORD McEWAN

 

in the cause

 

TRACEY KENNEDY

 

Pursuer;

 

against

 

CORDIA (SERVICES) LLP

 

Defender:

 

________________

 

 

Pursuer: Mackay, QC, Mackenzie; Digby Brown LLP

Defender: Smith, QC, Martin-Brown; Glasgow City Council (Corporate Services)

 

1 August 2013

 


[1] At the end of 2010 Scotland was afflicted by a very severe winter which lasted many weeks. Snow fell. It lay then froze. More snow fell in larger amounts and intermittently. The pursuer (then aged 41) worked for the defenders as a home carer. On 18 December she and a colleague had to go at night to visit a homebound sick person. They went by car and having parked it proceeded on foot down a path. The pursuer lost her footing, fell and was injured.


[2]
The proof before me was, by agreement, restricted to liability only. The evidence led was in short compass. The pursuer's proof consisted of the pursuer herself and her expert Mr Lenford Greasley. The defenders led a witness Emma Rodger and, on commission, Martha Waugh. There was lodged a joint minute of agreement on certain documents.


[3]
In the course of matters I was referred to the following cases. Only a few of these were looked at in any depth:

- Davie v Magistrates of Edinburgh 1953 SC 34

- McGowan v Watson 2007 SC 272

- HMA v Hainey [2013] HCJAC 47

- Wilson v HMA 2009 JC 336

- Allison v London Underground Ltd [2008] ICR 719

- Threlfall v Hull City Council [2010] EWCA Civ 1147

- Henser-Leather v Securicor Cash Services [2002] EWCA Civ 816

- Blair v Chief Constable of Sussex [2012] EWCA Civ 633

- Chief Constable of Hampshire v Taylor [2013] EWCA Civ 496

 


[4] I was also referred to: Dickson on Evidence (2nd edition), Redgrave's Health and Safety (8th edition) and Gloag and Henderson: Law of Scotland (2012 edition).


[5]
The first thing to take account of is what is the pursuer's case on Record about liability. The circumstances of her accident on 18 December 2010 at night are to be found on pages 4C to E. The journey to Crookston is described, the parking of the vehicle close to the pathway, the prevailing weather and the purser in her own flat boots falling on the icy pathway down to Mrs Craig's house. There then follow averments about care staff falling every year on snow and ice when carrying out their duties; about there being no risk assessment to cover ice and snow or any provision of personal protective equipment. Then it is averred that there was no guidance as to what was suitable footwear and no provision of attachments for footwear. Some four or five different examples of these are mentioned. There is a complaint that, at the time, her training was not adequate and finally mention of certain precautions taken after the accident.


[6]
The defenders deal with many of the critical averments of the pursuer on a "not known and not admitted" basis. They aver the training given and their two risk assessments. They say at the time she was wearing footwear with a smooth sole. On pages 8 and 9 a case of contributory negligence is stated.


[7]
Condescendence 6 states cases of fault at common law and breaches of the Management of Health and Safety at Work Regulations 1999 and the Personal Protective Equipment at Work Regulations 1992.


[8]
Let me first deal with the evidence. No issue was raised about credibility and I have accepted all the witnesses as credible. I also accept the pursuer and Mr Greasley as reliable. Miss Rodger did initially pose some problems in the area of reliability. She was a well-qualified witness but when she was challenged either directly, or for the alleged short comings of others, she became very defensive and seemed unable or unwilling to accept any criticisms of her procedures and risk assessments. That, to say the least was a difficulty for the court, but one capable of resolution.


[9]
One witness Martha Waugh gave evidence on commission. The report of the commissioner is before me.


[10]
The pursuer is aged 43. She presented well and gave her evidence carefully and without any attempt to exaggerate the severity of the matter. She had been a home carer for seven years and her precise job was "enhanced home carer" for ill or terminally ill people. She said her induction training was in 2007 for three weeks and she accepted that she was "shadowed" by experienced carers. She did not remember seeing No. 7/8 of process "The Hazard Awareness sheet" (in cross she said she might have been given it) but accepted she was probably given No. 7/6 ("Trainer Track"). She said that she knew ice could make you slip and you had to take your time. I accept all of the evidence as true and accurate. It was not challenged.


[11]
She then told the court what happened on 18 December. Mrs Craig was an elderly lady who was terminally ill. She was receiving palliative care. The pursuer had visited her earlier that day in Crookston. She had been driven there to her door. She went to wash her, change her nightie, pants, change her bed position and check her medication. The weather was cold, freezing, icy and snow was falling. It had been like that for weeks. In the evening the pursuer returned, driven by Martha Waugh who was also a carer. Again the lady was to have a full body wash, change of nightie, incontinence pads and her position. On this occasion the pursuer said that Martha did "not want to take the car round" to Mrs Craig's door which is a cul-de-sac (map no 7/1 of process identifies it). She parked the car next to the path which sloped down to the house. Apparently Martha did not want to drive further as there was a danger of the car sliding on the road which had a slight gradient. Fresh snow had fallen. Both carers got out and walked down the path which had snow on top of ice. Under reference to photographs (No. 6/6 of process) the pursuer described how both her feet slipped and she fell backwards. She put her hands behind her and fell on her left wrist. She had walked normally, taking care and watching where she put her feet. On her feet she wore black suede boots with a ridged sole very similar to No. 6/8 of process. The boots were her own choice. At her training she had been told to wear suitable footwear. She then gave some general evidence about her fracture which is not relevant for present purposes. None of this evidence was contradicted and again I accept it.


[12]
She was asked about shoe accessories such as Yaktrax and said had she been given them she would have worn them, would have had time to fit them that night and would have done so. Again, I accept that nem con. She was asked about phoning her manager and said it did not occur to her to do so. She felt she would have been told to carry on and she herself felt she could not have left Mrs Craig. Indeed even after she fell, Martha and the pursuer went on to see another housebound invalid.


[13]
In cross‑examination she did not alter her evidence or contradict it. She maintained her position that she had driven to work in her boots which were all she had available to her. The defenders and everybody else knew how bad the weather was as it had been like that for weeks. She again said that to call the supervisor would not have helped. That procedure was only used if the house had a fierce dog or a very heavy lift was involved. At that time in her private life she did not go out much due to the weather. She again confirmed, with accuracy, where she had fallen. She said she could see where she was going and that the path had street lighting. Interestingly as that winter progressed she became aware of Yaktrax and had seen people wear them.


[14]
In re‑examination she added that she had safely visited other people but not on a path like this.


[15]
Mr Greasley (aged 67) gave evidence after the pursuer. He had an engineering degree, a law degree, long experience in the health and safety at work field in many areas and has given evidence in court many times. He produced and spoke to his two reports (Nos. 6/3 and 6/22 of process) I refer to these for their terms. Having heard the pursuer, he was familiar with what had happened. He had been to the locus and inter alia concluded that there was street lighting and the pursuer could see where she was going. The path had a slope of 4/5°and cross slope of 2°this indicated a 4.7% coefficient. Grip by footwear was less on a slope. He said that someone walking on ice and snow on a slope would change their gait.


[16]
He then looked at the risk assessments 7/4 and 7/5. 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 7/5 page 8 section D. 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.


[17]
The witness then referred to a number of published papers on traction and the effect of PPE in relation to footwear. These were 6/13 Bruce Jones & Manning, 6/14 McKieran (USA pub. concerning Yaktrax), 6/15 Gard v Berggard (Sweden), 6/16 Gao v Holmer, 6/17 Berggard and 6/18 Grongvist et al. Most of these were from Northern Europe or America where cold icy weather was always expected. From those he said it was clear that long before the pursuer's accident suitable shoe or boot "add ons" were available on the market as PPE. There were choices and a number of types. Yaktrax was but one example, and indeed those were used by Post Office employees and one local authority. Such devices did help to control and reduce the risks of slipping on ice and snow.


[18]
This is a summary of his evidence in chief and from it I accept that he had proper detailed knowledge of the locus, the correct approach to compiling risk assessments and was justified in his conclusion about the published papers and PPE for footwear. The American study (6/14) is particularly useful.


[19]
In his cross‑examination the witness was asked again about his qualifications and the work of the Slip Resistance Group of which he was a member. He confirmed his experience with the general inspectorate of the Health and Safety Executive. He had experience working for a health and safety consultancy firm. He had lectured on risk assessments, reviewed them for other people and even compiled one himself for a specific purpose.


[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 the pursuer'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]
In my view what he said in cross did not in any way depart from what he said in chief and he was equally consistent in re‑examination. There, and under reference to the grid (No. 7/19 for example), 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.


[22]
Miss Rodger, aged 34, was the only defenders' witness at the proof. She was the defenders' business development manager for health and safety. She was well qualified with a university degree in politics and history a number of qualifications on health and safety; post graduate diploma on risk management with many assignments and a portfolio. She was familiar with health and safety and human behaviour legislation. I accept her as an expert, though without the experience of Mr Greasley.


[23]
She spoke in detail to Nos. 7/4 and 7/5, the risk assessments and said No. 7/4 was her document. I may have been under a misapprehension about 7/5 (the most recent one) as I thought she had compiled it. However, she had not but accepted, rightly, full responsibility for it. She said she had "shadowed" the home carers on night and day shift to identify any potential hazards or injury risks. She had to consider what measures and controls were in place; consider what was in the Risk Matrix BS 8800 and take account of the severity of harm. The trade unions were consulted. The compiling of the document was a matter of judgment. Interestingly she said that the whole procedure could be budget driven and there had to be a balance of risk and cost. She said that if Yaktrax could guarantee that nobody would be injured the defenders would have supplied them. Looking at sections A and D in the risk assessments she said that A was intended to cover commuting whereas D was the visiting where a car had to go to a house for example to put out a bin. When asked why "inclement weather" was not in D in 7/5 she said omitting it was being "picky", the defenders had 3,000 employees in homecare. The statistics showed five had slipped and fallen. She had no information of harmful results apart from back strains. I accept all this evidence as being the way she compiled the risk assessments. Whether it is the correct way is another matter.


[24]
She then spoke of the induction training and how she trained the trainers. There were "power point" slides and people were told about footwear. She did not tell the court what they were told. She said under reference to No. 7/8 of process that what was safe and adequate footwear was left to the individual. She accepted that the defenders did not address the provision of PPE in relation to footwear. Thereafter followed some evidence which I have excluded as will appear later.


[25]
She concluded her evidence in chief by looking at the question of whether a phone call should have been made to the line manager that night. She said that depended on a number of factors, for example, was the visit low priority; could a family member come or a neighbour, was it a matter of life and death. In giving this answer the witness did not address the circumstances of Mrs Craig. That is unfortunate since the pursuer clearly thought her visit was very necessary. Whatever else, the answer from the defenders' witness is destructive of any suggestion the pursuer was at fault not to phone. Miss Rodger, who knew the locus, said that the car should have been driven to the door.


[26]
In cross‑examination, and under reference to No. 7/19 and the 1999 Regulations, she agreed that the defenders had to prevent or reduce the risk which there was of slipping. She agreed that a slip could produce harmful injuries from fractures to head injuries, and in the workplace of all accident 1/3 are slips. (She looked at No.  7/6 of process.) Having heard that, counsel then questioned her closely on 7/19 (BS 8800) given the concession that a fall on ice was likely and the injury could be harmful. The witness refused to agree that the risk could be classed as "substantial" which is what BS 8800 seems to indicate. Her risk rating was "tolerable" as were almost all the others. Her final position was that she had to take account of the controls in place before (emphasis added) you can assess "substantial". That was what the training was all about. She was adamant about her assessment being correct. I accept what she believed but it does cause me concern.


[27]
The preventative measures are stated in the Induction Hazard Awareness booklet, as Instruction on appropriate footwear. I was not told what "instruction" was given about footwear. That matters when no consideration was given to PPE. Also it raises a question of how the rating was reduced two boxes to "tolerable". There was then an exchange which showed that BS 8800 had been superseded and replaced. I have said elsewhere that I do not think that matters but the witness ought to have known. There followed more questions on what was said or discussed at training. Again, as I have said, it was all based on what "Would have been said or discussed". I can accept this for what it is worth but without any document or minute to show what the pursuer was told it is not of great weight. Also Miss Rodger could not guarantee what was said on each course. She attached importance to the apparent trade union approval of the risk assessments. She strongly denied that 7/5 was "hopelessly inadequate" and then said that five incidents a year with 3,000 employees made a slip unlikely and with their controls made the rating "tolerable". Having said that she knew the winter of 2010 was bad with the M8 shut. She said that on the week of the accident she knew of no concern about the weather. In re‑examination it appeared that No. 7/5 had not been compiled by Miss Rodgers. In the context of measures taken by way of training something will later need to be said about Nos. 7/6 and 7/8 of process called "Trainer Track" and "Hazard Awareness" respectively. On that evidence before me these are the only documents said to have been part of this pursuer's training.


[28]
Martha Waugh, aged 49, gave her evidence on commission. She drove her car that winter night to Mrs Craig's home. No issues of credibility or reliability arise on her evidence and in spite of the defenders' written submission I was never addressed by either side on the evidence put in Papers Apart A and B (pages 10 and 23) or the objections arising at the Commission. In view of my decision below about the defenders' lack of pleading on the other main objection I propose to ignore the Papers Apart. There are some points to be taken from her evidence. It was never really suggested to her that she was at fault in not driving to the house. That affects part of the case on contributory negligence. She also said, without contradiction, that after the pursuer fell on the path they both continued to the house and returned walking on the grass. It is clear that she chose what to wear on her feet and on the day was wearing trainers (pages 17/18). Finally there is no clear evidence from her about any policy of phoning in if a problem was expected. (See page 22 where objection was taken.) Her comments (page 24) on the booklet Hazard Awareness (No. 7/8) do not help the defenders. It is my impression that her answer is directed to ensuring she wore shoes to keep dry and was not thinking about slipping.


[29]
Mr Mackay for the pursuer lodged a written submission which I refer to for its terms, and in moving to find the defenders liable he made the following submissions in amplification.


[30]
Counsel first renewed his objection to certain passages in the evidence of Miss Rodger. This was to the effect that a year after the accident to the pursuer, the defenders tested Yaktrax due to a high increase in accidents. Two types were used with different training teams; one with and one without studs. The defenders decided not to use them even occasionally. Counsel said there was no record for any such test and in any event the test was too late. There was no written report of the results and the matter was not put to Mr Greasley. I was invited to exclude the evidence or at least to give it no weight.


[31]
Regulation 4(1) was in strict terms and there was no defence unless other means existed. Here Personal Protection Equipment (PPE) meant "add ons" to footwear. That was in the Directives. There was no issue about reasonable practicability. The pursuer here did not know of the risk of snow on top of ice. PPE was to avoid having to phone in and in any case there was no clear evidence that a phone call would have any result to reduce what was an obvious risk. At common law, with such a risk, even one accident was enough. With ice and snow even a few accidents among 3000 employees should alert the defenders. In the present case the weather had been unusually extreme for some time before the pursuer fell. The defenders' employees would have to visit many places including tenements and sanded pavements.


[32]
Shoe add ons had become widely available by 2010 and were being considered by other employers, eg The Royal Mail. It was not clear that the compiler of the risk assessment took account of this. The methodology was unclear and there were no statistics mentioned. However, unless some controls were put in place then a slip was likely. It was hard to reconcile the assessment of "tolerable" with the grid in no 6/25 of process for example unless other factors were clearly added in eg statistics and precautions. As it was, it produced only superficial analysis. The conclusion on footwear was a "flat full covered shoe", would prevent an indoor slip or an outdoor slip for PPE purposes. PPE had to be something beyond normal footwear to reduce the risk.


[33]
As to the induction course there was no hard evidence as to what they were told and by whom. Everything was predicated on a "would have been" basis.


[34]
A large number of studies showed how supplying the proper footwear reduced the risk. In one American study the reduction was 90%. There was no evidence that the defenders were aware of any of those studies. In the present case this accident happened at least a week after the bad weather came. Every year according to their own statistics carers were involved in accidents and the duty is owed to every employee. The defenders could not allow a few each year and do nothing.


[35]
What the pursuer desiderated was in the Council Directive and the Regulations. These should be interpreted to level up safety (emphasis added). "Equally or more effective" is what the defenders must address. How could they possibly answer that question if they never thought about PPE. Regulation 4(3) laid down very strict criteria all of which must apply and in 4(3)(d) the word "practicable" related to effectiveness. A purposive construction to the Regulations was needed so that European obligations would be fulfilled (Gloag & Henderson (2012 edn) page 24) When looking at the decided cases, it had to be remembered that no equipment was provided. Threlfall was a useful case especially for what was said from paragraphs 35 to 44. Once regulation 4 is engaged you must look at reg 6. There was no evidence that the defenders looked at this at all or as to whether other means were equally effective. They simply did not know. Threlfall was approved in eg Chief Constable of Hampshire v Taylor (another gloves case). The onus was on the employer to show working methods which provided equal or more effective protection. The Henser‑leather case was unusual and mention (at para 26) of members of the public was a "gloss" and was unhelpful. It had never been followed in any case. Looking to apply it to the present case the public could stay at home in safety on a snowy night. The pursuer could not. In the case of Blair causation was an issue. Regulation 3(2)(a) did not apply. There was civil liability for a risk assessment and the relevant one here (No. 7/5 of process) was not prepared by the defenders' witness. It was done under a superseded B.S. and did not identify the risk or the proper measures. Each breach of duty under the regulations stood alone. The pursuer desiderated an anti‑slip attachment not necessarily Yaktrax.


[36]
There was also a breach of duty at common law. The risk was substantial. The precaution was simple and inexpensive. Reasonable practicability did not come into consideration.


[37]
Mr Smith who also lodged a written submission moved me to assoilzie the defenders or if they were liable, to find the pursuer 60% to blame. He made no criticism of the pursuer and accepted her as being a credible witness. He said nothing about his witness on commission.


[38]
The pursuer had attended an induction course and had been involved in the debate and discussion on safety there. She was given the appropriate safety leaflet. The trainers at the course had been well taught by the highly qualified Miss Rodger who had herself conducted some of the courses and knew the law. There was no need to keep minutes of these sessions. It was agreed that the defenders provided no PPE. It was conceded that the risk here was not de minimis.


[39]
It could not be said that the risk assessment was defective. This pursuer was doing something people do every day ie walk on snow. Henser‑leather was in point. Threlfall proceeded on a concession that the risk assessment was defective and so the Regulations applied. This employer could expect people to possess safe shoes for bad weather. What the pursuer was doing was not beyond what the public in general were exposed to. It was an ordinary snowy path in winter.


[40]
Counsel referred to various passages in Redgrave pages 383, 523, 525, 681. "Shoes" he said were included in the definition of "ordinary working clothes". Not all local authorities in Scotland supplied PPE in relation to shoes.


[41]
He renewed his objection to Mr Greasley saying that he was not an expert and had no skills to assist the court. He referred in passing to Dickson on Evidence paras 397, 398, and to Davie v Magistrates of Edinburgh 1953 SC 34. He also said I should allow the evidence about testing and it was not necessary to plead this (McGowan v Watson 2007 SC 272).


[42] I gave Mr Mackay a brief reply and he asked me to accept Mr Greasley as an expert witness. He was specially qualified in the field of health and safety at work and was able to speak to many things not within judicial knowledge or in the public domain. I should not follow the case of HMA v Hainey.


[43]
Let me deal at once with the objection to Mr Greasley. Of consent he was allowed to sit in court for the evidence of the pursuer although Mr Smith did say that he proposed to challenge his status. The objection came when in chief he was asked to look at No. 7/4 one of the risk assessments. I heard argument and some authorities were placed before me viz Hainey v HMA, Wilson v HMA and Dickson on Evidence (2nd edn) para 397. At the time I allowed the evidence under reservation and at the hearing the objection was renewed and Davie v Magistrates of Edinburgh was referred to. The witness is aged 67. His many general qualifications are listed in his two reports (No. 6/3 of process). He has a law degree. 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. Before leaving this topic and the objection, I want to look at some of the cases. None of these was fully canvassed before me but it is right that I should indicate my opinion about them. Two of the cases were from the criminal law and at the outset I have to say that care has to be taken when seeking to use these in a civil context. In crime, on appeal, the test is miscarriage of justice and, at first instance, the jury is the arbiter of fact. That places the authorities in a very different position from the one facing me. Davie is an important case and sets out the rules governing expert witnesses and their place in an inquiry. From it I take the following. There were concurring experts, and the Lord Ordinary had rejected one of them. After careful analysis it was held he was entitled to do so. Lord Strachan was also criticised (41) for relying on passages in documents not spoken to by the witness. The First Division emphasised that to be of value, an expert had to have the proper authority, experience and qualifications and the evidence had to be intelligible, convincing and tested to be an important factor along with all the other evidence in the case. Wilson was a referred case from the SCCRC; long after a conviction for murder. The test before the appeal court was very different to what I have to consider. The issue was whether confession to murder could be reliable. The (undoubted) expert had inter alia speculated, relied on assumption and ignored material evidence and a motive for murder. In a very clear lengthy opinion the court found that his opinion would not have had any material effect on the jury's verdict.


[44]
That brings me to Hainey. While the rules about experts are the same (The Ikarian Reefer [1993] 2 LLR 68) the task at trial is very different. There is not the time and space of an avizandum in a proof, or a criminal appeal to reflect at length on complex matters. The trial judge is always under pressure in the cauldron of a trial and errors can be made. Charging a jury is not nowadays an easy matter and I am very sympathetic to even an experienced judge who finds himself under critical scrutiny long after the trial and with the benefit of time. It is not always easy when dealing with evidence to strike the right balance between saying too much or too little to a jury. In Hainey two of the witnesses accepted they were not experts in a particular field. I do not regard the case as in point here.


[45]
There remains one other outstanding objection to evidence and it arose in the evidence of Miss Rodger in chief when she gave evidence about tests conducted on PPE after the accident. It is clear that there is no record at all for this evidence led under reservation. It came very late in the case and it was not specific. There was no report or any other paperwork. Most importantly it was never put to Mr Greasley for his comments. I accept that the pleadings in this kind of case are in the simplified form. However, if the defenders had thought this matter to be important, a short and simple averment would have at least given fair notice. They could have sought to amend during the proof but did not do so. I propose now to sustain the objection and ignore the evidence. In any event it may not matter in view of my findings that at the time the defenders never addressed the issue of any anti‑slip attachments. McGowan v Watson was referred to but I do not think that the case is in point, and if anything it is against the defenders argument. It stressed the need for "fair notice" and that has not been given here in a case where PPE has been the issue in the main.


[46]
I can state my findings on the evidence briefly. The pursuer and Martha Waugh were accepted by both sides and I need say little about them. They both wore different footwear. What the pursuer wore plainly did not save her even when she, as she said, took care in the conditions. It is impossible to be critical of where this car was parked. It is also of some importance that both ladies were on an urgent and important duty to an elderly sick lady. It is my clear impression that neither of them would give up on Mrs Craig.


[47]
Mr Greasley I accept in the entirety. His reports Nos. 6/3 and 6/22 are careful and in measured terms. I have held him to be a suitably qualified expert. The reports are really uncontradicted and his evidence in court supported them and is consistent. I have narrated it earlier. The following emerges. He had been to the locus. The condition required some form of shoe "add on". Yaktrax was but one model available on the market at the time (it should be noted that the pursuer'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 4.9 of 6/3) and he was clear in his evidence and Reports that Regulation 4 was also breached (see eg. 3.11 and 3.12 in 6/22). 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.


[49]
I do not wish it to be thought that I have dismissed Miss Rodger. Clearly she thought that the defenders had performed their common law and statutory duties. It may be that the defenders could have led more evidence about training. What I found lacking in her evidence was a clear explanation of why she reduced the risk even on the methodology she used (I have already voiced my criticism of that). The direction of the law is to level safety upwards and in my opinion, the failure of the defenders' witness to address this by considering PPE has resulted in the breach of duty in all areas.


[50]
In now setting out the relevant Regulations it has to be noted that these are all passed to implement European Directives on safety; and are in strict terms. Breach of either will result in liability.


[51]
Let me now look at them and some of the cases. The Personal Protection Equipment at Work Regulation 1992 (No. 2966) provides inter alia:

"4...(1) Every employer shall ensure that suitable personal protection 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)...personal protection equipment shall not be suitable unless-

 

(a) it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur...

 

(d) so far as is practicable, it is effective to prevent - or adequately control the risk or risks involved without increasingly overall risk...

 

6...(1) Before choosing a personal protection equipment which by virtue of regulation 4 he is required to ensure is provided, an employer...shall ensure that an assessment is made to determine whether the personal protection equipment he intends will be provided is suitable..."

 

(There are also provisions to cover assessment of other means, comparisons and revisions)

The Management of Health Safety at Work Regulations 1999 (No 3242) provide inter alia

"3...(1) 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..."

 

(There are also provisions to review an assessment.)

"4...Where an employer implements any preventative and protective measures he shall do so on the basis of the principles specified in Schedule 1 to the Regulations

 

Schedule 1

 

(a) avoiding risks

(b) evaluating the risks which cannot be avoided

(c) evaluating the risk at source"

 

The relevant Council Directive of 30 November 1989 provides inter alia

"Article 2...

 

1. For the purposes of the Directive, personal protective equipment shall mean all equipment designed to be worn or held by the worker to protect him against one or more hazards likely to endanger his safety and health at work, and any addition or accessory designed to meet the objective...

 

Article 3...

Personal protective equipment shall be used when the risks cannot be avoided or sufficiently limited by technical means of collective protection or by measures, methods or procedures of work organisation...

 

Article 4

 

1. ... All personal protective equipment must:

 

(a) be appropriate for the risks involved, without itself leading to any increased risk..."

 


[52]
In Chief Constable of Hampshire v Taylor [2013] EWCA Civ 496 police officers were searching a house where cannabis had been produced. Because of the smell a WPC pushed at a window to open it and cut her thumb. She had been wearing latex gloves against skin irritation from the plants. The county court judge found for the plaintiff under the regulations holding a failure to provide thick gloves. (Here the risk was of sharp edges a low but not de minimis risk) (§14).


[53]
In Threlfall v Hull City Council [2010] EWCA Civ 1147 the plaintiff cut his hand when clearing debris from a council garden. One issue was whether he had been provided with suitable protective gloves. The gloves were not cut resistant and were designed for minimal risks only. His claim failed twice before the matter went to the Court of Appeal.


[54] The court said that every risk assessment should be "logically anterior" to the taking of safety precautions (§35). The general assessment made was inadequate, the risk was not de minimis and the gloves provided plainly not effective.


[55]
It is true that this case did proceed in part on a concession but on the facts, as I read them, one which could not have been withheld. It also should be observed that the employers did at least provide something.


[56]
Henser‑leather was a most unusual case on its facts. The plaintiff worked as a security guard business link driver collecting cash from commercial outlets for the defendants. At any one time he might have £4 million in his marked van. He had a smoke box, helmet and visor but no body armour. When collecting money from a petrol station in Leeds he was confronted by a robber who shot him with a hand gun. The employees had done no formal risk assessment though suitable armour was available. The case at common law failed as the plaintiff would not have worn it. A case under the 1992 Regulations was then considered but rejected on the ground that the judge held they did not apply to body armour. When the case went on appeal, the court unanimously agreed that the controls in place were not adequate for the risk to this kind of driver. Kennedy LJ described the risk as "...well above the risk to other members of the public going about their daily tasks...". They found a clear breach of regulations 4 read along with 6 and 10.


[57]
The reference to "members of the public" is curious, since ex hypothesi they are not employed and the plaintiff was. Blair was a case where the employer had considered PPE in the realm of what was the proper boot for police officers on motorcycles who were undergoing advanced training. In finding against the chief constable the Court of Appeal said (paragraph 12) that the county court judge had not asked himself the correct question posed by the Regulations. It was also emphasised that the onus was on the employer to demonstrate compliance with the requirements.


[58]
It is now necessary to deal with the defender's risk assessments Nos. 7/4 and 7/5 of process and look at these in detail. They are general assessments and clearly the defenders are aware of PPE in some areas (see last page of both risk assessments). The latter was the one in force at the time of the accident. Miss Rodger was responsible for No. 7/4 and until late in the proof it was thought that she produced 7/5 also. I had assumed that and when I asked her about it she said it was not her document but had been drawn up by someone called Susan McDonald in July 2010. Something was made of this at the end of the day but I do not think it greatly mattered since the defenders' witness knew of, and relied on it. Something was also made of the fact that 7/5 was compiled on a BS 8800 (No. 7/19) which had been superseded. Again I do not think that may really matter as its successor shows the same grid on the basis of which the risk is assessed. (See 6/25).


[59]
What is curious is the way the risk is assessed in the general assessment. One part of it relates to slipping. The defenders' witness agreed in cross that a fall on the ice was "likely" and that any resultant injury could be "harmful" eg a head injury. Reading down and across the grid, only that produces something called a "substantial risk", not one that is "moderate" or "tolerable". When one looks at the action needed box there is a stark difference between what should be done for "substantial" and what little for "tolerable". Cost implications are mentioned.


[60]
In 7/5 the risk is classed as "tolerable". This conclusion was explained by the witness saying that she took account of existing precautions and statistics of numbers of accidents.


[61]
The relevant pages are 7 on No. 7/4 and 8 on 7/5. In each it is section D of travelling to and from work locations. The wording is almost identical and I quote from 7/4 "Slips/trips/falls - uneven pavements - inclement weather - slippery surfaces - obstacles - poorly light (sic) area". No. 7/4 is Miss Rodger's document. No. 7/5 is not, and importantly, in section D the words "inclement weather" are omitted. There was no very clear explanation for this. In both the risk rating (which refers to BS 8800) is "tolerable" (emphasis added). That document is No. 7/19 and in evidence it is clear that it is now out of date (see 6/24 and 6/25). As I have already said I am not persuaded that anything turns on this as such because the matrix or rating scale is the same. In both risk assessments there is no mention of personal protective equipment. The wording for preventative and protective measures is almost the same in both and I quote "Induction Programme. Hazard Awareness booklet. Instructions on appropriate footwear." The defenders' witness gave evidence that she knew there was slip risk which could produce a variety of injuries from fractures to head injuries and that such is harmful. In his closing speech counsel conceded (rightly in my view) that the risk here was not de minimis. Miss Rodger also spoke about induction training but no trainer of the pursuer gave evidence. She also claimed that the trade unions had accepted the risk assessments but I have no direct evidence about this.


[62]
In my opinion proper approach to these or any risk assessments is to be found in decided authority which has been well known since 2008. In Allison v London Underground the Court of Appeal were considering a risk assessment in an issue of a train driver who developed tenosynovitis from holding a traction brake controller. The trial judge had not made any finding as to whether the risk assessment has been "sufficient and suitable" (see paras 18, 21 and 22). At para 59 Smith LJ said this:

"...the right approach for the court to take in deciding whether the claimant's training had been adequate for health and safety purposes, was to examine whether the employer's risk assessment had been sufficient and suitable..."

 


[63]
The matter was put even more clearly by the same judge in Threlfall with judgment given in October 2010. Inter alia she said this:

"...35. ....the modern requirement is that (the employer) should take positive thought for the risks arising from his operations. Such an assessment is ...'logically anterior' to the taking of safety precautions... 36. In the present case the employer carried out a general assessment ...(which) failed to recognise that there was a risk ...if (it) had been properly carried out...it would...have recognised the need to consider the suitability of the protective gloves it provided... 44. ...if a residual risk exists, the regulation is engaged, provided that the risk of occurrence is not so slight as to be de minimis or the nature of the harm so trivial that it should properly be ignored..."

 


[64]
This guidance was available to employers before the accident to the pursuer and is in any event a common sense approach to the regulations.


[65]
There are a number of other important matters to notice about the defenders' risk assessments. No. 7/4 is signed No. 7/5 is not. That may not matter. However, it is clear, as I have said, that the defenders were alive to the need to consider PPE in the context of a document covering home care services. (See for example page 11 of 7/4 covering earlier section of work.) What each assessment does not explain is how the control measures of, for example, training allows the risk level to be reduced. For section 4D which covers the facts of this case there are said to be training records (page 11 of 7/5 process) and where they are kept. I never saw these. The particular training was not evaluated and I am unclear of the significance of this. When one looks at Nos. 7/6 and 7/8 the matter becomes worse in my opinion.


[66]
I am prepared to accept that the pursuer may have seen both of these documents. No. 7/6 is called "Trainer Track". On page 4 I have excerpted the following:

"Health and Safety Slip, Trip Card

·  1/3 of all accidents are slips trips/falls ...

·  Typical issue ... ice in winter ...

·  Importance of meaning appropriate footwear (Flat full covered shoe)"

 


[67]
In my view that is not adequate training or instruction. It does not say what is "appropriate footwear" and the particular reference to a shoe seems to me more to cover wet weather. That seems to me to be confirmed by Martha Waugh's answer in her evidence at page 24E. Nobody said how footwear was checked or assessed. The pursuer and Martha were wearing different footwear.


[68]
No. 7/8 is entitled "Hazard Awareness". Interestingly on the last page there is a general mention of PPE. In the section on Slips, Trips and Falls the following is written:

"Ice/snow - when walking to and from work locations extra care should be taken in inclement weather, and staff should ensure that safe adequate footwear is worn at all times..."

 


[69]
Again, however fine these words may be, the proof did not disclose how the defenders saw to it that the correct footwear was in use. On the evidence they certainly did not provide any and it was just left to the individual employee.


[70]
I am critical of both these documents which are part of the induction programme and are to be read along with the risk assessments. Maybe more was said about these documents at training but I did not hear it. In view of my acceptance of Mr Greasley as a credible, reliable and accurate witness about the risks and the relatively simple precautions to reduce that, the following is my view and finding on the risk assessments. Neither risk assessment is "suitable and sufficient". I am critical of the methodology (see Threlfall passage quoted) and it is wholly unclear that the so called precautions in place justified a reduction of the risk to "tolerable". The evidence about the training and enforcement is vague and unsatisfactory. There has been no attempt to consider PPE for footwear. That in itself shows that whatever precautions the defenders thought they were taking could never amount to "adequate control by other means which are equally or more effective...". Furthermore, on the evidence I have just examined, it is impossible to say that this amounts to any adequate control of what the employees wore.


[71]
It follows that on the evidence I hold that the defenders are in breach of both the Regulations relied on by the pursuer.


[72]
For the same reasons I find the defenders 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.


[73]
That only leaves contributory negligence, what is to be made of the case against the pursuer. It is found on record in this way. There is an allegation (page 8) that the car in which she was a passenger could have been parked closer to Mrs Craig's home. It is not said that the pursuer should have exhorted the driver Martha Waugh to do that or what she should have done if Martha refused. There is then an averment about the lighting on the pathway which is said to be good. The particular failures are then said to be failure to keep a proper lookout and watch where she placed her feet; failure to wear suitable footwear and failure to report the weather and underfoot conditions.


[74]
The pursuer said that Martha did not want to drive round to the house and parked beside the path. There is no other evidence on the point and in my opinion that reflects no fault on the pursuer. At some point they would both have to get out of the car. The defenders are in any event liable for the driver's actions. I am prepared to accept that the weight of the evidence was that the path was properly lit. There is no evidence that it was not. However, the pursuer was never asked whether she failed to watch where she was going or how she placed her feet. She did give evidence about her footwear and produced (No 6/8 of process) the boots she wore. These were flat and ridged but plainly did not prevent her fall. I have held elsewhere that the defenders did not consider at all what was proper footwear; or PPE for footwear. The pursuer cannot be criticised for wearing what she thought was best for the conditions. That leaves a failure to report. The pursuer agreed that she could have made a phone call on a mobile to the coordinator. She felt, however, she would simply have been told to get on with the job and she said that, in conscience, she could not have left the ill person. I hold it unlikely that she would have been told to abandon the job. In any event it was clearly proved that the weather had been adverse for weeks and the defenders were well aware of that. The pursuer's understanding was that the staff had to do the work as soon as possible then get home. There is no clear evidence that making any phone call would have prevented this accident.


[75]
The issue of contributory negligence was not put to Mr Greasley. Miss Rodger did give some evidence on the point. She said she knew the locus but was not there that night. She said the driver should have driven to the door and that the line manager should have been contacted. He or she would have made a judgement. It might have made the carers late and it might depend on why they were going there (e.g. hoovering would not be a high priority) (in fact the visit was pressing and was to involve a full body wash, change of incontinence pads, adjust her position and check medication). None of that evidence persuades me that the pursuer would have been told to abandon. No evidence was given by any line manager.


[76]
Accordingly on the evidence no case of contributory negligence is shown at common law. The action, however, also involves health and safety legislation, when liability is strict. There was no clear system of reporting and no consideration of proper footwear. The pursuer was on an errand of mercy and in my view it cannot be said that she embarked on a risky course of action. I do not find her at all to blame, and the suggestion of 60% in my view should not have been made and was unstateable.


[77]
Before leaving the case I should add that I have some sympathy with the defenders. They have many employees and a range of activities. They will not have an unlimited budget. However, everyone has to live and work through winters. It seems as if they become increasingly severe. In Scotland ice and snow or frost are not unusual although 2010 was exceptionally bad. However, the modern legislation caters for all that. Safety is to be levelled upwards. There are, even in this strict legislation, ways for defenders to cover liability and that is to have a proper risk assessment and to properly consider other means which are equally or more effective. In this case neither of those things was done. It is the "sea-change from the old ... common law ..." (Longmore LJ in Blair at para 14).


[78]
The interlocutor will reflect that I find the defenders liable under both Regulations and at common law, and further that there is no finding of contributory negligence against the pursuer.


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