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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: https://www.bailii.org/uk/cases/UKSC/2016/6.html Cite as: 2016 SCLR 203, (2016) 149 BMLR 17, [2016] UKSC 6, 2016 GWD 4-97, 2016 SC (UKSC) 59, [2016] PIQR P9, [2016] WLR(D) 74, 149 BMLR 17, [2016] ICR 325, 2016 SLT 209, [2016] 1 WLR 597, [2016] WLR 597 |
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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.
4.
There had been severe wintry conditions in
central Scotland for a number of weeks prior to that date, with snow and ice
lying on the ground. Miss Kennedy was driven to the house by a colleague, who
parked her car close to a public footpath leading to the house. The footpath
was on a slope, and was covered in fresh snow overlying
ice.
It had not been
gritted or salted. Miss Kennedy was wearing flat boots with ridged soles. After
taking a few steps along the footpath, she
slipped
and fell to the ground,
injuring her wrist.
Risk assessments and precautions
5.
Cordia
were aware of the risk that their home
carers might
slip
and fall on snow and
ice
when travelling to and from clients’
houses in winter. On average, four such accidents had been reported to them, or
to their predecessors the Council, during each year since 2005. During 2010
there were 16 such accidents.
Cordia
were also aware of the snowy and icy
conditions on the night in question, as those conditions had persisted for
weeks.
6.
In 2005 the Council carried out a risk
assessment in relation to home care services and client care. It covered risks
involved in “travelling to and from work locations”. The assessment noted the
risk of sprains, cuts, broken limbs, fractures and head injuries from slips
and
falls in inclement weather. The current preventive and protective measures were
noted as being the provision of a hazard awareness booklet and instruction on
appropriate footwear. The risk was assessed, using the risk rating scale
appended to the guidance document “Guide to Occupational Health and Safety
Management Systems” published by the British Standards Institution (BS
8800:2004). The resultant assessment was that the risk was “tolerable”, on the
basis that the severity of harm, and its likelihood, were respectively
categorised under the scale as “harmful” and “highly unlikely”. The assessment
of the risk as “tolerable”, in terms of the British Standard, implied that it
had been reduced to the lowest level that was reasonably practicable, and that
no additional controls were required.
7.
A further risk assessment was carried out by
Cordia
in July 2010. It did not expressly consider the risk of injury from
slips
and falls in inclement weather, but was otherwise in similar terms to the
2005 assessment. Neither assessment considered the possible provision of
personal protective equipment (“PPE”), such as non-
slip
attachments for
footwear.
8.
Miss Kennedy underwent an induction programme of
a kind which usually included a discussion of slips
and falls on
ice
in winter,
and the importance of wearing appropriate footwear. A hazard awareness booklet
provided to employees stated that extra care should be taken when walking to
and from work locations in inclement weather, and that staff should ensure that
safe adequate footwear was worn. What constituted safe adequate footwear was left
to the judgment of the individual employee.
The evidence of the expert witnesses
9. Evidence was led on behalf of Miss Kennedy,
under objection, from a consulting engineer, Mr Lenford Greasly. His
qualifications included a degree in engineering and a diploma in safety and
hygiene. He was a chartered member of the Institute of Safety and Health, and
an associate member of the UK Slip
Resistance Group. He was a former member of
the Health and Safety Executive, in which he had worked as an Inspector of Factories.
He had held senior management positions in industry, in areas including health
and safety. He had worked for many years as an engineering consultant advising
companies on health and safety, including carrying out
slip
testing and
advising on the adequacy of risk assessments. He had carried out or revised
between 50 and 100 risk assessments.
10.
In a report which he had prepared, Mr Greasly
referred to the relevant legislation and to advice published by the HSE,
including advice concerning reducing the risk of slips
on
ice
and snow by
providing anti-
slip
footwear. In that regard, there was advice to consider
finding out what footwear other similar businesses were using and whether it
worked. Mr Greasly’s report described various types of anti-
slip
attachment
which had been available for some years at a modest cost, and which were said
to increase grip in icy conditions. He cited several published papers reporting
on research into the
slipperiness
of footwear on icy and other surfaces, and
the effect on
slip-resistance
of using different types of sole and different
types of attachment. These included an American study which showed a reduction
in falls of 90% among elderly people who wore attachments sold under the trade
name Yaktrax. He described his own experience of using Yaktrax, and said that
he had found them helpful in increasing traction in icy conditions. His report
also included evidence that a number of employers whose staff had to work
outdoors in snow and
ice
had provided them with anti-
slip
attachments. They
included Royal Mail and a number of local authorities. He concluded that such
attachments reduced the risk of
slipping
on snow or
ice,
and that
Cordia
could
have investigated the adequacy of such devices and provided Miss Kennedy with them.
At para 4.9, he stated:
“[Cordia]
made a risk assessment
but the identified preventative measures relied exclusively on the employee,
via information and instruction, when dealing with inclement conditions.”
11.
In a supplementary report, Mr Greasly noted the
information which had been provided by Cordia
about the number of home carers
who
slipped
and fell on snow and
ice
each year. In the light of that
information, he referred to the PPE Regulations, stating at paras 3.11-3.12:
“3.11. The Personal Protective Equipment at Work Regulations 1992 address the supply and use of PPE. At regulation 4(1) it states ‘Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.’
3.12. The risk of slipping
on
ice
and snow was not controlled by other means, the controls that [
Cordia]
indicate
were undertaken were informative; the risk of
slipping
on
slippery
surfaces (as
identified by [
Cordia])
remained.”
12.
Mr Greasly also referred to further published
research. He concluded that the research showed that the use of appropriate
anti-slip
devices would help to avoid
slips
and falls. He expressed the opinion
that, had Miss Kennedy worn such devices then, on the balance of probabilities,
the risk of her falling on
ice
and snow would have been reduced and might have
been eliminated. He also included information that at least six Scottish local
authorities (including one to which he had referred in his earlier report)
provided their home carers with anti-
slip
attachments, although in two cases
the practice had been introduced after 2010.
13.
Mr Greasly expanded upon his reports in his oral
evidence. He explained how, in engineering terms, anti-slip
attachments reduced
the risk of
slipping.
Asked whether the wearing of such attachments would have
any effect in the conditions experienced by Miss Kennedy, he replied that it
ought to, as it would increase grip. In cross-examination, he is recorded as
having assented to the suggestion that he could not say whether Yaktrax would
have made any difference to Miss Kennedy on the occasion in question. In
re-examination, however, he expressed puzzlement at that answer, and said that
it was likely to have reduced and maybe eliminated the risk. More generally, he
accepted that different types of device were more or less effective in
different conditions. The provision of such equipment would however reduce the
risk. It was for the employer to determine the particular device which was most
suitable.
14.
Mr Greasly was critical of the omission from the
2010 risk assessment of a consideration of slips
and falls in inclement
weather. He was also critical of the categorisation of the risk of
slipping
and
falling as “tolerable”.
15.
Evidence was led on behalf of Cordia
from their
health and safety manager, Miss Rodger, who had prepared the 2005 risk
assessment on the basis of the British Standard and had been responsible for
the preparation of its 2010 successor. She was questioned, in particular, about
the categorisation of the risk of
slipping
and falling as “tolerable” rather
than “substantial”. In terms of the British Standard, the latter categorisation
would have led to the conclusion that work should not be started until the risk
had been reduced, and that considerable resources might have to be allocated to
reduce the risk.
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.
“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.”
22.
The Lord Ordinary was critical of the reliability
of Miss Rodger’s evidence. He stated that her evidence lacked a clear
explanation of her conclusion that the risk of home carers slipping
was
tolerable rather than substantial. He commented that her failure to consider
the provision of PPE had resulted in the breach of duty in all areas.
23.
Considering first the Management Regulations, on
the basis that a risk assessment was logically anterior to the taking of safety
precautions, the Lord Ordinary concluded that both assessments had been
unsatisfactory. Given Miss Rodger’s acceptance that a fall on ice
was likely
and that any resultant injury could be harmful, the risk should have been
assessed as substantial rather than tolerable. The precautions in place, in the
form of advice to wear safe and adequate footwear, were inadequate. There was
no specific advice as to what might constitute such footwear, and no checking
or assessment of what was worn. In those circumstances, the risk assessment had
not been “suitable and sufficient”, as required by regulation 3(1).
24.
Considering next the PPE Regulations, the Lord
Ordinary concluded that in the light of Mr Greasly’s evidence about the
availability of relatively simple precautions to reduce the risk, and the absence
of any consideration of PPE by Cordia,
it could not be said that the risk had
been adequately controlled by other means which were equally or more effective.
There was therefore a breach of regulation 4(1).
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.
28.
Secondly, a failure to comply with the Management
Regulations could not be a direct cause of injury. The regulations did not
impose any duty to take precautions. Lady Smith considered that Cordia’s
risk
assessment had in any event complied with the regulations, but did not explain
her reasons for reaching that conclusion. The other members of the Extra
Division did not express any opinion on the question.
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
36.
In this case, the Extra Division’s principal
concerns about Mr Greasly’s evidence were that he had expressed opinions on
what Cordia
should have done that involved questions of law, which it was the
task of the court to decide and that, in any event, most of his evidence was
unnecessary: see para 27 above. Lord Clarke in his concurring opinion expressed
concerns, more generally, about the unnecessary proliferation of allegedly
expert reports in personal injury cases. The Extra Division articulated their
more general concern in their finding (in para 4 of Lady Smith’s opinion, paras
15 and 16 of Lord Brodie’s opinion and para 40 of Lord Clarke’s opinion) that
the health and safety practice of employers could not be the subject matter of
expert evidence, either because it was a legal question within the knowledge of
the court or because it was not a recognised body of science or experience,
which was suitably acknowledged as being useful and reliable, and which could
properly form the basis of opinions capable of being subjected to forensic
evaluation. Counsel for
Cordia
conceded at the outset of this appeal that so
general an assertion was not correct and accepted that health and safety
practice could properly be the subject of expert evidence. We think that that
concession was correctly made.
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.
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
60.
In recent years there have been many statements
of concern in many jurisdictions about the disproportionate cost of civil
litigation. Scotland is no exception. Those concerns include the use of expert
witnesses. In the responses to consultation in the Scottish Civil Courts Review
some respondents, including the Scottish Legal Aid Board, expressed their
concern about the increased reliance on experts in litigation and the
consequent cost (Report of the Scottish Civil Courts Review (2009) vol 1, chapter
9, para 64). The latter concern was also discussed in the Taylor Review of
Expenses and Funding of Civil Litigation in Scotland (2013), chapter 3, paras
59-95. Cordia
in this case challenge what they describe in their written case
as “the largely uncontrolled proliferation of experts”.
Expert evidence in this case
63.
There were matters in Mr Greasly’s reports to
which Cordia
did not take exception. Lord Brodie acknowledged that there were
matters of fact which were admissible, such as his description of the locus,
including his measurements of the gradients, and his evidence of availability
on the market of anti-
slip
attachments to footwear. But there were other
factual matters which were admissible because they were relevant and might
assist a judge, and against which
Cordia
did not persist in their challenge in
this court. They included:
(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.
66.
The former objection may properly be made to Mr
Greasly’s statements that it was for Cordia
to consider the range of footwear
and attachments that were available (main report para 3.74) and that it was for
Cordia
to take steps to reduce the risk as far as was reasonably practicable
(main report para 4.11). They appear at first sight to be statements of opinion
on
Cordia’s
legal duty, which would not be admissible before lay fact finders
and should be avoided. An experienced judge however could readily treat the
statements as the opinions of a skilled witness as to health and safety
practice, based on the Management Regulations and the PPE Regulations and on
HSE guidance, and make up his own mind on the legal question. The Lord Ordinary
(at para 48 of his opinion) interpreted passages in Mr Greasly’s supplementary
report as expressing an opinion that
Cordia
had breached their statutory duty. If
that were a correct interpretation of what Mr Greasly had said, those passages
of his evidence were not admissible. But, as we shall explain, that does not
undermine the Lord Ordinary’s decision, because he applied his own mind to the
central legal issues.
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.
69.
When Cordia
responded to an invitation from this
court to submit a note identifying the specific passages in Mr Greasly’s
reports to which they objected, they identified passages which raised the
issues which we have discussed above. They also objected to several statements
of the obvious, such as that anti-
slip
attachments with spiked steel
projections must help increase traction in snow and
ice
and so reduce the risk
of
slipping.
But these statements were a small part of Mr Greasly’s narrative
and are not objectionable. It would be different if the sum and substance of an
expert’s report were blindingly obvious. Such a report would be inadmissible
because it would not assist the court.
70.
In summary, the Extra Division erred in treating
much of the factual material in Mr Greasly’s report as inadmissible on the
basis that it was not skilled evidence that assisted the court. The Extra
Division also erred in excluding his evidence on how he would have carried out
the risk assessment. As we have said, his expressions of opinion as to what
Cordia
should have done were capable of being interpreted as legal opinions
that
Cordia
had breached statutory regulations and thus objectionable. But the
Lord Ordinary applied his own mind to the legal questions which he had to
decide: see our discussion of this part of his opinion in paras 21-25 above.
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
84.
Article 1 explains that the Directive lays down
minimum requirements for PPE used by workers at work. PPE is defined by article
2(1) as meaning “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 this objective.”
Article 3 lays down a general rule that “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
organization.” Article 6(1) requires member states to ensure that rules are
established for the use of PPE, and refers to the annexes to the Directive as a
guide. Annex I includes the risk of “slipping,
falling over” in a specimen risk
survey table for the use of PPE. Annex II sets out a non-exhaustive guide list
of items of PPE, including “Removable spikes for
ice,
snow or
slippery
flooring.”
Annex III sets out a non-exhaustive guide list of activities and sectors of
activity which may require the provision of PPE, including, under the category
of weatherproof clothing, “Work in the open air in rain and cold weather.”
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.
91.
Considering the risk of slipping
in accordance
with the general principles set out in Schedule 1 to the Regulations, and
adopted from article 6(2) of the Framework Directive, it could not be avoided:
for wholly understandable reasons, it was
Cordia’s
position that the
individuals who were dependent on the services of the home carers had to be visited
if at all possible. The risk therefore had to be evaluated and addressed in
accordance with those principles, which set out a hierarchical order in which the
measures necessary to protect health and safety should be considered.
92.
Was there, then, a sufficient evaluation of the
risk, and of the necessary measures? In relation to these matters, the Lord
Ordinary’s conclusion was based on findings which he was entitled to make on
the evidence, and on a proper understanding of the law. As he noted, the risk
of a home carer slipping
on snow or
ice
while at work, on the way to a client’s
home, was accepted to be likely - “a dead cert”, as Miss Rodger put it. It was
also accepted that the injuries which might be sustained included fractures and
head injuries, and were therefore potentially serious. No consideration,
however, was given to the possibility of individual protective measures, before
relying on the measure of last resort, namely giving appropriate instructions
to employees. Even then, the instructions given, in the form of advice to wear
appropriate footwear, provided no specification of what might be appropriate.
In these circumstances, the Lord Ordinary was entitled to conclude that there
had been a breach of regulation 3(1).
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
98.
As we have explained, the Lord Ordinary was
entitled to find that there had been a failure to carry out a suitable and
sufficient risk assessment. Such an assessment would have involved specific
consideration of the possibility of individual protective measures to reduce
the risk of home carers slipping
and falling on snow and
ice.
Had that
possibility been considered, the Lord Ordinary found that a number of devices
were available which would have been suitable to reduce the risk. Since none was
provided, it followed that there was a breach of regulation 4(1) of the PPE
Regulations.
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.
112.
In the present case, Cordia
were aware of a history
of accidents each year due to their home carers
slipping
on snow and
ice,
and
they were aware that the consequences of such accidents were potentially
serious. Quite apart from the duty to carry out a risk assessment, those
circumstances were themselves sufficient to lead an employer taking reasonable
care for the safety of its employees to inquire into possible means of reducing
that risk.
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.
114.
It is necessary only to add that the familiar
threefold test set out by Lord Bridge of Harwich in Caparo is not
relevant in this context, as counsel for Cordia
acknowledged. That test is
concerned with the imposition of a duty of care in novel circumstances. There
is no doubt that an employer owes a duty of care towards its employees. The
question in the present case is not whether a duty of care existed, but whether
it was fulfilled.
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