Wednesday, February 10th, 2016
Three Compass Counsel in Landmark Supreme Court Case
Ian Mackay QC, Andrew Smith QC and Jillian Martin-Brown
appeared for parties in the case of
KENNEDY v CORDIA LLP,
Supreme Court, 10 February 2016
Also appearing were Euan Mackenzie of Ampersand Stable and Frank Burton QC of the English Bar.
This case gives important guidance to lower courts and practitioners regarding the admissibility of expert evidence, the correct interpretation of certain regulations, the correct approach to causation and the modern approach to employers’ common law duties.
The pursuer was a home carer employed by the defenders to visit clients in their homes to provide personal care. In the winter of 2010 the pursuer suffered injury during the course of her employment when she slipped and fell on snow and ice on a path while on her way to visit a client. Among the precautions the pursuer averred should have been implemented was the provision by the defenders of non-slip attachments for footwear.
The pursuer’s case:
The pursuer alleged a breach by the defenders of their duties under the Personal Protective Equipment at Work Regulations 1992, the Management of Health and Safety at Work Regulations 1999 and at common law.
The Lower Courts:
A proof restricted to liability was held before Lord McEwan who found the defenders in breach of both sets of regulations and the common law.
The defenders reclaimed and an Extra Division allowed the appeal, holding that
(1) the 1992 Regulations did not apply to the task the pursuer was undertaking at the time of the accident,
(2) the 1999 Regulations had not been breached (and, in any event, could not give rise to a direct cause of injury)
(3) there was no breach of duty at common law having regard to the test for liability set out by Lord President Dunedin in Morton v William Dixon Ltd 1909 SC 807 (i.e. that where the alleged negligence consists of a fault of omission, it is necessary that the thing that was not done was a thing which was commonly done by other persons in like circumstances or that it was a thing which was so obviously required that it would be folly for anyone not to have done it).and
(4) that the pursuer had failed to establish any causative link between the various breaches and the injury sustained
The Supreme Court:
The pursuer appealed to the Supreme Court who unanimously allowed the appeal and restored the decision of the Lord Ordinary.
The Judgment of the Supreme Court (given by Lords Reed and Hodge, with whom the other Justices agreed) is of considerable significance in the field of personal injury litigation and has a much wider application than merely to the facts of this case.
Firstly, the Court in rejecting the approach of the Inner House, set out four considerations which govern the admissibility of skilled witness evidence, namely:
(i) whether the proposed skilled witnesses 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.
Secondly, the Court in rejecting the approach of the Inner House, gave an authoritative interpretation of the 1992 and 1999 Regulations, emphasising that the purpose of the regulations is to improve the health and safety of employees while at work, that the assessment of risk is a fundamental principle and that a hierarchical approach should be taken to risk prevention (whereby risks are to be avoided rather than reduced, means of collective protection are to be preferred to means of individual protection and merely giving instructions to employees is the last resort).
In addition, causation was established on a prima facia basis where there was a breach of the 1992 Regulations, because an inference arose that the failure to provide suitable PPE caused or materially contributed to the accident.
Thirdly, the Court in rejecting the approach of the Inner House, explained that Morton v William Dixon Ltd which was decided before the First World War, did not set out the present day common law relating to employer’s liability and that the fundamental, or ruling, principle remained that an employer was bound to take reasonable care for the safety of his employees. The context in which the common law of employer’s liability has to be applied, has changed since Morton v Dixon was decided.
The Supreme Court stated:
“… 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. 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 a risk assessment is therefore … logically anterior to determining what precautions a reasonable employer would have taken to fulfil his common law duty of care”.
“ 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  UKSC 17 …”.
The reference to employers requiring to “seek out knowledge of risks” is a strong indication that a modern pro-active approach to health and safety has superseded the reactive approach exemplified in Morton v Dixon
That passage should also be read alongside an earlier passage in the Judgment where the Court stated:
“ The expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field, which … creates the context in which the court has to assess an employer’s performance of its common law duty of care”.
This is an important and helpful statement of the law for employees, who now require to bring claims exclusively at common law in consequence of the Enterprise and Regulatory Reform Act 2013, which abolished civil liability for breaches of regulations enacted under the provisions of The Health and Safety at Work etc. Act 1974. The importance of the passages quoted above is that the regulations will continue to be of relevance in informing what an employer ought to have done when exercising reasonable care for the safety of his employees.
It will be for practitioners in future cases to develop and apply what has been said in Kennedy, including, in particular, what features of the statutory health and safety regime will be held to have informed the knowledge, experience and practice of reasonably prudent employers.
A copy of the judgement can be found here