Is it time to Risk Assess your Risk Assessment?

Supreme Court Decision in Tracey Kennedy v Cordia (Services) LLP 2016 [UKSC6]

The Supreme Court’s recent Decision in the case of Kennedy v Cordia overturning the Decision of the Extra Division of the Court of Session (Scottish Appeal Court) brings into focus the vital importance of Risk Assessments.

Mrs Kennedy was a Home Carer employed by the Defenders and during the severe winter of 2010 was visiting a terminally ill housebound person when she slipped on snow and ice and fractured her wrist.

The Defenders 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 the winter. Previous accidents had been reported to them and to their predecessors, Glasgow City Council, every year since 2005.

In 2005 the Council had carried out a risk assessment in relation to Home Care services identifying risks involved in travelling to and from work locations.  The risk assessment described the risk as tolerable. The preventative and protective measures noted were the provision of a hazard awareness booklet and instruction on appropriate footwear.

A further risk assessment was carried out by the Defenders in July 2010 and was similar in terms to the 2005 assessment.  Neither assessment considered the possible provision of personal protective equipment (PPE) such as nonslip attachments for footwear.  Such attachments were never supplied to employees, rather what constituted safe and adequate footwear was left to the judgement of the individual employee.

Before the Lord Ordinary at first instance the Pursuer led evidence from a Health and Safety expert who expressed the opinion that the Defenders had not adequately assessed the risk nor had they provided correct work equipment ie, footwear attachments.

The Defenders were held liable by the Lord Ordinary but the Extra Division of the Court of Session reversed the Decision as they considered the Lord Ordinary had erred in 5 aspects;

  1. The Extra Division held the evidence given by the expert Mr Greasly should not have been allowed and the Lord Ordinary had “abdicated his role as decision maker”.
  2. That a failure to comply with the Management Regulations could not be a direct cause of injury as the Regulations did not impose any duty to take precautions.  In any event, it was considered the Defenders’ risk assessment had complied with the Regulations.
  3. 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.  The risk to which the Pursuer had been exposed was not of that kind and was not materially different from the risks faced by any member of the public.  In any event, the risk of slipping was adequately controlled as on evidence it could not be said that wearing footwear attachments would have made any material difference.  The Extra Division were also critical of the Lord Ordinary’s Statement that the direction of the law was to “level safety upwards”.
  4. That in relation to the common law case, the Lord Ordinary 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, ie. a common law duty to determine what competent adult employees should wear on their feet when negotiating the streets of Glasgow was too wide.
  5. The Lord Ordinary was not entitled to find the Defenders liable in any event because he had made no finding that the wearing of attachments “would necessarily” have prevented the Pursuer’s fall.

The Supreme Court unanimously allowed the Pursuer’s Appeal, overturning the Extra Division’s findings.  In a detailed Judgment the Supreme Court were critical of the Extra Division’s approach to the case.

In relation to the expert witness, the Supreme Court disagreed entirely with the Extra Division’s approach, finding that the expert had the necessary experience and qualifications and that the issue in question could properly be the subject of expert evidence.  The Lord Ordinary had applied his own mind to the legal questions which he had to decide.

The Supreme Court also agreed that safety is to be “levelled upwards” and stated the most logical way to approach a question as to the adequacy of precautions taken by an employer was through a consideration of the suitability and sufficiency of risk assessments.

When considering the application of the PPE Regulations, the Supreme Court held the Lord Ordinary entitled to find there had been a failure to carry out a suitable and sufficient risk assessment and that 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 were provided, it followed that there was a breach of Regulation 4(1) of the PPE Regulations.

The Supreme Court were not persuaded by the Extra Division’s reasoning that the PPE Regulations did not apply because the Pursuer was not “at work” when travelling between clients.  Rather, the travelling from one client’s home to another was an integral part of her work.  The Supreme Court did not accept the Pursuer was in the same position as an ordinary member of the public going about her own affairs.  Unlike an ordinary member of the public, she could not choose to stay indoors or keep to roads and pavements which had been cleared or treated.

It was held employers’ duties were no longer confined to taking such precautions as are commonly taken or other such precautions are as obviously warranted.  A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious.

For employers this Judgment means that consideration should now be given to whether current risk assessments require updating.  Clearly, risk assessments cannot be treated as a “tick box” exercise.

All risks faced by employees during the course of their employment must now be properly identified, graded and adequately controlled. It is no longer sufficient simply to take the usual steps, rather safety must be “levelled up” and employers will also now require to consider whether specific PPE should be provided.

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