The facts of Kennedy v Cordia have been visited before. A home carer slipped and fell on an icy path when attending the home of an elderly patient and claimed for damages against her employer. An evidential hearing was required to determine liability. At first instance in the Outer House of the Court of Session, the pursuer was successful but, on appeal, the Inner House unanimously overturned the Lord Ordinary's decision.

The accident was of an 'everyday kind' and, as expected for a claim of this type, the pursuer based her claim on breach of (i) statutory duty (with reference to the Personal Protective Equipment at Work Regulations 1992 and the Management of Health and Safety at Work Regulations 1999); and (ii) common law.Specifically, she alleged that Cordia had failed to carry out a suitable and sufficient risk assessment and to provide adequate footwear.

On first blush, the Summons was in standard terms. Why then did this case reach the Supreme Court?


The issues of importance raised by this judgment are twofold. Firstly, could health and safety practice properly be the subject of expert evidence?Secondly, how far is an employer required to go in order to protect their employees against every day hazards or risks?On each question, the Supreme Court unanimously agreed with the decision of the Lord Ordinary and the key findings made are summarised below.

Expert Evidence

The pursuer's expert, Lenford Greasly, was properly regarded as a skilled witness.His evidence on all factual matters was admissible.It was relevant, assisted the judge and Mr Greasly had the required experience and qualifications to address each point. Crucially, his evidence that footwear attachments reduced the risk of slipping was admissible. So too was his evidence on health and safety practice (in relation to risk assessment).

Mr Greasly's opinion on what Cordia should have done to comply with the health and safety regulations appeared to be inadmissible.But an experienced judge could treat the statements as opinions of a skilled witness on health and safety practice and make up his own mind on the legal questions.The evidence formed a basis for the Lord Ordinary to decide whether Cordia had suitably evaluated risk and identified adequate safety measures.

The statements of opinion that Cordia had breached their statutory duty were not admissible.But that did not undermine the Lord Ordinary's decision because he had applied his own mind to the central legal issues.

The Management Regulations

Cordia failed to carry out a suitable and sufficient risk assessment.The risk of slipping in inclement weather was known to Cordia.It had been identified in a 2005 and a 2010 risk assessment but not properly evaluated.The risk was assessed as 'tolerable', implying that it had been reduced to the lowest level reasonably practicable and no additional safety measures were required.The risk should have been assessed as 'substantial'.

The Lord Ordinary was entitled to reach this conclusion.The evidence of Cordia's health and safety manager was that the risk of a home carer slipping on snow or ice while at work was a 'dead cert' and could cause serious injury.In light of each factor, the risk should have been assessed at the higher level and consideration given to individual control measures. That is, of suitable anti-slip footwear attachments.

Cordia had failed to comply with regulation 3(1).

The PPE Regulations

The duty under regulation 4(1) to provide suitable PPE to employees who may be exposed to a risk to their health and safety 'while at work' applied to Cordia. The time when the employee is exposed to the risk and not the cause of the risk is important.The risk does not need to be created by the work task.The duty will apply if the risk occurs 'during the time when [the pursuer] is in the course of her employment'.

The pursuer was exposed to the risk of slipping on ice and snow.The risk was caused by the natural environment to which the pursuer was exposed but, crucially, the exposure occurred at the time when the pursuer was working. Care was essential to vulnerable patients and, as such, the risk could not be avoided.Accordingly, Cordia required to either: (i) provide PPE aimed at reducing the risk of the pursuer slipping or (ii) to demonstrate that the risk was controlled by other equally or more effective means.

The Lord Ordinary was entitled to conclude that there had been a breach of regulation 4(1). Cordia's evidence as to other precautions in place was unsatisfactory.The Lord Ordinary was entitled to accept the evidence of Mr Greasly that anti-slip attachments which would have reduced the risk of slipping in wintry conditions were available at modest cost.In failing to supply the attachments, suitable PPE had not been provided.

Common Law

The Supreme Court confirmed that the context in which the common law of employer's liability has to be applied has changed over the last century.The formulation applied by the Inner House was 'outdated' and 'mistaken'.The Caparo (fair, just and reasonable) test was relevant to establishing whether a duty of care existed in novel situations.But in 2016, 'there is no doubt that an employer owes a duty of care towards its employees'.

The issue arising was not whether a duty existed but whether it had been breached. The purpose of risk assessment is to identify whether the 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 eradicate that risk.The outcome of the risk assessment is the first step in determining what precautions a reasonable employer would take in order to fulfil his common law duty.

Cordia had knowledge of the risk of slipping and its potentially serious consequences. Cordia should, if taking reasonable care, have inquired into the possible means of reducing that risk.Had such enquiries been made or a proper risk assessment completed, from the evidence accepted by the Lord Ordinary, the implication is that Cordia would have learned that footwear attachments were available.

The Lord Ordinary was entitled to conclude that Cordia, in their failure to provide the pursuer with the footwear attachments, had been negligent.

Summary _ the practical implications

'As the Lord Ordinary correctly stated, safety is to be levelled upwards.'

The above statement from the Supreme Court, and the decision made at common law, will provide comfort to pursuers. Strict liability under the health and safety regulations has been removed post-ERRA but the courts will robustly apply the common law.Where an employer is (or ought to have been) aware of hazardous working conditions but fails to adopt adequate control measures workplace claims will succeed.

Assessment and prevention of risk were identified as 'fundamental principles'.The process of risk assessment, which the court stated had received 'insufficient judicial attention' to date, will continue to be heavily scrutinised in all employer liability claims.Employers must correctly identify and appropriately grade all risks encountered by employees during their work duties, irrespective of their cause, and implement adequate control measures.

The employers most affected by this decision are those with staff who do not work at their employer's property but outdoors or elsewhere.Due consideration should now be given to whether current risk assessments require to be updated.This process requires investment of time and budget but is important to avoid incidents and claims in the future.


Laura McMillan

Partner & Director of Advocacy