Kennedy v Cordia: 10 years on – expert evidence and employers’ duties in personal injury claims

A lot has changed over the past 10 years, with seismic changes to our legal landscape ranging from Brexit legislation, to COVID regulations, to technological developments now commonplace that would have seemed almost fantastical in 2016.

Yet when it comes to case law, a decade can seem to pass in a flash. So it is with the landmark case of Kennedy v Cordia (Services) LLP [2016] UKSC 6, with the court’s decision still feeling relatively fresh for those working in the personal injury sector.

Our original article examining the judgment is available here: Kennedy v Cordia (Services) LLP - Decision of the Supreme Court | Brodies LLP. As we approach the 10^th anniversary of the UK Supreme Court decision, it is worth taking a look back at the case, and the implications it has had for litigation in Scotland and the rest of the UK.

Incident circumstances

The facts of this case were deceptively straightforward compared to the underlying legal arguments. The pursuer was employed as a carer by the defender, Cordia. Her role involved providing care to individuals in their own homes. On 18 December 2010, the pursuer slipped and fell on an icy footpath while attending a client’s home, suffering an injury to her wrist.

The pursuer raised a personal injury claim against Cordia, alleging breaches of their (a) statutory duties as her employer, with reference to the Personal Protective Equipment at Work Regulations 1992 (the “PPE Regulations”) and the Management of Health and Safety at Work Regulations 1999 (the “Management Regulations”); and (b) common law duty of care. In particular, the pursuer claimed that Cordia had failed to carry out a suitable and sufficient risk assessment, or to provide appropriate footwear.

Strict liability

It is worth noting that the incident pre-dated the Enterprise and Regulatory Reform Act 2013. At the time of the pursuer’s injury, the PPE and Management Regulations both imposed strict civil liability for a breach. In other words, if Cordia were found to have breached those Regulations, they would automatically be liable.

That is no longer the case in the UK. Following the 2013 Act coming into force, a court can refer to the Regulations to help interpret what an employer’s common law duties are; but, a breach of the Regulations will not necessarily mean that the employer is liable in a personal injury claim.

Timeline: How did we get to the Supreme Court?

2013

Proof (trial)

The case was heard at first instance in the Court of Session, Scotland’s highest civil court. After proof (trial), the Lord Ordinary held Cordia liable for the pursuer’s injuries, on the basis that Cordia’s risk assessments were not “suitable and sufficient”; the pursuer had not received adequate training on what constituted “appropriate” footwear in poor weather conditions; and Cordia had not provided safe footwear or attachments for the pursuer’s shoes, such as “Yaktrax”, to reduce the risk of falling.

At proof, Cordia objected to the pursuer’s expert, Mr Greasly (known as a “skilled witness” in Scotland). They argued he “was not an expert and had no skills to assist the court.” The judge disagreed, finding Mr Greasly could give “expert” evidence in the field of health and safety.
2014

Court of Session appeal

Cordia appealed to the Inner House, which reversed the Lord Ordinary’s decision and determined that Cordia were not liable for the pursuer’s injuries.

The Inner House took the view that Cordia had not breached the Management Regulations; but even if they had, this only required Cordia to assess the risk of the pursuer falling, not to take any precautions as a result. It was also held that the PPE Regulations had not been breached, as these related to “risks at work” – which, in the court’s view did not include the pursuer’s accident. Walking on a footpath in icy weather was not a risk due to her work as a carer, but was the same for any member of the public. Finally, the court concluded it would not be “fair, just and reasonable” to impose a common law duty on Cordia to provide specific footwear or Yaktrax; the pursuer was an adult capable of choosing her own footwear, and on the evidence, it had not been shown that Yaktrax would have prevented her fall.

The Inner House also disagreed with the Lord Ordinary’s view on Mr Greasly’s evidence. The court did not recognise “health and safety” as a specialism which could form the basis of an expert opinion. While Mr Greasly himself was very experienced, this did not make him an “expert”. The Lord Ordinary was also criticised for his approach to Mr Greasly’s evidence, with the Inner House agreeing with Cordia’s argument that he had “abdicated his role as decision-maker in favour of Mr Greasly.”
2015

Supreme Court appeal

The case was appealed again, and heard in the UK Supreme Court on 19 October 2015.
2016

The decision

The Supreme Court issued its judgment on 10 February 2016.

Why was this case so important?

There were two key aspects which the Supreme Court considered on appeal:

What is the role of expert witnesses?
Did Cordia comply with its duties?

What is the role of expert witnesses (and expert evidence) in civil proceedings?

The example in this case was Mr Greasly’s opinion as an expert in “health and safety”, and how this should have been treated by the judge. However, this question had broader significance for parties in litigation, as to how they and the courts should approach expert evidence more generally.

Did Cordia comply with its duties under the Regulations and the common law?

The outcome of this case would have wider implications for employers, and the extent to which they needed to protect employees against everyday risks, such as poor weather conditions or public roads.

Expert evidence: health and safety

At the outset of the appeal, Cordia’s counsel acknowledged that “health and safety” could be the subject of expert opinion, an admission which the Supreme Court agreed was “correctly made”.

Since Kennedy, it has continued to be common practice for parties to instruct health and safety experts in relevant cases – giving evidence on questions such as, whether risk assessments have been carried out appropriately, and what steps an employer has (or should have) taken to protect their employees. While it remains the position that the courts will consider in each individual case whether instruction of an expert was justified, Kennedy provided a clear basis upon which health and safety experts could be legitimately instructed in personal injury cases.

The role of expert witnesses

The Supreme Court judgment went beyond the discrete issue of “health and safety” experts, to consider skilled witness evidence more generally. The court’s assessment of the role of experts, and the requirements of an expert’s opinion, have since become a touchstone for solicitors acting not only in personal injury cases, but any action which requires expert input.

The duties and responsibilities of expert witnesses

Before Kennedy, guidance had been given in previous cases on the duties and responsibilities an expert would be expected to fulfil in preparing reports and giving evidence to the court. What the Kennedy decision did was to recognise this guidance, and affirm the summary of an expert’s duties given by Mr Justice Creswell in the The Ikarian Reefer [1993] 2 Lloyd’s Rep 68:

Independence of expert evidence
Objectivity and unbiased opinion
No advocacy role
Disclosure of supporting facts and assumptions
Clarifying limits of expertise
Provisional opinions and stating qualifications
Timely communication of changed views

Independence of expert evidence

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.

Objectivity and unbiased opinion

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.

No advocacy role

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.

Disclosure of supporting facts and assumptions

An expert witness should make it clear when a particular question or issue falls outside his expertise.

Clarifying limits of expertise

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.

Provisional opinions and stating qualifications

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.

Timely communication of changed views

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.

At the same time, the Supreme Court confirmed the importance of an expert demonstrating they had the appropriate knowledge and experience to give evidence in a particular case. If a court is not satisfied that the expert is “independent and impartial” in terms of this list, their evidence may be excluded entirely.

Since Kennedy, these criteria have become the benchmark for experts instructed not only in personal injury cases, but all kinds of civil litigation. It provides a clear checklist, both for solicitors and for the judge, to assess whether an expert has complied with their duties – and therefore, whether their opinion is of assistance to the court, or should even be admitted (in other words, allowed) as evidence.

Assessing expert evidence

As well as affirming the duties and responsibilities experts have in litigated cases, the Supreme Court outlined four aspects which should be taken into account when determining how – and whether – expert evidence should be used:

“Admissibility”
The first question for any court in deciding whether expert evidence should be admitted (allowed), is what type of evidence the expert is providing.

The Supreme Court made clear that if an expert is giving evidence of fact – such as, measurements they have taken at an accident scene – this is admissible. In contrast, an expert’s opinion should only be allowed if it is “necessary”, if the court “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” (Wilson v Her Majesty’s Advocate 2009 JC 336). The classic example is an orthopaedic surgeon who can comment on the pursuer’s injury (e.g. a broken bone); a judge who is not a qualified doctor would not be able to comment on which bones had been broken, the prognosis for recovery, or any long-term medical effects. However, the expert must be able to explain the reason for their views – an unsupported statement of opinion is “worthless”.

The alternative is when a skilled witness gives “expert evidence of fact” – comment based on their own knowledge and experience, or that of others in their specialist field (such as from published articles or journals). In that circumstance, the court identified four key questions the court should consider, when deciding whether such expert evidence is admissible:
- “Whether the proposed skilled evidence will assist the court in its task;
- Whether the witness has the necessary knowledge and experience;
- Whether the witness is impartial in his or her presentation and assessment of the evidence; and
- Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.”
Ultimately, the Supreme Court judges concluded, “If skilled evidence of fact would be likely to assist the efficient determination of the case, the judge should admit it.” Importantly the expert is not the decision-maker; they can assist the court, but responsibility for deciding the legal case remains with the judge (or jury).
"Making sure that the expert performs his or her role”

This was noted as being the responsibility of solicitors and counsel, to decide whether the proposed expert has the appropriate expertise, whether their evidence is “otherwise admissible”, and to ensure both that the expert understands their duty to the court, and has all the information needed to give an opinion.
"Policing the performance of an expert’s duties"

The court noted that whether or not parties object to an expert, the judge should themselves test the expert’s evidence when deciding the extent to which reliance should be placed upon it.

Following Kennedy, the courts in Scotland have continued to take a robust approach to this issue, with examples of expert evidence being rejected as inadmissible when skilled witnesses do not comply with their duties to the court. In one recent example, the court found an expert was not suitably impartial for financial reasons, and so his evidence was ruled inadmissible (Marshall v Berkshire Hathaway International Insurance Company Limited [2024] SAC (Civ) 13).
“Economy in litigation”

The court recognised concerns about increasing costs in litigation, and noted options such as the court’s case management powers, and the potential to exclude expert evidence, to prevent costs from spiralling.

Again, this remains a live consideration in the Scottish courts today, with judges regularly considering whether expert evidence is actually required in any given case (such as, Cockburn v Hope [2024] CSOH 69).

**What was the outcome of the Kennedy v Cordia decision?**

Having considered the above, the Supreme Court held that the Lord Ordinary was entitled to accept Mr Greasly’s evidence, and the Inner House, on appeal, was incorrect to say this was inadmissible. The Lord Ordinary had not deferred to the expert and had “applied his own mind to the legal questions which he had to decide”.

From there, the Supreme Court determined that the Lord Ordinary was entitled to conclude there had not been a suitable and sufficient risk assessment completed by Cordia, breaching the Management Regulations; and, that Cordia were also in breach of the PPE Regulations, by not providing footwear or “Yaktrax” attachments.

Of wider significance, the Supreme Court disagreed with the Inner House view of the PPE Regulations. The PPE Regulations were not “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.” While the risks of falling on ice were objectively the same for the pursuer and any member of the public, it was due to the pursuer’s employment that she was obliged to go out in poor weather, and attend clients in their own homes regardless of the conditions. As her employer, Cordia was placing the pursuer in that position and therefore had a duty, both under the PPE Regulations and the common law, for her safety.

Accordingly, the Supreme Court found in favour of the pursuer and Cordia were liable for her injuries.

**What is Kennedy v Cordia’s legacy?**

At the time of writing, at least 200 subsequent cases have quoted, mentioned or followed the Kennedy decision. The subject matter of these cases has been wide ranging, covering both civil and criminal procedure, and each of the UK jurisdictions of Scotland, England & Wales and Northern Ireland. So what has made this case so significant?

For both experts and their instructing solicitors, the Supreme Court decision provided a clear guide of what exactly the court would expect from a skilled witness. As a result, the Kennedy decision has now become the “go to” to assess whether an expert has complied with their duties to the court, whether their evidence should be admissible, and to test the strength of that skilled witness evidence. This applies not only in personal injury cases, but in any case where an expert may be called upon to provide an opinion.

In turn, this decision has had broader application to other aspects of expert instructions; such as, whether an expert can be considered to have complied with the duties set out in Kennedy if they are instructed on a speculative or contingency fee basis.

The decision has also had practical implications for both pursuers and employers in negligence claims. While the PPE and Management Regulations no longer impose strict civil liability, the Supreme Court decision emphasised the “fundamental” principles of assessing and preventing risks to employees. Since Kennedy, therefore, the courts have continued to take a robust approach to an employer’s common law duties of care – in a range of workplace contexts.

As a result, the importance of the Kennedy decision, and its application both to expert instructions and to employers’ liability claims, is likely to be felt for many more years to come.