Miss Kennedy was employed as a home carer by Cordia Services (owned by Glasgow City Council). Her work involved personal home care, with her principal duties being visiting clients in their home. In December 2010, one of Miss Kennedy’s patients was a terminally I’ll elderly lady, Mrs Craig. After visiting several other patients, Miss Kennedy arrived at Mrs Craig’s house.
Scotland had seen severe winter weather in the preceding few weeks, bringing with it snow and ice. His Kennedy was driven to her next appointment by a colleague, who parked close to a public footpath on a slope leading to Mrs Craig’s house. The footpath was covered with ice, with snow on top, and had not been salted or gritted. At the time, the appellant was wearing flat boots with ridged soles. Inevitably, Miss Kennedy slipped on the show and ice, and seriously aged herb wrist in the fall.
Subsequent investigations found that Cordia had conducted risk assessments, in line with the law.
However, whilst admitting to a risk from slips and deals in icy bit bad weather, the risk assessment found that to be of low risk. There was little attention given to suffering from such a workplace accident, either in the risk assessments, staff training, or internal guides. One point that was raised in this regard were recommendations for the relevant type of footwear (non-slip soles or similar) as PPE.
Miss Kennedy sued Cordia LLP for her accident at work. By not providing her with such specialist footwear, the employer was in breach of their duty of care and liability towards her.
It was accepted that Miss Kennedy had been travelling to and from work as she visited her various patients. Following a recent landmark EU employment law case, and other principles of civil law, that meant that Miss Kennedy was still ‘at work’, and therefore still under the employer/employee relationship, liabilities, and legal obligations at the time of her accident. Effectively, she had an accident at work, as she was an employee, not a member of the public using the footpath.
The Scottish courts ruled initially, relying on expert evidence, that Cordia was liable for her injury as they had failed to provide Miss Kennedy with protective footwear. This decision was overturned by the Inner House. Miss Kennedy appealed to the Supreme Court, concerning the evidence gave the expert witness, and whether her employer had been negligent or in breach of their statutory duties.
In the Supreme Court, the five-judge panel that heard Kennedy v Cordia LLP (Scotland) UKSC 2014/0247 turned to the matter of Cordia’s liability after disposing of the matter of the expert witness. Regarding the personal injury aspect of the case, the Court based its decision on the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) and the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), and the relevant EU Directives that they implement.
Setting aside the matter of the expert witness, regarding the personal injury aspects of the case, the Supreme Court went at length over the verdicts of the prior cases in the lower courts.
In their arguments, Lord Reed and Lord Hodge found themselves in agreement with the lower Scottish court. They found that the Lord Ordinary, Lord McEwan, was correct in finding Cordia liable for the accident by not providing adequate PPE (non-slip shoes). The employer was found to be negligent, and their assessments, and actions in litigation of, slips and falls on ice insufficient; sure care and attention, and all reasonable steps, had not been taken by the employer.
The Inner House, however, had overturned Lord McEwan’s verdict. The three-judge panel had several grounds for this reversal – including raising the issue of omission. The cited Lord Dunedin’s well-known paragraph from 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 show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or – to show that it was a thing which was so obviously wanted that it would be folly to anyone to neglect to provide it.”
Lord Reed and Lord Hodge did not find this persuasive. Miss Kennedy did not have the ability to exercise choice; by the nature of her employment, she was obliged to travel in bad weather and to take routes, act and dress according to her employer’s instructions.
Further, Lord Dunedin’s dictum had been clarified in a later case; whilst personal choice was still applicable, that did not remove the rights and obligations of employers you employees regarding health and safety.
The Supreme Court throughout the ruling showed great appreciation of the case advanced by the Lord Ordinary in the Inner House. After discussing causation (briefly), their verdict is a foregone conclusion.
The five judges found unanimously in favour of Miss Kennedy. Cordia Services LLP was found to be liable for her accident, negligent, and in breach of their obligations towards employee health and safety in this case.
Quite often the Supreme Court sets a significant legal precedent or clarifies areas of law. In this case, by contrast, nothing as major or significant was set out.
Rather, the existing rights and obligations of an employer to their employees regarding health and safety was reaffirmed and once again set out. Although not groundbreaking it its legal significance – the verdict maintains those legal rights and protections employees have regarding accidents at work.