A potential banana skin for employers? An icy path leads to the court

18 Feb 2016 | Comment


The appeal decision in the case of Kennedy V Cordia Services LLP has recently been published and it raises some interesting considerations for any accidents occurring after the introduction of the Enterprise & Regulatory Reform Act (ERRA).

The claim concerned a care worker, employed by Cordia (owned by Glasgow City council), who, in 2010, slipped on the icy/snowy footpath leading to the home of a patient she was visiting to administer care.  She suffered injury and pursued her employer in negligence and for breach of the Provision and Use of Personal Protective Equipment Regulations 1992 (PuPPE).  Cordia defended the claim, relying on risk assessments they had completed in 2005 and 2010 which assessed the slipping risk as “tolerable”.  They had provided their employees with a hazard awareness booklet and instruction on footwear to wear in inclement weather.  However, they did not provide any footwear or attachments.  Since 2005, four slips/trips had been reported to Cordia annually and in the year of the accident there had been sixteen similar accidents.

The claimant relied on the evidence of engineer, Mr Greasly, who reported that footwear attachments ought to have been provided. Indeed at least six other local authorities provided their carers with such attachments.  However, he could not confirm whether providing them would have made any difference in this case.

The claimant initially failed – the court thought much of Mr Greasly’s evidence had been inadmissible. The court also considered that the PuPPE only applied to risks which were created or increased by the nature of task an employee is required to do.  In this case the task was administering care for a patient. The risk of falling was no different for her than an ordinary member of the public.

On appeal the court reversed the decision. Mr Greasly’s evidence was indeed considered relevant and admissible. There was also an interesting discussion about PuPPE, it being adjudged that these apply to employers where the risk is one which arises in the course of one’s employment – not just activities arising from the work itself. Regulation 4 of PuPPE provides that:

Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

On the basis that Cordia’s own health & safety manager conceded that inclement weather could be classified as giving rise to a “substantial” risk of injury and that no consideration had been given to providing footwear or attachments, they were deemed as not having adequately controlled the risk.  The claim therefore succeeded.

Comment

Some may ask, how can an employer guard against all risks over which he has no control – such as private residential premises?  Possibly not, but he needs to show that risks have been considered and all reasonable preventative action taken.  In Kennedy’s case the employers were aware of slips/trips occurring in similar circumstances and that inclement weather creates a risk of injury.  They had not reduced that risk to its lowest level and the relative low cost of providing footwear attachments was a measure which would have discharged their burden.

The claimant was fortunate to be able to rely on a breach of the PuPPE and proving strict liability.  Her accident arose before the introduction of the ERRA.  Apart from those employed by the public sector claimants now can only rely on a breach of the common law duty of care in EL claims, rather than any breach of the various health & safety regulations.  Interestingly had Kennedy’s case only been brought in negligence the court commented that it may have been difficult to maintain any liability on the part of Cordia.  This is because the court would have had to conclude that, but for the provision of the footwear attachments, the accident would not have happened.  There was simply insufficient evidence on the point of causation.

As a matter of practice employers should use the various health & safety regulations as a guideline to show that by complying they have discharged their duty of care.  Inevitably such claims should be harder to prove than they have been historically.

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