Kennedy v Cordia (Services) LLP
[2016] UKSC 6
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
Four considerations govern the admissibility of skilled (expert) evidence: whether it will assist the court, whether the witness has the necessary knowledge and experience, whether the witness is impartial, and whether there is a reliable body of knowledge or experience underpinning the evidence. On employers' duties, an employer must carry out a suitable and sufficient risk assessment, and where a risk to employees at work is not adequately controlled by other equally effective means, regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 obliges the employer to provide suitable protective equipment; a reasonably prudent employer's common law duty of care is likewise informed by the now general practice of risk assessment.
Facts
Miss Kennedy was employed by Cordia (Services) LLP as a home carer in Glasgow. At about 8 pm on 18 December 2010, during severe wintry conditions that had persisted for weeks, she visited a terminally ill client and, walking up a sloping public footpath covered in fresh snow overlying ice while wearing flat boots with ridged soles, she slipped and fell, injuring her wrist. Cordia knew of the risk - home carers had suffered such accidents every year since 2005, with 16 in 2010 - but provided no anti-slip attachments for footwear, relying instead on advice to employees. Her engineering consultant gave evidence that effective anti-slip attachments such as Yaktrax were available and used by other employers.
Judgment Summary
The Supreme Court (Lords Reed and Hodge, with whom Lady Hale, Lord Wilson and Lord Toulson agreed) allowed Miss Kennedy's appeal, restoring the Lord Ordinary's finding of liability which the Extra Division had reversed. The court held that the consultant's evidence was admissible, setting out four considerations governing skilled evidence, and that Miss Kennedy was exposed to a risk to her health and safety at work which Cordia's purely advisory precautions did not adequately control, so that the failure to provide anti-slip attachments was a breach of regulation 4(1) of the PPE Regulations and of the risk assessment duty in the Management Regulations. The court further held that Cordia's knowledge of the yearly history of such accidents meant the Lord Ordinary was entitled to find them negligent at common law for failing to provide the attachments.
Key Quotes
"There are in our view four considerations which govern the admissibility of skilled evidence: (i) whether the proposed skilled evidence will assist the court in its task; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and (iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence."
— Lord Reed and Lord Hodge, para 44(verbatim, verified against the judgment)
"In the present case, Cordia were aware of a history of accidents each year due to their home carers slipping on snow and ice, and they were aware that the consequences of such accidents were potentially serious. Quite apart from the duty to carry out a risk assessment, those circumstances were themselves sufficient to lead an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing that risk."
— Lord Reed and Lord Hodge, para 112(verbatim, verified against the judgment)
Subsequent Treatment
The leading UK authority on the admissibility of skilled evidence and on the PPE Regulations, though for accidents after 1 October 2013 section 69 of the Enterprise and Regulatory Reform Act 2013 (noted in the judgment) removed the direct civil right of action for breach of such regulations.
What To Do Next
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