Litigation: Kennedy v Cordia LLP – A Brave New World or Simply Business as Usual?

On 10 February 2016, the Supreme Court handed down what is being described as a landmark opinion, resulting from an appeal by the Pursuer in a Scottish personal injury case called Kennedy v Cordia LLP.  This opinion was keenly awaited by legal practitioners for the views it was likely to give on the admissibility of expert witnesses in civil court cases, the interpretation of certain employers’ duties under employment regulations and the role of the common law in these particular cases.

The facts of the case are surprisingly straightforward for a case to go all the way to the Supreme Court. Miss Kennedy, a home carer employed by Cordia, slipped on an icy path when walking to the house of one of her clients during the terrible winter of 2010 and sustained an injury to her wrist.  She had not been given protective equipment such as grips for her shoes which, she said, would have been likely to have prevented the fall.

The Pursuer argued that the defenders had breached their duties to her under the Personal Protective Equipment at Work Regulations 1992, the Management of Health and Safety at Work Regulations 1999 and the common law. 

Lord McEwan dealt with the case in the Outer House and he heard a Proof (a civil trial), at which the Pursuer led evidence from a health and safety expert. On the basis of that evidence, he decided that the defenders had breached both sets of regulations and the common law; the Pursuer was successful.

The Defenders appealed this decision to the Inner House of the Court of Session. Three Judges of the Inner House resoundingly disagreed with Lord McEwan’s approach and they reversed his decision.  In particular, they made some damning comments on the admissibility of expert evidence, saying that, in their opinion, health and safety was not something that an expert could opine upon, and they also fundamentally disagreed with the way that the regulations had been applied to this case.

Perhaps unsurprisingly, the Pursuer appealed to the Supreme Court.

In their opinion, the Supreme Court (a 5-judge bench) unanimously allowed the Appeal and restored the decision of Lord McEwan.  In doing so, they provided analysis which is of considerable significance in these types of cases.

Firstly, the Supreme Court dealt with expert evidence.  This had been a real concern for practitioners as the approach taken by the Inner House appeared to mean that expert witnesses were to be discouraged.  However, the Supreme Court acknowledged that expert witnesses are integral to the civil court sphere and set down four considerations which deal with whether or not the expert evidence will be admissible:

1. whether the proposed skilled witness will provide evidence which will assist the court;
2. whether the witness has the necessary knowledge and experience;
3. whether the witness is impartial in his or presentation and assessment of the evidence; and
4. whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

Although, for many of us, this is the test that we had thought always applied it is helpful to have this restated by the highest court in the UK in a current case which can be referred to in lower courts.

Secondly, the Supreme Court provided interpretation on the 1992 and 1999 Regulations and, in doing so, reminded everyone that the purpose of these regulations was to increase health and safety in the workplace.  Risks are to be avoided rather than reduced and risk assessments are a fundamental tool in doing so. 

In this particular case, the risk of slipping was known to Cordia and one of their own employees in evidence had accepted that there was the potential for serious injury should a slip occur.  The court was, therefore, entitled to say that an adequate risk assessment should have been carried out and, had it been carried out properly, then protective, preventative measures such as add-ons for shoes would have been provided. 

Finally, in terms of the common law, the Supreme Court restated that the fundamental principle was, and always has been, that an employer is bound to take reasonable care for the safety of his employees.  This is particularly important now where claims by employees require to be brought at common law, due to various changes in the status of the regulations in civil law and, therefore, helpfully confirms that workplace claims will still be successful where there has been a failure by the employer to adopt adequate controls.

Perhaps the real message to come out of this case is that all employers should be updating their risk assessments NOW and identifying ALL risks which may be encountered by their employees during their work duties, irrespective of their cause, and grading and controlling these properly.

So, are we really entering a brave new world or are we, as it seems to me, simply back to where we started? Only time will tell …!