Frank Burton QC in the Supreme Court

Frank Burton QC appeared for the appellant employee in the Supreme Court in the Scottish employer’s liability case Kennedy v Cordia (Services) LLP on 19 October 2015.

Kennedy (Appellant) v Cordia (Services) LLP (Respondent) UKSC 2014/0247

“On appeal from the Inner House of the Court of Session

Issues
             (i) Whether the Inner House erred in finding that Mr. Greasly’s evidence was inadmissible in certain material respects and in particular whether his evidence amounted to expert evidence.

(ii) Whether the Inner House erred in interfering with the Lord Ordinary’s finding that the defenders’ risk assessment was not suitable and sufficient.

(iii) Whether the Inner House erred in their interpretation of the Personal Protective Equipment at Work Regulations 1992, in particular by finding that the Regulations did not apply to the facts of the present case and that, if they did apply, the risk was adequately controlled by other means.

(iv) Whether the Inner House erred in finding that there was no breach of duty at common law.

(v) Whether the Inner House erred in finding that on the evidence before the Lord Ordinary it could not be said that any breach of statutory or common law duty had caused the incident.

Facts

             The pursuer was employed by the defenders as a home carer. Her duties included visiting clients in their homes to provide personal care. At 8pm on 18 December 2010, the pursuer slipped and fell whilst walking on a snow-covered path to provide care at a client’s house. She sustained an injury to her left wrist. The defenders were aware of this risk and had carried out risk assessments, but they had not considered whether personal protective equipment (such as non-slip attachments for footwear) could prevent or reduce the risk of home carers falling or slipping on snow and ice.

The Lord Ordinary heard evidence from Mr Greasly as a health and safety expert witness. Mr Greasly said in his report that such non-slip attachments were readily available and would have reduced the risk. He also referred to communications from other Councils which had issued attachments to their home carers, and spoke to the purpose, design and efficacy of the attachments. The Lord Ordinary found the defenders liable.

The Inner House allowed the Reclaiming Motion. It considered that Mr Greasly’s evidence was inadmissible in certain key respects, that the Lord Ordinary erred in law in finding the defenders liable under the 1999 Regulations, that the 1992 Regulations were not engaged (and if they were the risk was adequately controlled), that there was no breach of duty at common law, and that in any event the Lord Ordinary was not entitled to find that a breach of statutory or common law duty caused the accident. The pursuer appeals to the Supreme Court.”

Supreme Court of the United Kingdom