02 March, 2016
Mrs Kennedy was employed as a home carer. Her work involved visiting clients in their homes and providing personal care. In December 2010, at around 8pm, she was required to visit an elderly lady. There had been severe wintry conditions in central Scotland, with snow and ice lying on the ground. Mrs Kennedy had been driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope, and was covered with fresh snow overlying ice. It had not been gritted or salted. She was wearing flat boots with ridged soles. After taking a few steps, she slipped and fell, injuring her wrist.
The employer had carried out a risk assessment which assessed the risk of slipping and falling in inclement weather when travelling to and from clients' homes as "tolerable". The assessment did not consider the possible provision of personal protective equipment (PPE), such as non-slip attachments for footwear. The employer had given its employees a hazard awareness booklet and advised them to wear safe, adequate footwear in inclement weather.
At first instance, relying on expert evidence, the employer was found liable for the claimant's injury on the basis that they did not provide her with protective footwear. This decision was overturned and subsequently appealed to the Supreme Court. The appeal concerned the admissibility of evidence given by the expert witness, and whether the employer had been in breach of its statutory duties or negligent.
The Supreme Court found for the employee; she was "at work" whilst she was travelling between the home of one client and that of another. A suitable and sufficient risk assessment should have considered the possibility of providing PPE to reduce the risk of home carers slipping on snow and ice. A number of anti-slip products were available which would have reduced the risk to Mrs Kennedy. The Court commented that an employer's duty was no longer confined to taking such precautions as were commonly taken, or such other precautions as were "so obviously wanted that it would be folly in anyone to neglect to provide" them.
In addition, the court gave guidance on the use of expert evidence in civil cases, and the admissibility of such evidence. The Claimant had relied on evidence from a Consultant Engineer, the Judge commented that he had experience and qualifications in health and safety. His evidence on factual matters was relevant and admissible. He had the necessary experience and qualifications to explain how anti-slip attachments reduced the risk of slipping. Whilst conceding that some of his statements might appear to be inadmissible expressions of opinion on the employers legal duties, an experienced judge could treat the statements as opinions as to health and safety practice, and make up his own mind on the legal questions.
Whilst this is a Scottish case, it is certainly persuasive. This decision makes it abundantly clear that employers who fail to carry out proper risk assessments are at risk. Not only must employers consider the potential risks, they must also consider practical solutions to reduce risk to the lowest possible level for employees.
This decision makes it abundantly clear that employers who fail to carry out proper risk assessments are at risk. Not only must employers consider the potential risks, they must also consider practical solutions to reduce risk to the lowest possible level for employees.
Where employers supply PPE to employees and where they are not in position to monitor such use, they must ensure that they provide sufficient training to show employees how and when to use the appropriate equipment.
Furthermore, this case has implications as to the admissibility of health and safety expert evidence. In the future it will be harder for defendants to argue that such evidence should be excluded.
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