Can you have a ‘health and safety expert’? The Supreme Court decides

News | Tue 23rd Feb, 2016

Tom Restall analyses the decision in Kennedy v Cordia (Services) LLP [2016] UKSC 6.

The Supreme Court has recently decided whether or not a judge “abdicated his role as decision-maker” when he accepted the evidence of a ‘health and safety expert’. The court also considered a number of other important issues relating to employers’ liability in personal injuries cases. The decision on the facts of the case will further be of interest to those dealing with slip and trip accidents generally.

Health & Safety Expert?

Mr Greasley, a consulting engineer and health and safety advisor, gave evidence in this Scottish case concerning a home carer, Miss Kennedy, who slipped on snow and ice outside a client’s home. Mr Greasley criticised the employer’s risk assessments and commended anti-slip footwear attachments such as Yaktrax.

The Supreme Court analysed the components of Mr Greasley’s evidence. Much of his evidence was simply on matters of fact, such as a description of the locus, the availability on the market of anti-slip attachments, research literature on the effectiveness of different types of footwear and devices to resist slipping, the practices of named public bodies in providing their workers with anti-slip devices, and his personal experience of using Yaktrax. The Lord Ordinary, at first instance, had been entitled to admit this evidence.

Mr Greasley had gone beyond this, however. He had criticised the risk assessments, relying on his own experience of conducting them, and had explained how they should be carried out. He had opined on what Cordia should have done. The Extra Division of the Inner House, on appeal, had held that much of his evidence should not have been allowed to be given and that the Lord Ordinary had “abdicated his role as decision-maker”. Their reasoning was that the health and safety practice of employers either was a legal question for the court, or was not ‘a recognised body of science or experience which was suitably acknowledged as being useful and reliable and which could properly form the basis of opinions capable of being subjected to forensic evaluation’.

But the Supreme Court disagreed. They endorsed the concession of counsel for Cordia that so general an assertion was not correct. Health & Safety practice could properly be the subject of expert evidence. While it was not for Mr Greasley to go so far as to express an opinion on whether Cordia had breached its statutory duty, the Lord Ordinary was entitled to accept his experience of carrying out and advising clients on risk assessments. It assisted the court that Mr Greasley had not only collated factual material, but had given an opinion on how the relevant risk assessment should have been carried out. Indeed the Supreme Court held:

“It may on occasion be expedient to instruct a witness with general health and safety experience to give skilled evidence on a specific question of health and safety practice which he or she may not have encountered in the past. Such a witness may have to conduct research.”

In this case Mr Greasley had included in his evidence material, which had been sent to him by his instructing solicitors, relating to the practices of other employers, obtained through freedom of information requests. The Supreme Court did not criticise this, though they noted that it would be incumbent on the solicitors to disclose to the witness and the parties any unfavourable material they had found as well.

Other Issues

• The direction of the law was to “level safety upwards”. So held the Lord Ordinary at first instance. While the Extra Division had criticised this on appeal, the Supreme Court held that the Lord Ordinary was correct; his statement reflected the preamble to the EU’s Framework Directive (which was implemented by the Management of Health and Safety at Work Regulations 1999).
• The importance of risk assessments. The Supreme Court endorsed the dicta of Smith LJ in Allison v London Underground [2008] EWCA Civ 71 that the most logical way to approach a question of the adequacy of precautions taken by an employer was through consideration of the suitability and sufficiency of the risk assessment.
• When do the PPE Regulations apply? The Extra Division had held that the PPE Regulations did not apply because Miss Kennedy was on her way to the client’s home. They considered that the risks to which the Regulations applied were those created by the nature of the work itself, i.e. while administering care to the elderly client. The Supreme Court had little difficulty rejecting this. The PPE Regulations bite when the employee is “at work”, which refers to the time she is exposed to the risk, not the cause of the risk, and that included travel between clients’ homes.
• Paternalism, the common law duty, and anti-slip attachments. When considering Cordia’s common law duty to its employees, the Extra Division had felt it was unreasonable for Cordia to have to provide special footwear when Miss Kennedy was in just the same position as any other member of the public travelling on foot in wintry conditions. But the Supreme Court, while sympathising with the concern that the law should not be excessively paternalistic, rejected this similarity. Unlike an ordinary member of the public, Miss Kennedy could not choose to stay indoors; she could not keep to roads and pavements that had been cleared or treated; she had to follow her employer’S instructions. The Extra Division had relied on a 1909 decision on the employer’s common law duty, namely that it was to take such precautions as are commonly taken or any other precautions that are so obviously wanted that it would be folly to neglect them. But the Supreme Court made clear that the duty was now wider than this, and reaffirmed the formulation of the duty of care set out in Baker v Quantum Clothing [2011] UKSC 17. The Lord Ordinary had been entitled to conclude that Cordia had been negligent for failing to provide anti-slip footwear attachments to Miss Kennedy.