Employer not liable for fall on icy public path: appeal court
A woman working as a carer visiting elderly people in their homes has lost her case against her employers for damages following a fall on an icy public path on her way to carry out a visit.
Tracey Kennedy had been awarded agreed damages for a wrist injury sustaned when she fell in severe weather conditions in December 2010, after the Lord Ordinary, Lord McEwan, ruled that her employers, Cordia Services Ltd, had failed to carry out a risk assessment or to provide suitable protective footwear against the risk of falling. But three appeal judges have now ruled that he failed to apply the health and safety regulations properly and that there was no basis in the evidence for his conclusions.
Lord Brodie, who delivered the leading judgment, said that although the Lord Ordinary had found that Cordia had failed to carry out sufficient risk assessments under reg 3 of the Management of Health and Safety at Work Regulations 1999, that could not be said to have caused Ms Kennedy's injury as the duty to assess risk was separate from the duty to take necessary measures identified as a result of the risk assessment.
Regarding the further duty the Lord Ordinary had held in point, reg 4 of the Personal Protective Equipment at Work Regulations 1992, imposing a duty in respect of "employees who may be exposed to a risk... while at work", was intended to apply to risks arising specifically from the work being carried out, rather than risks to which a worker might be exposed in the same way as any other member of the public. To impose a duty on employers in these circumstances "would not only be impracticable and irrational but would also constitute an unwarranted intrusion into the private lives of competent adults who within the sphere of day-to-day living are likely to be better placed to make judgments as to what will be conducive to their health and safety than their employers will be".
The risk to which Ms Kennedy was exposed was not "materially different from that to which any member of the public was exposed when making their way around Glasgow for whatever reason at the relevant time", reg 4 did not impose a duty on Cordia to provide Ms Kennedy with personal protective equipment aimed at reducing the risk of her slipping on snow and ice. In any event she had been given training which included discussion about coping with snow and ice, including selecting suitable footwear. There was insufficient evidence that wearing special attachments would have made a difference on the particular surface in question.
The Lord Ordinary had also failed to apply properly the common law test of showing that the precaution desired would have been commonly done by others in like circumstances, or was something obvious that it would have been folly to neglect.
Lord Brodie added that a witness, Mr Greasly, should not have been accepted as an expert, because the Lord Ordinary had not identified anything in his expertise which was not within the knowledge of the court: in accepting his opinion evidence the Lord Ordinary had abdicated his own role as decision maker.
Lady Smith and Lord Clarke delivered concurring judgments.