Hilary
Term
[2016] UKSC 6
On appeal from: [2014] CSIH 76
JUDGMENT
Kennedy (Appellant) v Cordia (Services) LLP
(Respondent) (Scotland)
before
Lady Hale, Deputy
President
Lord Wilson
Lord Reed
Lord Toulson
Lord Hodge
JUDGMENT GIVEN ON
10 February 2016
Heard on 19 October 2015
|
Appellant
Frank Burton QC
Ian Mackay QC
Euan G Mackenzie
(Instructed by
Digby Brown LLP)
|
|
Respondent
Andrew Smith QC
Jillian
Martin-Brown
(Instructed by
Glasgow City Council)
|
LORD REED AND LORD HODGE: (with
whom Lady Hale, Lord Wilson and Lord Toulson agree)
1.
This appeal from the Court of Session arises from an accident of an
everyday kind, but raises a number of issues of practical importance relating
to the Personal Protective Equipment at Work Regulations 1992 (“the PPE
Regulations”) (SI 1992/2966) and the Management of Health and Safety at Work
Regulations 1999 (“the Management Regulations”) (SI 1999/3242), to employers’
liability at common law, and to expert evidence in this field.
The accident
2.
The appellant, Miss Kennedy, was employed by the respondents, Cordia
(Services) LLP (“Cordia”), as a home carer in Glasgow. Cordia are wholly owned
by Glasgow City Council, and provide home care services on its behalf. Those
services were previously provided by the Council itself. Miss Kennedy’s
principal duty was to visit individuals in their homes and to provide them with
personal care.
3.
At about 8 pm on 18 December 2010 Miss Kennedy
was required to visit an elderly lady, Mrs Craig, who was terminally ill and
incontinent, at her home in order to provide her with palliative and personal
care. The visit was one of a series of visits carried out by Miss Kennedy
during her shift. She travelled to Mrs Craig’s house after visiting another
client.
4.
There had been severe wintry conditions in
central Scotland for a number of weeks prior to that date, with snow and ice
lying on the ground. Miss Kennedy was 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 in fresh snow overlying ice. It had not been
gritted or salted. Miss Kennedy was wearing flat boots with ridged soles. After
taking a few steps along the footpath, she slipped and fell to the ground,
injuring her wrist.
Risk assessments and precautions
5.
Cordia were aware of the risk that their home
carers might slip and fall on snow and ice when travelling to and from clients’
houses in winter. On average, four such accidents had been reported to them, or
to their predecessors the Council, during each year since 2005. During 2010
there were 16 such accidents. Cordia were also aware of the snowy and icy
conditions on the night in question, as those conditions had persisted for
weeks.
6.
In 2005 the Council carried out a risk
assessment in relation to home care services and client care. It covered risks
involved in “travelling to and from work locations”. The assessment noted the
risk of sprains, cuts, broken limbs, fractures and head injuries from slips and
falls in inclement weather. The current preventive and protective measures were
noted as being the provision of a hazard awareness booklet and instruction on
appropriate footwear. The risk was assessed, using the risk rating scale
appended to the guidance document “Guide to Occupational Health and Safety
Management Systems” published by the British Standards Institution (BS
8800:2004). The resultant assessment was that the risk was “tolerable”, on the
basis that the severity of harm, and its likelihood, were respectively
categorised under the scale as “harmful” and “highly unlikely”. The assessment
of the risk as “tolerable”, in terms of the British Standard, implied that it
had been reduced to the lowest level that was reasonably practicable, and that
no additional controls were required.
7.
A further risk assessment was carried out by
Cordia in July 2010. It did not expressly consider the risk of injury from
slips and falls in inclement weather, but was otherwise in similar terms to the
2005 assessment. Neither assessment considered the possible provision of
personal protective equipment (“PPE”), such as non-slip attachments for
footwear.
8.
Miss Kennedy underwent an induction programme of
a kind which usually included a discussion of slips and falls on ice in winter,
and the importance of wearing appropriate footwear. A hazard awareness booklet
provided to employees stated that extra care should be taken when walking to
and from work locations in inclement weather, and that staff should ensure that
safe adequate footwear was worn. What constituted safe adequate footwear was left
to the judgment of the individual employee.
The evidence of the expert witnesses
9. Evidence was led on behalf of Miss Kennedy,
under objection, from a consulting engineer, Mr Lenford Greasly. His
qualifications included a degree in engineering and a diploma in safety and
hygiene. He was a chartered member of the Institute of Safety and Health, and
an associate member of the UK Slip Resistance Group. He was a former member of
the Health and Safety Executive, in which he had worked as an Inspector of Factories.
He had held senior management positions in industry, in areas including health
and safety. He had worked for many years as an engineering consultant advising
companies on health and safety, including carrying out slip testing and
advising on the adequacy of risk assessments. He had carried out or revised
between 50 and 100 risk assessments.
10.
In a report which he had prepared, Mr Greasly
referred to the relevant legislation and to advice published by the HSE,
including advice concerning reducing the risk of slips on ice and snow by
providing anti-slip footwear. In that regard, there was advice to consider
finding out what footwear other similar businesses were using and whether it
worked. Mr Greasly’s report described various types of anti-slip attachment
which had been available for some years at a modest cost, and which were said
to increase grip in icy conditions. He cited several published papers reporting
on research into the slipperiness of footwear on icy and other surfaces, and
the effect on slip-resistance of using different types of sole and different
types of attachment. These included an American study which showed a reduction
in falls of 90% among elderly people who wore attachments sold under the trade
name Yaktrax. He described his own experience of using Yaktrax, and said that
he had found them helpful in increasing traction in icy conditions. His report
also included evidence that a number of employers whose staff had to work
outdoors in snow and ice had provided them with anti-slip attachments. They
included Royal Mail and a number of local authorities. He concluded that such
attachments reduced the risk of slipping on snow or ice, and that Cordia could
have investigated the adequacy of such devices and provided Miss Kennedy with them.
At para 4.9, he stated:
“[Cordia] made a risk assessment
but the identified preventative measures relied exclusively on the employee,
via information and instruction, when dealing with inclement conditions.”
11.
In a supplementary report, Mr Greasly noted the
information which had been provided by Cordia about the number of home carers
who slipped and fell on snow and ice each year. In the light of that
information, he referred to the PPE Regulations, stating at paras 3.11-3.12:
“3.11. The Personal Protective
Equipment at Work Regulations 1992 address the supply and use of PPE. At
regulation 4(1) it states ‘Every employer shall ensure that suitable personal
protective equipment is provided to his employees who may be exposed to a risk
to their health or safety while at work except where and to the extent that
such risk has been adequately controlled by other means which are equally or
more effective.’
3.12. The risk of slipping on
ice and snow was not controlled by other means, the controls that [Cordia] indicate
were undertaken were informative; the risk of slipping on slippery surfaces (as
identified by [Cordia]) remained.”
12.
Mr Greasly also referred to further published
research. He concluded that the research showed that the use of appropriate
anti-slip devices would help to avoid slips and falls. He expressed the opinion
that, had Miss Kennedy worn such devices then, on the balance of probabilities,
the risk of her falling on ice and snow would have been reduced and might have
been eliminated. He also included information that at least six Scottish local
authorities (including one to which he had referred in his earlier report)
provided their home carers with anti-slip attachments, although in two cases
the practice had been introduced after 2010.
13.
Mr Greasly expanded upon his reports in his oral
evidence. He explained how, in engineering terms, anti-slip attachments reduced
the risk of slipping. Asked whether the wearing of such attachments would have
any effect in the conditions experienced by Miss Kennedy, he replied that it
ought to, as it would increase grip. In cross-examination, he is recorded as
having assented to the suggestion that he could not say whether Yaktrax would
have made any difference to Miss Kennedy on the occasion in question. In
re-examination, however, he expressed puzzlement at that answer, and said that
it was likely to have reduced and maybe eliminated the risk. More generally, he
accepted that different types of device were more or less effective in
different conditions. The provision of such equipment would however reduce the
risk. It was for the employer to determine the particular device which was most
suitable.
14.
Mr Greasly was critical of the omission from the
2010 risk assessment of a consideration of slips and falls in inclement
weather. He was also critical of the categorisation of the risk of slipping and
falling as “tolerable”.
15.
Evidence was led on behalf of Cordia from their
health and safety manager, Miss Rodger, who had prepared the 2005 risk
assessment on the basis of the British Standard and had been responsible for
the preparation of its 2010 successor. She was questioned, in particular, about
the categorisation of the risk of slipping and falling as “tolerable” rather
than “substantial”. In terms of the British Standard, the latter categorisation
would have led to the conclusion that work should not be started until the risk
had been reduced, and that considerable resources might have to be allocated to
reduce the risk.
16.
Miss Rodger accepted that a slip could produce
injuries which were properly categorised as “harmful”, such as fractures and
head injuries, and also accepted, in the light of the annual statistics
referred to in para 5 above, that it was “a dead cert” that someone was going
to fall on snow and ice. She accepted that the risk involved in the activity
being carried out by Miss Kennedy on the occasion in question was therefore
“substantial”, in the absence of measures to control the risk. She also
accepted that it would be apparent to any employer, applying his mind to this
activity on the day in question, that there was a substantial risk of injury,
in the absence of controls. She nevertheless maintained that the advice to wear
safe and adequate footwear reduced the risk as far as was reasonably
practicable. She confirmed that Cordia had not given any consideration to the
provision of footwear or attachments.
The proceedings in the Outer House
17.
Miss Kennedy commenced proceedings in the Court
of Session, and the case proceeded to a proof restricted to the issue of
liability. The Lord Ordinary, Lord McEwan, found Cordia liable under the PPE
Regulations, the Management Regulations, and the common law: [2013] CSOH 130.
18.
The Lord Ordinary accepted Miss Kennedy’s
evidence, including her evidence that, if provided with attachments for her
boots, she would have worn them on the night in question. He commented that it
was of some importance that she and her colleague were under an urgent and
important duty to an elderly sick lady.
19.
He also accepted the evidence of Mr Greasly,
which he regarded as consistent: in particular, he did not consider that what
he said in cross-examination had departed from his evidence in chief or in
re-examination. His summary of Mr Greasly’s evidence included the following
passages:
“16. He then looked at the
risk assessments. Agreeing in general with the later evidence of Miss Rodger,
he said account had to be taken of controls to overcome hazards before any
rating could be arrived at. However, he said that in his opinion the measures
specified did not reduce the risk. Personal Protective Equipment (PPE) should
have been provided. He was critical of the omission of ‘inclement weather’ in
[the 2010 risk assessment]. Such weather did not cease to be a hazard and
simply to rate the risk as ‘tolerable’ did not take account of changes in the
risk when seriously adverse weather could and did occur that winter. This risk
could be eliminated altogether by not going to the house, but accepting the
need to go, the employer (his emphasis) should choose and supply the
correct footwear which was available at that time. That was not done. …
20. Being asked again about
research papers he said some were surveys and some were lists. He agreed that
icy and snowy surfaces varied and shoe attachments varied in their reaction to
these. He described in detail how Yaktrax performed and how he had used his own
set for 18 months in snow and ice. He said that they reduced the risk although
there was no one answer to the problem. Everyone still had to take care. Had he
done a risk assessment for Miss Kennedy’s job he would have assessed the risk
as likely and the severity as harmful. It was for the employer to find out what
PPE was best and in his opinion they should have provided Yaktrax or some other
type of fitting.
21. ... under reference to
the [British Standard], he said that the assessment of the risk should have
been ‘substantial’. Slipping and falling could give a variety of serious
injuries. What the employer had to do was reduce or eliminate the risk. That
would have been done if Yaktrax had been provided.”
20.
The Lord Ordinary repelled an objection which had
been made to Mr Greasly’s evidence on the ground that he did not have any
relevant special skill, experience or learning. In that regard, the Lord
Ordinary had earlier commented that Mr Greasly had detailed knowledge of the
correct approach to compiling risk assessments, and was justified in the
conclusion he drew from the published papers. In dealing with the objection, he
stated at para 43:
“His [Mr Greasly’s] many general
qualifications are listed in his two reports ... He has given evidence on many
occasions. He is a member of a group with particular interests in slipping at
work. He demonstrated a detailed knowledge of a number of international papers
on the subject of slipping and personal protective equipment relating to
footwear. The real issue is whether he was in a position to provide expertise
in areas of health and safety at work which would not be within the knowledge
of the court. In my view he clearly has the qualifications and gives such
evidence here. He will be treated therefore as an expert witness.”
21.
Having dealt with objections to the evidence, the
Lord Ordinary then stated his findings on the evidence. In the light of the
evidence of Mr Greasly, he made the following findings:
“47. The following emerges. He
had been to the locus. The conditions required some form of shoe ‘add on’.
Yaktrax was but one model available on the market at the time (it should be
noted that Miss Kennedy’s case does not depend solely on Yaktrax. She said she
would have worn an ‘add on’ if she had been given one).
48. Importantly I accept his criticism of the risk
assessments given in his evidence (see para 4.9 of [the first report, quoted in
para 10 above]) and he was clear in his evidence and reports that regulation 4
[of the PPE Regulations] was also breached (see eg paras 3.11 and 3.12 in [the
supplementary report, quoted in para 11 above]). He spoke to the availability
of a number of devices to fit to footwear at the relevant time. It is not
necessary to dwell at any length on the various studies or indeed to express my
own view of them. In my opinion they present a consistent picture with the
American one being particularly helpful.”
22.
The Lord Ordinary was critical of the reliability
of Miss Rodger’s evidence. He stated that her evidence lacked a clear
explanation of her conclusion that the risk of home carers slipping was
tolerable rather than substantial. He commented that her failure to consider
the provision of PPE had resulted in the breach of duty in all areas.
23.
Considering first the Management Regulations, on
the basis that a risk assessment was logically anterior to the taking of safety
precautions, the Lord Ordinary concluded that both assessments had been
unsatisfactory. Given Miss Rodger’s acceptance that a fall on ice was likely
and that any resultant injury could be harmful, the risk should have been
assessed as substantial rather than tolerable. The precautions in place, in the
form of advice to wear safe and adequate footwear, were inadequate. There was
no specific advice as to what might constitute such footwear, and no checking
or assessment of what was worn. In those circumstances, the risk assessment had
not been “suitable and sufficient”, as required by regulation 3(1).
24.
Considering next the PPE Regulations, the Lord
Ordinary concluded that in the light of Mr Greasly’s evidence about the
availability of relatively simple precautions to reduce the risk, and the absence
of any consideration of PPE by Cordia, it could not be said that the risk had
been adequately controlled by other means which were equally or more effective.
There was therefore a breach of regulation 4(1).
25.
Considering next the common law, the Lord Ordinary
stated:
“72. For the same reasons I
find [Cordia] also liable at common law. In the face of an obvious and
continuing risk they provided no safe footwear. There is no evidence they
checked what was being worn. There was no evidence of any system of working or
reporting in when staff had to go out in the extreme weather and walk on snow
and ice.”
The proceedings in the Inner House
26.
The Lord Ordinary’s decision was reversed by an
Extra Division of the Inner House (Lady Smith, Lord Brodie and Lord Clarke):
[2014] CSIH 76; 2015 SC 154. The Extra Division considered that the Lord
Ordinary had erred in five respects.
27.
First, in relation to Mr Greasly’s evidence, Lord
Brodie, giving the leading judgment, stated that he should not have been
allowed to give the evidence summarised by the Lord Ordinary at paras 16, 20,
21, 47 and 48 of his opinion, quoted at paras 19 and 21 above. The Lord
Ordinary “abdicated his role as decision-maker”. The dispute that had to be
resolved was “something … the Lord Ordinary was fully equipped to do without
any instruction or advice; it was squarely within his province as judicial
decision-maker. No additional expertise was required”. Health and safety was
not an area of expertise, since it was not a recognised body of science or
experience. The other members of the court agreed. Lord Clarke commented that
the Lord Ordinary’s approach was simply to accept that the evidence of Mr
Greasly determined the question for him. Paragraph 43 of the Lord Ordinary’s
opinion (quoted at para 20 above) demonstrated a shifting of his responsibility
for deciding the issues before him to Mr Greasly.
28.
Secondly, a failure to comply with the Management
Regulations could not be a direct cause of injury. The regulations did not
impose any duty to take precautions. Lady Smith considered that Cordia’s risk
assessment had in any event complied with the regulations, but did not explain
her reasons for reaching that conclusion. The other members of the Extra
Division did not express any opinion on the question.
29.
Thirdly, regulation 4(1) of the PPE Regulations
did not apply to the circumstances of the accident. The regulations were
concerned with risks to which workers were exposed which were created or
increased by the nature of their work. But the risk to which Miss Kennedy was
exposed was not of that kind. This point was explained most clearly by Lord
Clarke. Like Lord Brodie and Lady Smith, he construed the regulations as being
concerned with risks caused by the nature of the task performed by the
employee. He regarded that task, in the case of Miss Kennedy, as being confined
to the administration of care to her clients, and not as encompassing her
journeys to their homes. On that basis, he considered that the carrying out of
Miss Kennedy’s duties as a home carer did not create the risk of her slipping
somewhere en route to carrying out those duties because of ice or snow on that
route. The regulations were in his view designed to deal with risks in
circumstances where the employer had a degree of control over the employee, the
place of work and the performance of the task which had to be carried out. The
risk of Miss Kennedy’s slipping on ice and snow, on the other hand, 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.
30.
In any event, as it appeared to the Extra
Division, on the Lord Ordinary’s findings the risk of slipping was adequately
controlled. There was little evidence as to the likely efficacy of unspecified
attachments over the range of underfoot conditions that Miss Kennedy could have
been expected to encounter. It could not even be said on the evidence that
wearing attachments would have made any material difference on the pathway on
which Miss Kennedy fell.
31.
The Extra Division were also critical of the Lord
Ordinary’s statement that the direction of the law was to level safety upwards.
Lord Brodie remarked that the Lord Ordinary had cited no authority for his
observation, while Lord Clarke asked whether the Lord Ordinary’s words were
meant to reflect an aspect of public policy or some supposed legal principle,
and commented that they betrayed a failure to recognise that the law did not
impose on an employer a generalised duty to ensure the safety of his employees.
32.
Fourthly, in relation to the common law case, it
was said that the Lord Ordinary had failed to address the necessary basic
questions identified by Lord President Dunedin in Morton v William
Dixon Ltd 1909 SC 807, 809:
“Where the negligence of the
employer consists of what I may call a fault of omission, I think it is
absolutely necessary that the proof of that fault of omission should be one of
two kinds, either - to shew that the thing which he did not do was a thing
which was commonly done by other persons in like circumstances, or - to shew
that it was a thing which was so obviously wanted that it would be folly in
anyone to neglect to provide it.”
It could not be said that either requirement of Lord
Dunedin’s formula was satisfied. The Lord Ordinary had also failed to consider
whether it would be fair, just and reasonable to find there to be a duty of
care of the scope contended for, in accordance with Caparo Industries plc v
Dickman [1990] 2 AC 605, 617-618. Had he done so, he could not have failed
to reject the contention that Cordia were under a common law duty to determine
what their competent adult employees should wear on their feet when negotiating
the streets of Glasgow.
33.
Fifthly, it was said that the Lord Ordinary was
not entitled to find Cordia liable, in any event, because he had made no
finding that the wearing of attachments “would necessarily” have prevented Miss
Kennedy’s fall. He had, it was said, not taken a view on the passages in the
cross-examination of Mr Greasly in which he conceded that he could not say that
Yaktrax would have made any difference.
Mr Greasly’s evidence
34.
We shall begin by considering the issues arising
in relation to Mr Greasly’s evidence. The use of expert witnesses, who in
Scottish practice have traditionally been described as skilled witnesses, can
provide significant benefits to the court in determining legal disputes. There
is a degree of commonality of approach between jurisdictions which adopt similar
methods of fact-finding. Thus Scots law has drawn on the experience of other
jurisdictions both as to the admissibility of skilled evidence and in relation
to the duties of expert witnesses.
35.
There are also concerns about the use of skilled
witnesses, some of which may have lain behind the Extra Division’s approach in
this case. Walker and Walker, in The Law of Evidence in Scotland, 4th ed
(2015) (at para 16.3.11), record concerns about the excessive use of experts in
litigation in other jurisdictions, and refer to Lord Cullen’s proposal to
restrict the number of skilled witnesses in his Review of Outer House Business
in 1995. More recently, the Law Commission of England and Wales in its report, Expert
evidence in criminal proceedings in England and Wales, Law Com No 325
(2011), has recorded concerns (i) that an expert witness might have an
excessive influence on lay fact finders, (ii) whether in criminal cases the
defence will have the resources to test the underlying basis of an expert’s
evidence and (iii) that experts may not achieve the impartiality for which
their role calls. In our view, judges who frequently decide civil cases should
through their experience be less likely than juries to be unduly influenced by
skilled witnesses, but an advocate in a civil case may face difficulties in
testing the evidence of an expert unless assisted by expert advice. The need to
regulate such evidence remains.
36.
In this case, the Extra Division’s principal
concerns about Mr Greasly’s evidence were that he had expressed opinions on
what Cordia should have done that involved questions of law, which it was the
task of the court to decide and that, in any event, most of his evidence was
unnecessary: see para 27 above. Lord Clarke in his concurring opinion expressed
concerns, more generally, about the unnecessary proliferation of allegedly
expert reports in personal injury cases. The Extra Division articulated their
more general concern in their finding (in para 4 of Lady Smith’s opinion, paras
15 and 16 of Lord Brodie’s opinion and para 40 of Lord Clarke’s opinion) that
the health and safety practice of employers could not be the subject matter of
expert evidence, either because it was a legal question within the knowledge of
the court or because it 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. Counsel for Cordia conceded at the outset of this appeal that so
general an assertion was not correct and accepted that health and safety
practice could properly be the subject of expert evidence. We think that that
concession was correctly made.
37.
Before expressing our views on Mr Greasly’s
evidence in this appeal, we look at expert evidence more generally to provide
the context for our conclusions. The case law on the Scots law of evidence to
which counsel referred included both civil and criminal cases. We refer to both
in this judgment but are mindful that the Scots law of criminal evidence,
including expert evidence in criminal trials, lies within the competence of the
High Court of Justiciary and not this court. In this judgment therefore the
criminal cases only provide context for our consideration of the law of
evidence in civil cases.
The evidence of skilled witnesses
38.
In our view four matters fall to be addressed in
the use of expert evidence. They are (i) the admissibility of such evidence,
(ii) the responsibility of a party’s legal team to make sure that the expert
keeps to his or her role of giving the court useful information, (iii) the
court’s policing of the performance of the expert’s duties, and (iv) economy in
litigation. The first is the most directly relevant in this appeal. But the
others also arise out of either the parties’ submissions or the Extra
Division’s concerns and we address them briefly.
(i) Admissibility
39.
Skilled witnesses, unlike other witnesses, can
give evidence of their opinions to assist the court. This gives rise to
threshold questions of the admissibility of expert evidence. An example of
opinion evidence is whether Miss Kennedy would have been less likely to fall if
she had been wearing anti-slip attachments on her footwear.
40.
Experts can and often do give evidence of fact as
well as opinion evidence. A skilled witness, like any non-expert witness, can
give evidence of what he or she has observed if it is relevant to a fact in
issue. An example of such evidence in this case is Mr Greasly’s evidence of the
slope of the pavement on which Miss Kennedy lost her footing. There are no
special rules governing the admissibility of such factual evidence from a
skilled witness.
41.
Unlike other witnesses, a skilled witness may
also give evidence based on his or her knowledge and experience of a subject
matter, drawing on the work of others, such as the findings of published
research or the pooled knowledge of a team of people with whom he or she works.
Such evidence also gives rise to threshold questions of admissibility, and the
special rules that govern the admissibility of expert opinion evidence also
cover such expert evidence of fact. There are many examples of skilled
witnesses giving evidence of fact of that nature. Thus Dickson on Evidence,
Grierson’s ed (1887) at section 397 referred to Gibson v Pollock (1848)
11 D 343, a case in which the court admitted evidence of practice in dog
coursing to determine whether the owner or nominator of a dog was entitled to a
prize on its success. Similarly, when an engineer describes how a machine is
configured and works or how a motorway is built, he is giving skilled evidence
of factual matters, in which he or she draws on knowledge that is not derived
solely from personal observation or its equivalent. An expert in the social and
political conditions in a foreign country who gives evidence to an immigration
judge also gives skilled evidence of fact.
42.
It is common in Scottish criminal trials for the
misuse of drugs for the Crown to adduce the evidence of a policeman who has the
experience and knowledge to describe the quantities of drugs that people tend
to keep for personal use rather than for supply to others. Recently, in Myers,
Brangman and Cox v The Queen [2015] UKPC 40; [2015] 3 WLR 1145, the
Judicial Committee of the Privy Council approved of the use of police
officers, who had special training and considerable experience of the practices
of criminal gangs, to give evidence on the culture of gangs, their places of
association and the signs that gang members used to associate themselves with
particular gangs. In giving such factual evidence a skilled witness can draw on
the general body of knowledge and understanding in which he is skilled,
including the work and literature of others. But Lord Hughes, in delivering the
advice of the Board at para 58, warned that “care must be taken that simple,
and not necessarily balanced, anecdotal evidence is not permitted to assume the
robe of expertise.” To avoid this, the skilled witness must set out his
qualifications, by training and experience, to give expert evidence and also
say from where he has obtained information, if it is not based on his own
observations and experience.
43.
Counsel agreed that the South Australian case of R
v Bonython (1984) 38 SASR 45 gave relevant guidance on admissibility of
expert opinion evidence. We agree. In that case King CJ at pp 46-47 stated:
“Before admitting the opinion of a
witness into evidence as expert testimony, the judge must consider and decide
two questions. The first is whether the subject matter of the opinion falls
within the class of subjects upon which expert testimony is permissible. This
first question may be divided into two parts: (a) whether the subject matter of
the opinion is such that a person without instruction or experience in the area
of knowledge or human experience would be able to form a sound judgment on the
matter without the assistance of witnesses possessing special knowledge or
experience in the area, and (b) whether the subject matter of the opinion forms
part of a body of knowledge or experience which is sufficiently organized or
recognized to be accepted as a reliable body of knowledge or experience, a
special acquaintance with which by the witness would render his opinion of
assistance to the court. The second question is whether the witness has
acquired by study or experience sufficient knowledge of the subject to render
his opinion of value in resolving the issues before the court.”
44.
In Bonython the court was addressing
opinion evidence. As we have said, a skilled person can give expert factual
evidence either by itself or in combination with opinion evidence. There are in
our view four considerations which govern the admissibility of skilled
evidence:
(i)
whether the proposed skilled evidence will assist the court in its task;
(ii)
whether the witness has the necessary knowledge and experience;
(iii)
whether the witness is impartial in his or her presentation and assessment
of the evidence; and
(iv)
whether there is a reliable body of knowledge or experience to underpin
the expert’s evidence.
All four considerations apply to opinion evidence,
although, as we state below, when the first consideration is applied to opinion
evidence the threshold is the necessity of such evidence. The four
considerations also apply to skilled evidence of fact, where the skilled
witness draws on the knowledge and experience of others rather than or in
addition to personal observation or its equivalent. We examine each
consideration in turn.
45.
Assisting the court: It is for the court to
decide whether expert evidence is needed, when the admissibility of that
evidence is challenged. In R v Turner [1975] QB 834, a case which
concerned the admissibility of opinion evidence, which Professor Davidson cites
in his textbook on Evidence (2007) at para 11.04, Lawton LJ stated at p
841:
“If on the proven facts a judge or
jury can form their own conclusions without help, then the opinion of an expert
is unnecessary.”
In Wilson v Her Majesty’s Advocate 2009 JC 336,
which also concerned opinion evidence, the High Court of Justiciary, in an
opinion delivered by Lord Wheatley, stated the test thus (at para 58):
“[T]he subject-matter under
discussion must be necessary for the proper resolution of the dispute, and be
such that a judge or jury without instruction or advice in the particular area
of knowledge or experience would be unable to reach a sound conclusion without
the help of a witness who had such specialised knowledge or experience.”
46.
Most of the Scottish case law on, and academic
discussion of, expert evidence has focused on opinion evidence to the exclusion
of skilled evidence of fact. In our view, the test for the admissibility of the
latter form of evidence cannot be strict necessity as, otherwise, the court
could be deprived of the benefit of a skilled witness who collates and presents
to the court in an efficient manner the knowledge of others in his or her field
of expertise. There may be circumstances in which a court could determine a
fact in issue without an expert collation of relevant facts if the parties
called many factual witnesses at great expense and thus a strict necessity test
would not be met. In Daubert v Merrell Dow Pharmaceuticals Inc (1993)
509 US 579, the United States Supreme Court referred to rule 702 of the Federal
Rules of Evidence, which in our view is consistent with the approach of Scots
law in relation to skilled evidence of fact. The rule, which Justice Blackmun
quoted at p 588, states:
“If scientific, technical or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.”
47.
The advantage of the formula in this rule is that
it avoids an over-rigid interpretation of necessity, where a skilled witness is
put forward to present relevant factual evidence in an efficient manner rather
than to give an opinion explaining the factual evidence of others. If skilled
evidence of fact would be likely to assist the efficient determination of the
case, the judge should admit it.
48.
An expert must
explain the basis of his or her evidence when it is not personal observation or
sensation; mere assertion or “bare ipse dixit” carries little weight, as
the Lord President (Cooper) famously stated in Davie v Magistrates of
Edinburgh 1953 SC 34, 40. If anything, the suggestion that an
unsubstantiated ipse dixit carries little weight is understated; in our
view such evidence is worthless. Wessels JA stated the matter well in the
Supreme Court of South Africa (Appellate Division) in Coopers (South Africa)
(Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA
352, 371:
“[A]n expert’s opinion represents his reasoned conclusion
based on certain facts or data, which are either common cause, or established
by his own evidence or that of some other competent witness. Except possibly
where it is not controverted, an expert’s bald statement of his opinion is not
of any real assistance. Proper evaluation of the opinion can only be undertaken
if the process of reasoning which led to the conclusion, including the premises
from which the reasoning proceeds, are disclosed by the expert.”
As Lord Prosser pithily stated in Dingley v Chief
Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other
opinions, what carries weight is the reasoning, not the conclusion.”
49.
In Davie the Lord President at p 40
observed that expert witnesses cannot usurp the functions of the jury or judge
sitting as a jury. Recently, in Pora v The Queen [2015] UKPC 9; [2016] 1 Cr App R 3, para 24, the Judicial Committee of the Privy Council in an appeal
from New Zealand, stated:
“It is the duty of an expert
witness to provide material on which a court can form its own conclusions on
relevant issues. On occasions that may involve the witness expressing an
opinion about whether, for instance, an individual suffered from a particular
condition or vulnerability. The expert witness should be careful to recognise,
however, the need to avoid supplanting the court’s role as the ultimate
decision-maker on matters that are central to the outcome of the case.”
Thus, while on occasion in order to avoid elusive language
the skilled witness may have to express his or her views in a way that
addresses the ultimate issue before the court, expert assistance does not extend
to supplanting the court as the decision-maker. The fact-finding judge cannot
delegate the decision-making role to the expert.
50.
The witness’s knowledge and expertise: The
skilled witness must demonstrate to the court that he or she has relevant knowledge
and experience to give either factual evidence, which is not based exclusively
on personal observation or sensation, or opinion evidence. Where the skilled
witness establishes such knowledge and experience, he or she can draw on the
general body of knowledge and understanding of the relevant expertise: Myers,
Brangman and Cox (above) at para 63.
51.
Impartiality and other duties: If a party
proffers an expert report which on its face does not comply with the recognised
duties of a skilled witness to be independent and impartial, the court may
exclude the evidence as inadmissible: Toth v Jarman [2006] EWCA Civ 1028; [2006] 4 All ER 1276, paras 100-102. In Field v Leeds City Council [2000] 1 EGLR 54, the Court of Appeal upheld the decision of a district judge, who,
having ordered the Council to provide an independent surveyor’s report,
excluded at an interim hearing the evidence of a surveyor whom the Council
proposed to lead in evidence on the ground that his impartiality had not been
demonstrated. It is unlikely that the court could make such a prior ruling on
admissibility in those Scottish procedures in which there is as yet no judicial
case management. But the requirement of independence and impartiality is in our
view one of admissibility rather than merely the weight of the evidence.
52.
The Scottish courts have adopted the guidance of
Cresswell J on an expert’s duties in The Ikarian Reefer [1993] 2 Lloyd’s
Rep 68 in both civil and criminal matters: see Lord Caplan in Elf Caledonia
Ltd v London Bridge Engineering Ltd September 2, 1997 (unreported) at pp
225-227 and Wilson v Her Majesty’s Advocate (above) at paras 59 and 60. We
quote Cresswell J’s summary (at pp 81-82) omitting only case citations:
“The duties and responsibilities
of expert witnesses in civil cases include the following:
1. Expert evidence
presented to the court should be, and should be seen to be, the independent product
of the expert uninfluenced as to form or content by the exigencies of
litigation.
2. An expert witness
should provide independent assistance to the court by way of objective unbiased
opinion in relation to matters within his expertise. An expert witness in the
High Court should never assume the role of an advocate.
3. An expert witness should
state the facts or assumption on which his opinion is based. He should not omit
to consider material facts which could detract from his concluded opinion.
4. An expert witness
should make it clear when a particular question or issue falls outside his
expertise.
5. If an expert’s opinion
is not properly researched because he considers that insufficient data is
available, then this must be stated with an indication that the opinion is no
more than a provisional one. In cases where an expert witness who has prepared
a report could not assert that the report contained the truth, the whole truth
and nothing but the truth without some qualification, that qualification should
be stated in the report.
6. If, after exchange of reports, an expert
witness changes his view on a material matter having read the other side’s
expert’s report or for any other reason, such change of view should be
communicated (through legal representatives) to the other side without delay
and when appropriate to the court.
7. Where expert evidence
refers to photographs, plans, calculations, analyses, measurements, survey
reports or other similar documents, these must be provided to the opposite party
at the same time as the exchange of reports.”
53.
In Wilson v Her Majesty’s Advocate (at
paras 59 and 60) the High Court of Justiciary quoted the first four duties and
added the requirement that an expert witness “should in particular explain why
any material relevant to his conclusions is ignored or regarded as unimportant.”
In Elf Caledonia Ltd, Lord Caplan quoted Cresswell J’s guidance more
fully. In our view, Cresswell J’s guidance should be applied in the Scottish
courts in civil cases, making such allowance as is necessary to accommodate
different procedures. It is implicit that the seventh duty applies only in
relation to items to which the opposite party does not already have access.
54.
Reliable body of knowledge or experience: What
amounts to a reliable body of knowledge or experience depends on the subject
matter of the proposed skilled evidence. In Davie v Magistrates of Edinburgh
the question for the court was whether blasting operations in the construction
of a sewer had damaged the pursuer’s building and the relevant expertise
included civil engineering and mining engineering. In Myers, Brangman and
Cox, as we have said, the subject matter was the activities of criminal
gangs; a policeman’s evidence, which was the product of training courses and
long term personal experience as an officer serving with a body of officers who
had built up a body of learning, was admitted as factual evidence of the
practices of such gangs.
55.
In many cases where the subject matter of the
proposed expert evidence is within a recognised scientific discipline, it will
be easy for the court to be satisfied about the reliability of the relevant
body of knowledge. There is more difficulty where the science or body of knowledge
is not widely recognised. Walker and Walker at para 16.3.5 refer to an obiter
dictum in Lord Eassie’s opinion in Mearns v Smedvig Ltd 1999 SC 243 in
support of their proposition that:
“A party seeking to lead a witness with purported knowledge
or experience outwith generally recognised fields would need to set up by
investigation and evidence not only the qualifications and expertise of the
individual skilled witness, but the methodology and validity of that field of
knowledge or science.”
56.
We agree with that proposition, which is
supported in Scotland and in other jurisdictions by the court’s refusal to
accept the evidence of an expert whose methodology is not based on any established
body of knowledge. Thus in Young v Her Majesty’s Advocate 2014 SLT 21,
the High Court refused to admit evidence of “case linkage analysis” because it
was the subject of only relatively recent academic research and a methodology
which was not yet sufficiently developed that it could be treated as reliable. See
also, for example, R v Gilfoyle [2001] 2 Cr App R 5, in which the
English Court of Appeal (Criminal Division) refused to admit expert evidence on
“psychological autopsy” for several reasons, including that the expert had not
embarked on the exercise in question before and also that there were no
criteria by reference to which the court could test the quality of his opinions
and no substantial body of academic writing approving his methodology. The
court also observed that the psychologist’s views were based on one-sided
information and doubted that the assessment of levels of happiness or
unhappiness was a task for an expert rather than jurors.
(ii) Making sure that the
expert performs his or her role
57.
It falls in the first instance to counsel and
solicitors who propose to adduce the evidence of a skilled witness to assess
whether the proposed witness has the necessary expertise and whether his or her
evidence is otherwise admissible. It is also their role to make sure that the
proposed witness is aware of the duties imposed on an expert witness. The legal
team also should disclose to the expert all of the relevant factual material
which they intend should contribute to the expert’s evidence in addition to his
or her own pre-existing knowledge. That should include not only material which
supports their client’s case but also material, of which they are aware, that
points in the other direction, viz the court’s concerns about one-sided
information in R v Gilfoyle. The skilled witness should take into
account and disclose in the written report the relevant factual evidence so
provided.
(iii) Policing the
performance of an expert’s duties
58.
It is not the normal practice of the Scottish
courts to hold preliminary hearings or proofs on the admissibility of the evidence
of skilled witnesses. Considerations of cost and practicability may often make
such a course unattractive. Where the court has significant powers of case
management, as in certain actions based on clinical negligence or relating to
catastrophic injuries (Rules of the Court of Session 1994 as amended (“RCS”) Chapter
42A), commercial actions (RCS Chapter 47), and intellectual property actions
(RCS Chapter 55), a judge can address concerns about the evidence in the report
by a skilled witness at a case management hearing and discuss with counsel how
they are to be resolved. Wider opportunities for such case management in
personal injury actions are likely to result from the implementation of Lord
Gill’s Civil Courts Review.
59.
In many cases it may not be possible to iron out
all difficulties before the proof. A party may object to part or all of a
skilled witness’s evidence at the start and during the course of a proof, as
occurred in this case. In the absence of objection, the judge should, when
assessing whether and to what extent to give weight to the evidence, test the
evidence to ascertain that it complies with the four considerations which we
have set out in para 38 above and is otherwise sound. In McTear v Imperial
Tobacco Ltd 2005 2 SC 1, para 5.17 Lord Nimmo Smith usefully described the
judge’s role in these terms:
“[I]t is necessary to consider
with care, in respect of each of the expert witnesses, to what extent he was
aware of and observed his function. I must decide what did or did not lie
within his field of expertise, and not have regard to any expression of opinion
on a matter which lay outwith that field. Where published literature was put to
a witness, I can only have regard to such of it as lay within his field of
expertise, and then only to such passages as were expressly referred to. Above
all, the purpose of leading the evidence of any of the expert witnesses should have
been to impart to me special knowledge of subject-matter, including published
material, lying within the witness’s field of expertise, so as to enable me to
form my own judgment about that subject-matter and the conclusions to be drawn
from it.”
Lord Brodie referred to this passage in his opinion at para
11. It is not necessary in this appeal to determine how far a court should have
regard to published material put to or cited by a skilled witness which is not
within his or her core expertise. Much may depend on the nature of the expert’s
area of practice, which may or may not involve some working knowledge of
related disciplines, and on the centrality of the published material to the
matter which the court has to decide: see, for example, Main v McAndrew
Wormald Ltd 1988 SLT 141 and, on the analogous question of a medical
practitioner consulting another specialist, M v Kennedy 1993 SC 115.
(iv) Economy in litigation
60.
In recent years there have been many statements
of concern in many jurisdictions about the disproportionate cost of civil
litigation. Scotland is no exception. Those concerns include the use of expert
witnesses. In the responses to consultation in the Scottish Civil Courts Review
some respondents, including the Scottish Legal Aid Board, expressed their
concern about the increased reliance on experts in litigation and the
consequent cost (Report of the Scottish Civil Courts Review (2009) vol 1, chapter
9, para 64). The latter concern was also discussed in the Taylor Review of
Expenses and Funding of Civil Litigation in Scotland (2013), chapter 3, paras
59-95. Cordia in this case challenge what they describe in their written case
as “the largely uncontrolled proliferation of experts”.
61.
Case management offers a means by which the court
can encourage parties to avoid leading evidence on matters which are not
contentious, for example by agreeing a statement of fact which explains
background matters, which are not the subject of written pleadings, to the
court. There may be matters which can readily be agreed, thereby allowing
parties’ experts to concentrate on contentious matters. Solicitors with
expertise in personal injury actions may use such statements as the basis for
agreed evidence in other actions and thereby save expense. Where that is not
possible, a court which has case management powers may require experts to
exchange opinions, confer and prepare a report which identifies matters of
agreement and reasons for any continued disagreement. It can also ascertain the
scope for joint instruction of a single expert, and (where it possesses the
necessary powers) can exclude expert reports and evidence. Courts also possess
powers in relation to expenses which can be used to discourage the excessive
use of expert evidence. Nothing that we say in this judgment questions the
legitimacy of the underlying concern about reducing the expense of litigation.
Expert evidence in this case
62.
With those general comments we turn to Mr
Greasly’s evidence in this case. We have summarised his qualifications and his
evidence in paras 9 to 14 above.
63.
There were matters in Mr Greasly’s reports to
which Cordia did not take exception. Lord Brodie acknowledged that there were
matters of fact which were admissible, such as his description of the locus,
including his measurements of the gradients, and his evidence of availability
on the market of anti-slip attachments to footwear. But there were other
factual matters which were admissible because they were relevant and might
assist a judge, and against which Cordia did not persist in their challenge in
this court. They included:
(i)
information on the prevention or reduction of risks of tripping and
slipping from publications by the Construction Industry Research and
Information Association, by the HSE and from the HSE website;
(ii)
research literature on the effectiveness of different types of footwear
and devices to resist slipping and on the circumstances in which people suffer
falls;
(iii)
HSE guidance on the PPE Regulations which provided evidence of good
health and safety practice in relation to dangers posed by the weather when
people have to work out of doors; and
(iv)
the practices of named public bodies in providing their employees
working out of doors with anti-slip devices.
Cordia maintained their challenge to his evidence of the
effect of Yaktrax, based on his own use of them, and his oral explanation of
how anti-slip attachments reduced the risk of slipping, which was based on his
knowledge of engineering. But these were also factual matters, which he had the
experience and qualifications to describe. In our view, the Lord Ordinary did
not err in admitting all of this factual evidence.
64.
Similarly, it was relevant to the court’s task to
hear evidence on health and safety practice in complying with the Management
Regulations and the PPE Regulations. The expansion of the statutory duties
imposed on employers in the field of health and safety has given rise to a body
of knowledge and experience in this field, which, as we explain later in this
judgment, creates the context in which the court has to assess an employer’s
performance of its common law duty of care. The Lord Ordinary was entitled to
accept Mr Greasly’s experience in carrying out and advising his clients on risk
assessments as a proper basis for his giving of such evidence.
65.
The Extra Division had two other major criticisms
of Mr Greasly’s evidence. One was that he was inadmissibly giving his opinion
on matters of law. The other, which was based on the well-known dictum of
Oliver J in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979]
Ch 384, 402, a case of solicitor’s negligence, was that an expert’s opinion of
what he would have done in the circumstances did not assist the court, and was
therefore inadmissible.
66.
The former objection may properly be made to Mr
Greasly’s statements that it was for Cordia to consider the range of footwear
and attachments that were available (main report para 3.74) and that it was for
Cordia to take steps to reduce the risk as far as was reasonably practicable
(main report para 4.11). They appear at first sight to be statements of opinion
on Cordia’s legal duty, which would not be admissible before lay fact finders
and should be avoided. An experienced judge however could readily treat the
statements as the opinions of a skilled witness as to health and safety
practice, based on the Management Regulations and the PPE Regulations and on
HSE guidance, and make up his own mind on the legal question. The Lord Ordinary
(at para 48 of his opinion) interpreted passages in Mr Greasly’s supplementary
report as expressing an opinion that Cordia had breached their statutory duty. If
that were a correct interpretation of what Mr Greasly had said, those passages
of his evidence were not admissible. But, as we shall explain, that does not
undermine the Lord Ordinary’s decision, because he applied his own mind to the
central legal issues.
67.
We are not persuaded by the latter objection.
There may be cases where the opinion of a professional as to what he or she
would have done in a given circumstance is of only limited weight in the
court’s assessment of a claim for professional negligence, as in Hett,
Stubbs. But we see no reason why the Lord Ordinary should not have found
helpful the reasoned view of a person experienced in carrying out risk
assessments on the rating of risks within a risk assessment. Cordia assessed
the risk of injury such as sprains or fractures when travelling to and from
work locations to be “tolerable”, applying a British Standard with which a
judge might not be familiar but which was relevant to a consideration of proper
practice. Mr Greasly opined that in wintry conditions the risk should have been
assessed as “substantial”. His evidence provided a basis for the Lord Ordinary
to weigh up the opposing views when deciding whether Cordia had suitably and
sufficiently evaluated the risks and identified the measures needed to protect
health and safety. We have difficulty in seeing how Miss Kennedy’s counsel
could have presented her case on these matters by legal submissions alone.
68.
Mr Greasly not only collated the factual material
to which we have referred but also gave opinion evidence on how the relevant
risk assessment should have been carried out. The Lord Ordinary held (in para
43 of his opinion) that Mr Greasly had the necessary experience to give such
evidence about health and safety at work. In our view the circumstances of this
case are therefore materially different from Hawkes v Southwark
London Borough Council (unreported) 20 February 1998 in which Aldous LJ was
critical of the plaintiff for calling an expert engineering witness
unnecessarily.
69.
When Cordia responded to an invitation from this
court to submit a note identifying the specific passages in Mr Greasly’s
reports to which they objected, they identified passages which raised the
issues which we have discussed above. They also objected to several statements
of the obvious, such as that anti-slip attachments with spiked steel
projections must help increase traction in snow and ice and so reduce the risk
of slipping. But these statements were a small part of Mr Greasly’s narrative
and are not objectionable. It would be different if the sum and substance of an
expert’s report were blindingly obvious. Such a report would be inadmissible
because it would not assist the court.
70.
In summary, the Extra Division erred in treating
much of the factual material in Mr Greasly’s report as inadmissible on the
basis that it was not skilled evidence that assisted the court. The Extra
Division also erred in excluding his evidence on how he would have carried out
the risk assessment. As we have said, his expressions of opinion as to what
Cordia should have done were capable of being interpreted as legal opinions
that Cordia had breached statutory regulations and thus objectionable. But the
Lord Ordinary applied his own mind to the legal questions which he had to
decide: see our discussion of this part of his opinion in paras 21-25 above.
71.
As in this case, 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 into how the particular risk might have been reduced or avoided. Whether
or not the witness has sufficient experience and knowledge to give skilled
evidence is a matter which can be explored either through case management or in
cross-examination.
72.
In this case Mr Greasly included in his evidence
material, which his instructing solicitors had provided to him, relating to the
practices of other employers obtained from freedom of information requests. The
solicitors themselves did not give evidence. In such circumstances, it is, as a
matter of fairness, incumbent on the solicitors to disclose to the skilled
witness and to the other parties in the litigation the relevant material which
they have assembled, whether or not it supports their case. It is not clear in
this case whether there was any undisclosed material.
73.
We observe that in this case there was no
suggestion that Miss Kennedy’s advisers had adopted an uneconomic approach to
the litigation. Her proof consisted of two witnesses: herself and Mr Greasly.
The Framework Directive
74.
We turn next to the issues of substantive law
which are raised in the appeal. Before considering the regulations which were
relied upon, it is helpful to consider their background in EU law, partly
because the regulations have to be construed as far as possible so as to give
effect to EU law, and also in view of the Extra Division’s criticism of the
Lord Ordinary’s remarks about the direction of the law being to level safety
upwards.
75.
Article 153 of the Treaty on the Functioning of
the European Union requires the EU to support and complement the activities of
the member states in a number of fields, including “improvement in particular
of the working environment to protect workers’ health and safety”, and permits
the European Parliament and Council to adopt Directives for that purpose. It is
clear from the case law of the Court of Justice that article 153, and in
particular the concepts of “working environment”, “safety” and “health”, are
not to be interpreted restrictively: see, for example, United Kingdom v
Council of the European Union (Case C-84/94) [1996] ECR I-5755, para 15.
76.
It was under the predecessor of article 153,
namely article 118a of the EEC Treaty, that the Council adopted Directive
89/391/EEC of 12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work (“the Framework
Directive”). In the preamble, the recitals refer repeatedly to improving safety
and health in the working environment, and to harmonising the relevant national
laws, so that competition is not at the expense of safety and health. As the
Lord Ordinary correctly stated, safety is to be levelled upwards.
77.
As we shall explain, the Framework Directive provides
a basis for “daughter” Directives addressing particular aspects of health and
safety at work. It is necessary to refer to only a few of the articles of the
Framework Directive itself. Article 1(1) states that the object of the Directive
is to introduce measures to encourage improvements in the safety and health of
workers at work. To that end, according to article 1(2), it contains general
principles and general guidelines for the implementation of those principles. Article
1(3) provides that the Directive is without prejudice to existing or future
national and Community provisions which are more favourable to protection of
the safety and health of workers at work. Under article 4(1), member states are
required to take the necessary steps to ensure that employers and others are
subject to the legal provisions necessary for the implementation of the
Directive.
78.
Article 5(1) provides that the employer shall
have a duty to ensure the safety and health of workers in every aspect related
to the work. Article 5(4) permits member states to provide for the exclusion or
limitation of employers’ responsibility “where occurrences are due to unusual
and unforeseeable circumstances, beyond the employers’ control, or to
exceptional events, the consequences of which could not have been avoided
despite the exercise of all due care.”
79.
Article 6(1) provides that, within the context of
his responsibilities, the employer shall take the measures necessary for the
safety and health protection of workers, and shall “aim to improve existing
situations.”
80.
Article 6(2) sets out the general principles of
prevention which are to form the basis of the measures taken under paragraph 1.
They include:
“(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
...
(h) giving collective protective measures priority
over individual protective measures; and
(i) giving appropriate
instructions to the workers.”
These principles are fundamental to the panoply of
“daughter” Directives, and to the legislation transposing them into domestic
law. Where possible, risk is to be avoided rather than reduced; means of
collective protection are to be preferred to means of individual protection
(such as PPE); and merely giving instructions to the workers is to be the last
resort.
81.
Another fundamental principle is the assessment
of risk. That principle is set out in article 6(3)(a), and is especially
relevant to the present case. It requires the employer to “evaluate the risks
to the safety and health of workers”, and provides that “Subsequent to this
evaluation and as necessary, the preventive measures and the working and
production methods implemented by the employer must:- assure an improvement in
the level of protection afforded to workers with regard to safety and health”.
82.
Finally, in relation to the Framework Directive,
article 16(1) requires the Council to adopt individual Directives in the areas
listed in the annex, including “personal protective equipment”. In terms of
article 16(3), the provisions of the Framework Directive are to apply in full
to all the areas covered by the individual Directives, without prejudice to
more stringent or specific provisions contained in those Directives.
The PPE Directive
83.
One of the individual Directives, within the
meaning of article 16 of the Framework Directive, is Directive 89/656/EEC of 30
November 1989 on the minimum health and safety requirements for the use by
workers of personal protective equipment at the workplace (“the PPE
Directive”). It again has its legal basis in article 118a of the EEC Treaty.
84.
Article 1 explains that the Directive lays down
minimum requirements for PPE used by workers at work. PPE is defined by article
2(1) as meaning “all equipment designed to be worn or held by the worker to
protect him against one or more hazards likely to endanger his safety and
health at work, and any addition or accessory designed to meet this objective.”
Article 3 lays down a general rule that “Personal protective equipment shall be
used when the risks cannot be avoided or sufficiently limited by technical
means of collective protection or by measures, methods or procedures of work
organization.” Article 6(1) requires member states to ensure that rules are
established for the use of PPE, and refers to the annexes to the Directive as a
guide. Annex I includes the risk of “slipping, falling over” in a specimen risk
survey table for the use of PPE. Annex II sets out a non-exhaustive guide list
of items of PPE, including “Removable spikes for ice, snow or slippery flooring.”
Annex III sets out a non-exhaustive guide list of activities and sectors of
activity which may require the provision of PPE, including, under the category
of weatherproof clothing, “Work in the open air in rain and cold weather.”
The Management Regulations
85.
The Management Regulations are intended primarily
to implement the Framework Directive. Regulation 3(1) provides:
“Every employer shall make a
suitable and sufficient assessment of -
(a) the risks to the health
and safety of his employees to which they are exposed whilst they are at work;
…
for the purpose of identifying the
measures he needs to take to comply with the requirements and prohibitions
imposed upon him by or under the relevant statutory provisions …”
86.
The statutory provisions referred to in
regulation 3(1) are those contained in Part I of the Health and Safety at Work
etc Act 1974 (“the 1974 Act”) and regulations made under section 15 of that
Act: see section 53(1). Both the Management Regulations and the PPE Regulations
were made under section 15 of the 1974 Act.
87.
Regulation 4 of the Management Regulations
provides that where an employer implements any preventive and protective
measures, he shall do so on the basis of the principles specified in Schedule 1
to the Regulations. Those principles are derived from article 6(2) of the
Framework Directive and are in almost identical terms.
88.
In relation to civil liability, section 47(2) of
the 1974 Act provided at the relevant time, prior to its amendment by section
69 of the Enterprise and Regulatory Reform Act 2013, that breach of a duty
imposed by health and safety regulations (ie regulations made under section 15)
“shall, so far as it causes damage, be actionable except in so far as the
regulations provide otherwise.” Regulation 22 of the Management Regulations, as
it stood at the relevant time, provided that breach of a duty imposed on an
employer by the Regulations did not confer a right of action in any civil
proceedings in so far as the duty applied for the protection of a third party
(ie someone other than an employee). The Regulations therefore contained no bar
to liability towards an employee, subject to the requirement imposed by section
47(2) that the breach of duty “causes damage”.
89.
The importance of a suitable and sufficient risk
assessment was explained by the Court of Appeal in the case of Allison v
London Underground Ltd [2008] EWCA Civ 71; [2008] ICR 719. Smith LJ
observed at para 58 that insufficient judicial attention had been given to risk
assessments in the years since the duty to conduct them was first introduced.
She suggested that that was because judges recognised that a failure to carry
out a sufficient and suitable risk assessment was never the direct cause of an
injury: the inadequacy of a risk assessment could only ever be an indirect
cause. Judicial decisions had tended to focus on the breach of duty which led
directly to the injury. But to focus on the adequacy of the precautions
actually taken without first considering the adequacy of the risk assessment
was, she suggested, putting the cart before the horse. Risk assessments were
meant to be an exercise by which the employer examined and evaluated all the
risks entailed in his operations and took steps to remove or minimise those
risks. They should, she said, be a blueprint for action. She added at para 59,
cited by the Lord Ordinary in the present case, that the most logical way to
approach a question as to the adequacy of the precautions taken by an employer
was through a consideration of the suitability and sufficiency of the risk
assessment. We respectfully agree.
The application of the Management Regulations in the
present case
90.
As we have explained, the Extra Division did not
consider closely whether Cordia had complied with their duties under the
Management Regulations, or reach any conclusion on that question. This court
should however do so. It is clear from the evidence that Miss Kennedy was
exposed to a risk to her health and safety whilst she was at work, namely the
risk of slipping and falling on snow and ice while travelling between clients’
houses. That risk was obvious as a matter of common sense, and was in any event
within Cordia’s knowledge, given their previous experience of the incidence of
home carers suffering such accidents each year. The risk was identified, in
general terms, in the 2005 risk assessment. Although it was not explicitly
addressed in the 2010 risk assessment, risks of that general nature were again
identified.
91.
Considering the risk of slipping in accordance
with the general principles set out in Schedule 1 to the Regulations, and
adopted from article 6(2) of the Framework Directive, it could not be avoided:
for wholly understandable reasons, it was Cordia’s position that the
individuals who were dependent on the services of the home carers had to be visited
if at all possible. The risk therefore had to be evaluated and addressed in
accordance with those principles, which set out a hierarchical order in which the
measures necessary to protect health and safety should be considered.
92.
Was there, then, a sufficient evaluation of the
risk, and of the necessary measures? In relation to these matters, the Lord
Ordinary’s conclusion was based on findings which he was entitled to make on
the evidence, and on a proper understanding of the law. As he noted, the risk
of a home carer slipping on snow or ice while at work, on the way to a client’s
home, was accepted to be likely - “a dead cert”, as Miss Rodger put it. It was
also accepted that the injuries which might be sustained included fractures and
head injuries, and were therefore potentially serious. No consideration,
however, was given to the possibility of individual protective measures, before
relying on the measure of last resort, namely giving appropriate instructions
to employees. Even then, the instructions given, in the form of advice to wear
appropriate footwear, provided no specification of what might be appropriate.
In these circumstances, the Lord Ordinary was entitled to conclude that there
had been a breach of regulation 3(1).
The PPE Regulations
93.
The PPE Regulations are intended to implement the
PPE Directive. Regulation 2(1) defines “personal protective equipment” (“PPE”)
as meaning all equipment (including clothing affording protection against the
weather) which is intended to be worn or held by a person at work and which
protects him against one or more risks to his health or safety, and any
addition or accessory designed to meet that objective. We should record that no
reliance has been placed in these proceedings on regulation 3(2), which excludes
the application of the regulations in respect of PPE which is “(d) personal
protective equipment used for protection while travelling on a road within the
meaning (in England and Wales) of section 192(1) of the Road Traffic Act 1988,
and (in Scotland) of section 151 of the Roads (Scotland) Act 1984”.
94.
Regulation 4(1) is particularly relevant to the
present case. It provides:
“Every employer shall ensure that
suitable personal protective equipment is provided to his employees who may be
exposed to a risk to their health or safety while at work except where and to
the extent that such risk has been adequately controlled by other means which
are equally or more effective.”
95.
In terms of regulation 4(3), as amended, PPE is
not suitable unless, amongst other things, “(a) it is appropriate for the risk
or risks involved, the conditions at the place where exposure to the risk may
occur, and the period for which it is worn”, and “(d) so far as is practicable,
it is effective to prevent or adequately control the risk or risks involved
without increasing overall risk”.
96.
Regulation 6 imposes a further duty to carry out
a risk assessment. In terms of regulation 6(1), before choosing any PPE which
by virtue of regulation 4 he is required to ensure is provided, an employer
must ensure that an assessment is made to determine whether the PPE he intends
will be provided is suitable. In terms of article 6(2), the assessment must
include, among other things:
“(a) an assessment of any risk
or risks to health or safety which have not been avoided by other means;
(b) the definition of the
characteristics which personal protective equipment must have in order to be
effective against the risks referred to in sub-paragraph (a) of this paragraph,
taking into account any risks which the equipment itself may create;
(c) comparison of the
characteristics of the personal protective equipment available with the
characteristics referred to in sub-paragraph (b) of this paragraph.”
97.
Finally, in relation to the provisions of the PPE
Regulations, the Extra Division considered the Lord Ordinary’s approach to be
inconsistent with regulations 8 and 10. Regulation 8 provides:
“Where an employer or
self-employed person is required, by virtue of regulation 4, to ensure personal
protective equipment is provided, he shall also ensure that appropriate
accommodation is provided for that personal protective equipment when it is not
being used.”
Regulation
10 provides, so far as material:
“(1) Every employer shall take
all reasonable steps to ensure that any personal protective equipment provided
to his employees by virtue of regulation 4(1) is properly used. ...
(4) Every employee and
self-employed person who has been provided with personal protective equipment
by virtue of regulation 4 shall take all reasonable steps to ensure that it is
returned to the accommodation provided for it after use.”
The application of the PPE Regulations in the present case
98.
As we have explained, the Lord Ordinary was
entitled to find that there had been a failure to carry out a suitable and
sufficient risk assessment. Such an assessment would have involved specific
consideration of the possibility of individual protective measures to reduce
the risk of home carers slipping and falling on snow and ice. Had that
possibility been considered, the Lord Ordinary found that a number of devices
were available which would have been suitable to reduce the risk. Since none was
provided, it followed that there was a breach of regulation 4(1) of the PPE
Regulations.
99.
The Extra Division put forward a number of
arguments in support of their conclusion that the Regulations had no
application in the circumstances of the present case. First, they pointed out
that regulation 4(1) is concerned with risks to which employees are exposed
“while at work”. They inferred that the risks in question must be created or
increased by the nature of the work. Lord Brodie considered that this construction
was consistent with article 1(1) of the Framework Directive, which described
the object of the Directive as being to introduce measures to encourage
improvements in the safety and health of “workers at work”. Similarly, article
1(1) of the PPE Directive stated that the Directive laid down minimum
requirements for PPE used by “workers at work”. Reliance was also placed on the
reference in article 2(1) to “hazards likely to endanger his safety and health
at work”, and to the general rule set out in article 3, quoted in para 84
above. Lord Brodie said that he took from this language that the concern of the
PPE Regulations was the risks to which the worker was exposed at work which
arose specifically from that work, as opposed to risks to which a worker might
be exposed in the same way as members of the public. It was in the former
circumstances that the employer might be supposed to have the requisite
knowledge and means to control the risk through the hierarchy of measures set
out in article 6(2) of the Framework Directive and Schedule 1 to the Management
Regulations.
100.
We do not find these arguments persuasive. An
employee is “at work”, for the purposes of both the Management Regulations and
the PPE Regulations, throughout the time when she is in the course of her
employment: section 52(1)(b) of the 1974 Act. The point is illustrated by the
facts of Robb v Salamis (M & I) Ltd [2006] UKHL 56; 2007 SC (HL) 71;
[2007] ICR 175. Miss Kennedy in particular, as a home carer, was “at work” when
she was travelling between the home of one client and that of another in order
to provide them with care. Indeed, travelling from one client’s home to
another’s was an integral part of her work. The meaning of the words “while at
work” in regulation 4(1) of the PPE Regulations (and of the equivalent words,
“whilst they are at work”, in regulation 3(1) of the Management Regulations) is
plain. They mean that the employee must be exposed to the risk during the time
when she is at work, that is to say, during the time when she is in the course
of her employment. They refer to the time when she is exposed to the risk, not
to the cause of the risk.
101.
That conclusion as to the construction of the Regulations
would not be affected even if, as the Extra Division considered, the Directives
were to be construed as having a narrower application. As article 1(3) of the
Framework Directive makes clear, the Directives do not exclude the adoption of
national measures which provide greater protection. The PPE Directive in
particular “lays down minimum requirements”: article 1(1). It has been noted in
earlier cases that the domestic Regulations are in some respects of wider scope
than the Directives (see, for example, Hide v The Steeplechase Co
(Cheltenham) Ltd [2013] EWCA Civ 545; [2014] ICR 326).
102.
But the Directives are not in any case confined to
risks arising specifically from the nature of the activities which the worker
carries out, as opposed to risks arising from the natural environment to which
the worker is exposed while at work. Article 5(1) of the Framework Directive
requires the employer to ensure the safety and health of workers “in every
aspect related to the work.” Article 5(4) makes it clear that the employer’s
obligations are not confined to risks arising from matters within his control:
member states are permitted to exclude or limit employers’ responsibility only
“where occurrences are due to unusual and unforeseeable circumstances, beyond
the employers’ control, or to exceptional events, the consequences of which
could not have been avoided despite the exercise of all due care.” The
obligation imposed by article 6(3)(a) applies to all risks to the safety and
health of workers: Commission of the European Communities v Italian Republic
(Case C-49/00) [2001] ECR I-8575, para 12. As we have explained, Annex II
to the PPE Directive includes “Removable spikes for ice, snow” in its
non-exhaustive guide list of items of PPE, while Annex III includes “Work in
the open air in rain and cold weather” in its non-exhaustive guide list of
activities and sectors of activity which may require the provision of PPE.
103.
As we have explained, the Extra Division also
considered the Lord Ordinary’s approach to be inconsistent with regulations 8
and 10 of the PPE Regulations. We do not agree. Regulation 8 requires the
employer to ensure that appropriate accommodation is provided for the PPE when
it is not being used. Lord Brodie reasoned that, since the employer could only
make accommodation available in places or situations where he could exercise
control, regulation 8 suggested that the risks with which the Regulations were
concerned were similarly confined. With respect, that does not follow.
Protective clothing, for example, often has to be provided precisely because
the employer cannot control the places or situations in which the clothing is
to be worn (as, for example, in Henser-Leather v Securicor Cash Services Ltd
[2002] EWCA Civ 816 and Taylor v Chief Constable of Hampshire Police [2013] EWCA Civ 496; [2013] ICR 1150). It also has to be borne in mind that there may
be situations in which the most appropriate place for PPE to be accommodated
when it is not in use will be in the employee’s home or vehicle. In such a
situation, the employer might fulfil its duty under regulation 8 by arranging
with the employee for the PPE to be accommodated there.
104.
So far as regulation 10 is concerned, it requires
the employer to take all reasonable steps to ensure that any PPE provided to
his employees is properly used, and is returned to the accommodation provided
for it after use. The Extra Division appear to have considered that it would be
difficult to apply or enforce those obligations in situations where the risk
was not created by the nature of the task carried out by the employee. We do not
share that concern. Evidently, the implications of a duty to take all
reasonable steps depend on the circumstances. Where, for example, the PPE is
intended to be used in situations where the employee cannot reasonably be
subject to immediate supervision, the duty to take all reasonable steps will
not require such supervision, but may be satisfied by less onerous measures,
such as adequate training and instruction.
105.
There remains the Extra Division’s conclusion that
there was in any event no obligation to provide PPE in the present case, since on
the Lord Ordinary’s findings the risk of slipping was adequately controlled by
other means which were equally or more effective, as required by regulation
4(1) of the PPE Regulations. In that regard, the Extra Division considered that
there was little evidence as to the likely efficacy of attachments over the
range of underfoot conditions that Miss Kennedy could have been expected to
encounter.
106.
We are unable to reconcile the Extra Division’s
conclusion with the Lord Ordinary’s findings. In relation to the exception to
regulation 4(1), he noted that the onus was on the employer to establish that
the exception was made out. He found, in the first place, that the evidence
about the precautions in place, in the form of training, was vague and
unsatisfactory. As he commented, that in itself showed that the precautions
taken could not be regarded as “adequate control by other means”. Furthermore,
he accepted Mr Greasly’s evidence about the availability of PPE which would
reduce the risk. His reasoning reflects the evidence and a proper understanding
of the law. The evidence established that anti-slipping attachments were
available at a modest cost; that they were used by other employers to address
the risk of their employees slipping and falling on footpaths covered in snow
and ice; that there was a body of research demonstrating that their use reduced
the risk of slipping in wintry conditions; and that Mr Greasly’s own experience
was that the attachments which he had used had made a difference. His evidence,
which the Lord Ordinary accepted, was that, had Miss Kennedy worn such devices,
on a balance of probabilities the risk of her falling on ice and snow would
have been reduced and might have been eliminated. As against that, Cordia had
given no consideration to the matter. In those circumstances, we can see no
basis in the Lord Ordinary’s findings, or in the evidence, for finding that the
exception in regulation 4(1) had been made out.
Common law liability
107.
It may be helpful at the outset to address a
general point arising from the opinions of the Extra Division. They contain
numerous comments to the effect that it is unreasonable to suggest that Miss
Kennedy’s employer should have provided her with special footwear designed to
reduce the risk of her slipping and falling, since she was in the same position
as any other member of the public travelling on foot in wintry conditions. It
was in that context that the Extra Division stressed the “necessary basic questions”
identified by Lord President Dunedin in Morton v William Dixon Ltd, and
referred to the Caparo test: see para 32 above.
108.
One can understand the Extra Division’s concern
that the law should not be excessively paternalistic. Miss Kennedy was not, however,
in the same position as an ordinary member of the public going about her own
affairs. It was her duty, as someone employed by Cordia as a home carer, to
visit clients in their homes in different parts of the city on a freezing
winter’s evening despite the hazardous conditions underfoot. Unlike an ordinary
member of the public, she could not choose to stay indoors and avoid the risk
of slipping and falling on the snow and ice. Unlike an ordinary member of the
public, she could not choose where or when she went. She could not keep to
roads and pavements which had been cleared or treated. She could not decide to
avoid the untreated footpath leading to Mrs Craig’s door. Unlike an ordinary
member of the public, she was obliged to act in accordance with the
instructions given to her by her employers: employers who were able, and indeed
obliged under statute, to consider the risks to her safety while she was at
work and the means by which those risks might be reduced. In those
circumstances, to base one’s view of the common law on the premise that Miss
Kennedy was in all relevant respects in the same position as an ordinary member
of the public is a mistake.
109.
Furthermore, the common law relating to employers’
liability was not definitively stated by Lord Dunedin in Morton v William
Dixon Ltd. As long ago as 1959, Lord Keith of Avonholm devoted his speech
in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 to the clarification
of Lord Dunedin’s dictum. He observed that the ruling principle was that an
employer was bound to take reasonable care for the safety of his workmen, and
all other rules or formulas must be taken subject to that principle (a point
which had earlier been made, in relation to Lord Dunedin’s dictum, by Lord
Normand in Paris v Stepney Borough Council [1951] AC 367, 382 and by
Lord Reid in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC
552, 571, amongst others). He added that Lord Dunedin could not have intended
to depart from or modify that fundamental principle. Both in that case and in Brown
v Rolls Royce Ltd 1960 SC (HL) 22; [1960] 1 WLR 210 Lord Keith emphasised
that Lord Dunedin was laying down no proposition of law.
110.
The context in which the common law of employer’s
liability has to be applied has changed since 1909, when Morton v William
Dixon Ltd was decided. As Smith LJ observed in Threlfall v Kingston-upon-Hull
City Council [2010] EWCA Civ 1147; [2011] ICR 209, para 35 (quoted by the
Lord Ordinary in the present case), in more recent times it has become
generally recognised that a reasonably prudent employer will conduct a risk
assessment in connection with its operations so that it can take suitable
precautions to avoid injury to its employees. In many circumstances, as in
those of the present case, a statutory duty to conduct such an assessment has
been imposed. The requirement to carry out such an assessment, whether statutory
or not, forms the context in which the employer has to take precautions in the
exercise of reasonable care for the safety of its employees. That is because
the whole point of a risk assessment is to identify whether the particular
operation gives rise to any risk to safety and, if so, what is the extent of
that risk, and what can and should be done to minimise or eradicate the risk.
The duty to carry out such an assessment is therefore, as Lord Walker of
Gestingthorpe said in Fytche v Wincanton Logistics plc [2004] UKHL 31;
[2004] ICR 975, para 49, logically anterior to determining what
precautions a reasonable employer would have taken in order to fulfil his
common law duty of care.
111.
It follows that the employer’s duty is no longer
confined to taking such precautions as are commonly taken or, as Lord Dunedin
put it, such other precautions as are so obviously wanted that it would be
folly in anyone to neglect to provide them. A negligent omission can result
from a failure to seek out knowledge of risks which are not in themselves
obvious. A less outdated formulation of the employer’s common law duty of care
can be found in Baker v Quantum Clothing Group Ltd [2011] UKSC 17;
[2011] 1 WLR 1003, para 9.
112.
In the present case, Cordia were aware of a history
of accidents each year due to their home carers slipping on snow and ice, and
they were aware that the consequences of such accidents were potentially
serious. Quite apart from the duty to carry out a risk assessment, those
circumstances were themselves sufficient to lead an employer taking reasonable
care for the safety of its employees to inquire into possible means of reducing
that risk.
113.
Had such inquiries been made, or a proper risk
assessment carried out, the implication of the evidence accepted by the Lord
Ordinary is that Cordia would have learned that attachments were available, at
a modest cost, which had been found to be effective in reducing the risk, and
had been provided by a number of other employers to employees in a similar
position. In those circumstances, the Lord Ordinary was entitled to conclude
that Cordia were negligent in failing to provide Miss Kennedy with such
attachments.
114.
It is necessary only to add that the familiar
threefold test set out by Lord Bridge of Harwich in Caparo is not
relevant in this context, as counsel for Cordia acknowledged. That test is
concerned with the imposition of a duty of care in novel circumstances. There
is no doubt that an employer owes a duty of care towards its employees. The
question in the present case is not whether a duty of care existed, but whether
it was fulfilled.
Causation
115.
It remains to consider the Extra Division’s
conclusion that the Lord Ordinary was not entitled to find Cordia liable in the
absence of any explicit finding that Miss Kennedy’s injury had been caused by
any breach of duty on their part. The question is not, of course, whether Miss
Kennedy’s injury would necessarily have been prevented: as in other civil
contexts, the matter has to be decided on a balance of probabilities.
116.
The Lord Ordinary made no express findings in
relation to causation, other than that he accepted Miss Kennedy’s evidence that
she would have used anti-slip attachments if they had been provided to her. The
question therefore is whether, in the light of the other findings which were
made, the only reasonable inference which could be drawn was that Cordia’s
breach of their duties caused or made a material contribution to Miss Kennedy’s
accident.
117.
So far as the Management Regulations are concerned,
the breach of regulation 3(1) resulted in a failure to provide protective
equipment, in breach of the PPE Regulations. The issue of causation therefore
turns on the consequences of the latter breach.
118.
So far as the PPE Regulations are concerned, the
finding that there was a breach of regulation 4(1) implies that there was a
failure to ensure that “suitable” equipment was provided. As we have explained,
equipment is “suitable” only if “so far as is practicable, it is effective to
prevent or adequately control the risk or risks involved”: regulation 4(3)(d).
It follows from that definition that the equipment need not necessarily prevent
the risk, but it must, as a minimum, adequately control the risk so far as is
practicable. The concept of suitability thus contains a causal component. The Regulations
do not define “adequately”, but it can be inferred from the EU legislation
(including the requirement under article 5(1) of the Framework Directive that
the employer shall have a duty to ensure the safety and health of workers) that
a risk will not be adequately controlled unless injury is highly unlikely.
Bearing in mind that the PPE Regulations should not be construed in such a way
as to reduce pre-existing levels of protection, that conclusion is also
supported by case law on the previous domestic law. For example, in the case of
Rogers v George Blair & Co Ltd (1971) 11 KIR 391, which concerned
the duty to provide “suitable” goggles under section 65 of the Factories Act 1965,
Salmon LJ stated at p 395:
“The protection, to be suitable,
need not make it impossible for the accident to happen, but it must make it
highly unlikely.”
119.
It follows that where an employee has been injured
as a result of being exposed to a risk against which she should have been
protected by the provision of PPE, and it is established that she would have
used PPE if it had been provided, it will normally be reasonable to infer that
the failure to provide the PPE made a material contribution to the causation of
the injury. Such an inference is reasonable because the PPE which the employer
failed to provide would, by definition, have prevented the risk or rendered
injury highly unlikely, so far as practicable. Such an inference would not, of
course, be appropriate if the cause of the accident was unconnected with the
risk against which the employee should have been protected.
120.
In the present case, there was no suggestion that
it would not have been practicable to provide equipment which was effective to
prevent or adequately control the risk or risks involved, and the evidence of
Mr Greasly was to the contrary effect. In the circumstances, the only inference
which could reasonably have been drawn was that the breach of regulation 4(1)
had caused or materially contributed to the accident, and that Cordia were
therefore liable to Miss Kennedy under the PPE Regulations.
121.
If, on the other hand, the Lord Ordinary’s finding
of a breach of regulation 4(1) of the PPE Regulations is left out of account,
and one focuses solely upon his finding of a breach of a common law duty of
care, then the position in relation to causation is more problematical. Given
that the Lord Ordinary accepted Mr Greasly’s evidence about the slip resistance
of the attachments which he had experienced using, it might perhaps have been
inferred as a matter of common sense that Cordia’s failure to provide such
attachments was a material cause of Miss Kennedy’s accident (cf Drake v
Harbour [2008] EWCA Civ 25, para 28). It cannot, however, be said that the
Lord Ordinary would necessarily have reached that conclusion. His opinion does
not contain any explicit consideration of the matter, or articulate any
conclusion. In those circumstances, it is difficult to maintain that there was
a proper foundation for his decision that Cordia were liable in damages at
common law. That conclusion is however of no practical significance, given that
Cordia are liable in any event under the 1992 Regulations.
Conclusion
122.
For these reasons, we would allow the appeal.
