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Supreme Court updates the law for personal injury claims

In Kennedy v Cordia (Services) LLP, K was a home carer. There had been severe wintry conditions in Scotland for several weeks, with snow and ice lying on the ground.

In Kennedy v Cordia (Services) LLP, K was a home carer. There had been severe wintry conditions in Scotland for several weeks, with snow and ice lying on the ground. To get to an elderly lady’s home, K had to use a sloping public footpath, which was covered with fresh snow overlying ice. It had not been gritted or salted. K was wearing flat boots with ridged soles. After taking a few steps, she slipped and fell, injuring her wrist. Cordia had carried out a risk assessment that year, but it did not expressly consider the risk of injury from slips and falls in inclement weather or the possible provision of personal protective equipment such as non-slip attachments for footwear.

K alleged a breach by Cordia of its duties under health and safety at work regulations and a breach of the common law duty to take reasonable care for the safety of employees. The Lord Ordinary, in Scotland, upheld K’s claim in all respects. With regard to the breach of common law, it was found that in the face of an obvious and continuing risk, Cordia provided no safe footwear, there was no evidence they checked what was being worn, nor 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 Inner House overturned the decision on the basis that the health and safety regulations did not apply and there was no breach of the common law because the omission by Cordia was not something so obviously required that it would be reckless not to have done it.

The Supreme Court (SC) upheld K’s appeal and restored the Lord Ordinary’s decision.  In doing so, the SC updated the legal position regarding an employer’s liability at common law.  It held that a reasonably sensible employer will conduct a risk assessment in connection with its operations to enable suitable precautions to be taken to avoid injury to 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 a risk assessment is therefore key in determining what precautions a reasonable employer would have taken to fulfil his common law duty.

This landmark ruling from the Supreme Court now means that any employer seeking to defend a personal injury claim must show that a risk assessment, relevant to all the circumstances in which a job is carried out, has been carried out and that its results have been acted upon by taking suitable precautions to prevent injury. 

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The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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