Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 76

PD1079/12

Lady Smith

Lord Brodie

Lord Clarke

OPINION

delivered by LADY SMITH

in the Reclaiming Motion

by

TRACEY KENNEDY

Pursuer and Respondent;

against

CORDIA (SERVICES) LLP

Defenders and Reclaimers:

Act:  Mackay QC, E Mackenzie;  Digby Brown LLP

Alt:  Smith QC, Martin-Brown;  Glasgow City Council Corporate Services

19 September 2014
[1]       I have had the advantage of reading Lord Brodie’s opinion and I agree with his conclusions and reasoning.

[2]       In particular, it is clear to me that the respondent did not establish that her injuries were due to any breach of duty by the reclaimers, whether under the 1992 or 1999 Regulations, or at common law.  Fundamentally, the risk to the respondent was an ordinary risk arising, in a public place, from the ordinary facts of life in Scotland.  It was a risk encountered, at the time of her accident, by any person walking on snow covered pavements, whatever the reason or reasons they had to do so.  There was nothing about the nature of her work which caused the risk or exacerbated it – unlike the employee in the Henser - Leather case - who, unlike the ordinary member of the public, had to carry substantial amounts of cash collected from commercial premises, across a public pavement.  In the present case, the risk was not a risk that arose from any hazard inherent in the particular job that the respondent was employed to do, namely to provide personal care to an elderly woman, in her home.  Nor was this a risk which was, as a matter of fact, amenable to control or minimisation at the hands of the reclaimer; the state of the public streets and pavements was not their domain.  This was far removed from the type of risk to which the 1992 Regulations apply as is emphasised by, for instance, the terms of reg 8. 

[3]       In any event, the reclaimers did assess this risk in a way which, I also agree, satisfied the requirements of the 1999 Regulations – breach of which could not, in any event, of itself give rise to liability - and the reclaimers also provided what was, in all the circumstances, adequate training.  Further, importantly, on the evidence, it was not established that the risk of the respondent slipping would, as a matter of fact, have been materially reduced by the addition to her flat, ridged rubber soled boots, of Yaktrax or any other “add on”. 

[4]       The evidence of Mr Greasly does not cast any of the above in a different light principally because, for the reasons explained by Lord Brodie, the Lord Ordinary certainly ought to have found that it was not admissible as expert evidence in the case. If the respondent’s reliance on it is an example of a more widespread assumption that it is always necessary to lead a witness to, in effect, tell the court what to think about how an employer should approach the fulfilment of his statutory and common law duties, that is an ill founded assumption and is a matter of considerable concern.  It is not as if this is the first time that the court has had to explain the limits to the circumstances in which expert evidence is admissible and, indeed, the circumstances in which evidence can properly be regarded as expert evidence.  Further, even if Mr Greasly’s evidence had been admissible, it did not support the respondent’s case that her injuries were in fact caused by the reclaimers’ breach of any duty. 

[5]       Separately, I agree that there was no basis in fact or law for the Lord Ordinary’s conclusion that there was a breach of duty at common law.  His reasons for doing so are not at all clear but what is clear is that he did not address the necessary basic questions identified by Lord President Dunedin in Morton v Dixon at p809.  Nor did he ask himself whether, in all the circumstances, it would be fair, just and reasonable to hold that the reclaimers were bound to determine the precise footwear to be worn by each employee each time they embarked on a journey, through the public streets, to reach the place where they were to perform the duties of their role.  If he had addressed these questions, he could only, properly, have answered them in the negative.  If the Lord Ordinary was correct, it would mean that the reclaimers were, unreasonably, obliged to monitor the weather and street conditions at all places where they were, at any time, providing care services at home, at all times, check whether there was a risk of slipping, instruct their employees what to wear on their feet, supply that footwear and run checks of whether or not they were wearing what they had been instructed to wear.  That, with all due respect to the Lord Ordinary, would obviously have been impractical and unworkable.  If the Lord Ordinary was correct, it would mean that the reclaimers were, unreasonably, not entitled to rely on their employees’ common sense and their ability, as normal adults, to wear what, as individuals, they found to be appropriate footwear for slippery conditions, in circumstances where the training provided by the reclaimers had included advice and instruction about such matters.  It is not simply a matter of the existence of a risk, as seems to have been the Lord Ordinary’s approach; no employer is under a duty at common law to address , ameliorate or eliminate every risk which an employee may encounter in the course of the working day.

[6]       I am, in all the circumstances, satisfied that this reclaiming motion must succeed.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 76

PD1079/12

Lady Smith

Lord Brodie

Lord Clarke

OPINION

delivered by LORD BRODIE

in the Reclaiming Motion

by

TRACEY KENNEDY

Pursuer and Respondent;

against

CORDIA (SERVICES) LLP

Defenders and Reclaimers:

Act:  Mackay QC, E Mackenzie;  Digby Brown LLP

Alt:  Smith QC, Martin-Brown;  Glasgow City Council Corporate Services

19 September 2014

Introduction
[7]        On 18 December 2010 Ms Kennedy (the respondent) was working for Cordia (Services) LLP (the reclaimers) as a carer, providing care to elderly and infirm persons in their own homes.  During the evening of that day she and a colleague went to visit a terminally ill elderly housebound person in order to provide her with personal care.  The elderly person lived in the Crookston area of Glasgow.  The weather was freezing cold and icy.  Snow was falling.  The respondent and her colleague travelled by car and, having parked their vehicle, continued on foot down a path towards the home of the person they were to visit.  The respondent was wearing ankle boots made from synthetic waterproof fabric with a flat but ridged rubber sole.  As she was making her way down the path the respondent lost her footing, fell and injured her wrist. 

[8]        Following a proof restricted to the issue of liability, the Lord Ordinary found the reclaimers liable to make reparation to the respondent in respect of her injury by reason of the reclaimers’ breach of their duties towards the respondent under the Management of Health & Safety at Work Regulations 1999 and the Personal Protective Equipment at Work Regulations 1992, and at common law.  He made no finding of contributory negligence.  Put shortly, the case that succeeded was that the reclaimers were in breach of duty by failing to provide the respondent with, instruct the respondent in the use of, and ensure that respondent used, attachments to be worn over her footwear (described by the Lord Ordinary as “add-ons”) in order to give enhanced grip in conditions of snow and ice such as prevailed on 18 December 2010.  That case had been supported by Mr Sydney Lenford Greasly, the only witness led on behalf of the respondent other than the respondent herself.  Despite an objection to his evidence on the ground that he did not have any relevant special skill or experience or specialised learning, the Lord Ordinary treated Mr Greasly as an expert witness in “the areas of health and safety at work which would not be in the knowledge of the court”.  He accepted Mr Greasly’s evidence “in the entirety”.

[9]        The reclaimers have reclaimed.  No point is taken in relation to contributory negligence.  The reclaiming motion raises one determinative issue: did the Lord Ordinary err in law in holding that breach of duty imposed, respectively, by the 1999 Regulations, the 1992 Regulations or the common law, had caused the respondent’s injury? and one ancillary issue: did the Lord Ordinary err in holding that the evidence of Mr Greasly was admissible in relation to incidence and breach of duty?  I turn first to the ancillary issue.

Was Mr Greasly’s evidence on incidence and breach of duty admissible?
[10]      Some of Mr Greasly’s evidence clearly was admissible.  It was not dependent upon him having any particular expertise.  He was speaking to fact, either from direct experience or hearsay.  He had visited the path where the respondent had fallen (although not in conditions of snow and ice), had photographed it, and had measured its slope and cross-slope.  He was able to report on what he had seen.  He also spoke to the availability on the market of a variety of attachments to be fitted over shoes.  They included “Yaktrax”, “Magic Spiker”, “STABILicers”, and “Sandy ice grips”.  These products differ from one another in their design and therefore their precise means of operation but their common features are that ceramic plates, steel coils, spikes, studs or chains are fitted over the soles of ordinary footwear by means of elasticated straps with a view to increasing the grip of the user’s footwear in conditions of snow and ice.  The name “Yaktrax” was used both to identify a particular product and as a generic descriptor.  Mr Greasly’s knowledge of these products was largely based on what he had learned from consulting the Internet and from his communications with manufacturers, but he had acquired a pair of Yaktrax some eighteen months prior to his giving evidence and therefore was able to report, on the basis of his having used them, that he had found them helpful in increasing traction in ice and snow.  The Lord Ordinary summarised Mr Greasly’s evidence as being that Yaktrax reduced the risk of slipping although there was no one answer to the problem;  everyone still had to take care.  

[11]      In his reports which were produced and in his evidence, Mr Greasly referred to six articles published in, respectively, the Journal of Occupational Accidents, the Journal of the American Geriatric Society, Applied Ergonomics, the Proceedings of the 21^st Workshop of International Cooperation on Theories and Concepts in Traffic Safety, and the International Journal of Industrial Ergonomics.  Were these references to be viewed as incorporating what appears in the articles into Mr Greasly’s evidence or as supporting that evidence in some way, then a question would arise as to whether the published material or parts of it lay within such area of expertise as Mr Greasly may have: see Main v Andrew Wormald Ltd 1988 SLT 141 and McTear v Imperial Tobacco Ltd 2005 2 SC 1 at paras [5.12] to [5.17].  However, I do not see that as a question that needs to be addressed.  Mr Greasly’s consideration of the various articles does not appear to have taken him further than the modest and uncontroversial conclusion expressed in paragraph 4.14 of his report, 6/3 of process: “There are attachments for shoes that are said to increase the safety of the wearer in ice and snow conditions.”  If the Lord Ordinary made anything more of the articles, despite describing one as “particularly useful” and “particularly helpful” (in what way is not disclosed), he does not reveal that in his opinion.  I agree with the submission for the reclaimers that the content of the articles was essentially irrelevant to the matter in issue. 

[12]      More pertinent is the point, taken as an objection at proof and insisted upon in this reclaiming motion, that Mr Greasly should not have been permitted to give opinion evidence at all as to the incidence and breach of duties under the respective regulations and at common law.  At the conclusion of the proof the Lord Ordinary, having heard the evidence under reservation of competency and relevancy, repelled the objection on the view that Mr Greasly clearly had the qualifications to provide expertise “in areas of health and safety at work which would not be in the knowledge of the court”.  In material respects that evidence, as summarised by the Lord Ordinary, took the form of opinion and prescription: the measures specified in the reclaimers’ risk assessment did not reduce the risk, personal protective equipment should have been provided, the employer should choose and supply the correct footwear (opinion paragraph [16]);   it was for the employer to find out what personal protective equipment was best and it should have provided Yaktrax or some other type of fitting (paragraph [20]);  the assessment of risk should have been substantial, what the employer had to do was reduce or eliminate the risk, that would have been done if Yaktrax had been provided (paragraph [21]);   the condition required some form of shoe “add on” (paragraph [47]);  and  regulation 4 was breached (paragraph [48]). 

[13]      The Lord Ordinary accepted Mr Greasly’s evidence without reservation, including his opinion that the reclaimers had been in breach of the 1999 and the 1992 Regulations (see opinion paragraphs [47] and [48]).  That evidence led the Lord Ordinary to his conclusions.  They are set out at paragraphs [70] to [72} of his opinion in these terms:

“[70]    ...  In view of my acceptance of Mr Greasly as a credible, reliable and accurate witness about the risks and the relatively simple precautions to reduce that, the following is my view and finding on the risk assessments.  Neither risk assessment is ‘suitable and sufficient’.  I am critical of the methodology ... and it is wholly unclear that the so-called precautions in place justified a reduction of the risk to ‘tolerable’.  The evidence about the training and enforcement is vague and unsatisfactory.  There has been no attempt to consider PPE for footwear.  That in itself shows that whatever precautions the reclaimers thought they were taking could never amount to ‘adequate control by other means which are equally or more effective ...’  Furthermore, on the evidence I have just examined, it is impossible to say that this amounts to any adequate control of what the employees wore. 

[71]      It follows that on the evidence I hold that the reclaimers are in breach of both the regulations relied on by the respondent.

[72]      For the same reasons I find the reclaimers 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.”

[14]      I agree with the reclaimers’ submission that Mr Greasly should not have been allowed to give the evidence summarised by the Lord Ordinary at paragraphs {16], [20], [21], [47] and [48] of his opinion.  It is one thing to say that a precaution could have been taken;  that is simply a matter of fact and is accordingly, in the context of litigation, within the province of a witness.  It is another thing to say that a precaution should have been taken,  that is a matter of judgement to be exercised by reference to the applicable rules of law and, in the context of litigation, generally within the exclusive province of the judge.  The criticism of the Lord Ordinary here is that he abdicated his role as decision-maker in favour of Mr Greasly.  I accept it as being well made.

[15]      In objecting to the evidence of Mr Greasly, counsel for the reclaimers referred to Wilson v HMA 2009 JC 336.  There the court restated the rule that in normal circumstances witnesses may only give evidence about matters within their direct knowledge;  they are not permitted to express opinions.  The particular context was a criminal case but the rule is general.  The admission of expert evidence is an exception to that rule.  While acknowledging that the nature and scope of expert opinion evidence could not be exhaustively defined, at paragraph [58] of its opinion, the court in Wilson provided this by way of guidance:

“First, the 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.  Secondly, the subject-matter in question must be part of a recognised body of science or experience which is suitably acknowledged as being useful and reliable, and properly capable of reaching and justifying the opinions offered, and the witness must demonstrate a sufficiently authoritative understanding of the theory and practice of the subject.”

In the present case the dispute that had to be resolved was whether, on the basis of the essentially uncontroversial primary facts, as a matter of law, the reclaimers were under a duty to take a particular precaution (providing attachments to footwear and ensuring their use) and, had they taken that precaution, whether the respondent would have suffered injury.  That was something that 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.  It may be that a judge has personally never carried out a risk assessment of any kind.  That does not mean that, having heard evidence of the nature of the activity being assessed and having been provided with a document recording the risk assessment, he cannot determine whether or not the assessment was “suitable and sufficient” in terms of regulation 3(1) of the 1999 Regulations.  It is the job of a judge to hear evidence about matters with which he may previously have been totally unfamiliar and, on the basis of that evidence, come to conclusions of fact and then apply the relevant law to these facts.  In Midland Bank Trust Company Limited v Hett Stubbs & Kemp [1979] 1 Ch 384 (a case of alleged negligence on the part of a solicitor engaged to carry out a conveyancing transaction) Oliver J was faced with a similar situation to that which faced the Lord Ordinary here.  In what has become a much-quoted passage, he said this, at p402:

“I must say that I doubt the value, or even the admissibility, of this sort of evidence, which seems to be becoming customary in cases of this type.  The extent of the legal duty in any given situation must, I think, be a question of law for the Court.  Clearly if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received.  But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the Defendants, is of little assistance to the Court  whilst evidence of the witness’s view of what, as a matter of law, the solicitor's duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the Court's function to decide.”

Mr Greasly’s opinion evidence as to what ought to have been done in the circumstances was unnecessary.  For that reason alone it was inadmissible:  Wilson v HMA supra, Gage v HMA 2012 SCCR 161 at paras 22,25 and 34.  The reason it was unnecessary was that the judicial process provides a person with a knowledge of the relevant law whose function is to decide what ought to have been done in the circumstances disclosed by the evidence of fact.  That person is the judge. 

[16]      The objection to Mr Greasly’s evidence being received as expert evidence goes further.  The Lord Ordinary treated Mr Greasly as an expert “in areas of health and safety at work which would not be within the knowledge of the court.” When asked to identify Mr Greasly’s field of expertise counsel for the respondent offered nothing more specific than: “health and safety”.  Frankly, I do not know what that means.  The present case is about the application of the law to a few relatively simple facts within the realm of ordinary human experience in Scotland.  The Lord Ordinary did not identify what it was that he considered not to be within the knowledge of the court.  I am unable to do so.  I do not recognise “health and safety” as being what the court in Wilson identified as “a recognised body of science or experience which is suitably acknowledged as being useful and reliable, and properly capable of reaching and justifying the opinions offered”.  The point is this.  A person does not become able to give expert evidence simply by reason of the depth of his knowledge or the width of his experience.  The subject matter of that knowledge or experience must be such that it forms part of a generally recognised and specific discipline with a core of organised principle and practice shared by the exponents of that discipline and accordingly amenable to forensic examination and evaluation: Young v HMA 2014 SCCR 78 at para 54.  As is explained in Lewis, Manual of Evidence in Scotland, at p47, to be relevant a statement of opinion must be “based on the principles of some recognised craft or science in relation to which the witness may be cross-examined.” The “craft or science” need not be highly sophisticated.  It need not have an extensive associated literature.  But it must have identifiable generally accepted principles to which reference can be made.  An opinion from someone skilled in such a craft or science may be able to instruct or advise the judge on a particular area of knowledge or experience (to use the language of Wilson).  Any other sort of opinion is no more than the expression of the personal views of the witness and, as such, of no evidential value.  Mr Greasly’s frequent expressions of opinion during the course of his evidence were of the latter sort.  They do not constitute expert evidence, as that is properly to be understood.  Accordingly, they were not admissible.

Did the Lord Ordinary err in law in holding that breach of duty caused the respondent’s injury?
The Management of Health & Safety at Work Regulations 1999

[17]      Regulation 3(1) of the 1999 Regulations requires that:

“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 ..."

[18]      The reclaimers had carried out two risk assessments (productions 7/4 and 7/5) which included an assessment of the risk of home carers slipping on snow and ice on public streets while working in the course of their employment.  In the absence of argument to the contrary, for present purposes I proceed on the basis that the risk of slipping on public streets was one of the risks that regulation 3 of the 1999 Regulations required the reclaimers to assess.

[19]      As the reclaimers accepted, carrying out a suitable and sufficient assessment of risks in fulfilment of the duty imposed by regulation 3 is an integral part of the overall safety system that an employer must provide.  It is the discipline that forces him to make himself aware of risks and consider how they are to be avoided or, if unavoidable, reduced.  Its purpose is the identification of the measures to be taken to comply with the requirements and prohibitions of other statutory provisions.  It is, to use the expression used by Smith LJ in the passage from her judgment in Threlfall v Kingston-upon-Hull City Council [2011] ICR 209 quoted by the Lord Ordinary at paragraph [63] of his opinion, “logically anterior to the taking of safety precautions.” However, implementing the regulation 3 duty to make a suitable and sufficient risk assessment is not, of itself, the taking of a safety precaution.  Putting it another way, regulation 3, by itself, does not require the taking of any safety precaution and therefore a breach of the regulation 3 duty cannot, in a case where it is averred that the failure to take a safety precaution caused injury, be said to be the direct cause of that injury.  It is not apparent that the Lord Ordinary kept that in view. 

[20]      Having accepted the criticisms of the risk assessments made by Mr Greasly, the Lord Ordinary concluded that the assessments were not suitable and sufficient and that, therefore, the reclaimers were in breach of the regulation 3 duty.  The reclaimers submitted that he had not been entitled to come to that conclusion but, be that as it may, what he certainly was not entitled to do was, as he put it at paragraph [78] of his opinion, to “find the defenders liable under both Regulations”.  There can only be liability in reparation if breach of duty causes injury.  The respondent’s case was that failure to take a specific precaution, the supply and instruction in the use of attachments to footwear, caused her injury.  The 1999 Regulations do not impose any duty to take precautions.  In finding the reclaimers liable under the 1999 Regulations, the Lord Ordinary, as was submitted by counsel for the reclaimers, conflated two separate matters: the duty to assess risk for the purpose of identifying measures the employer needs to take in order to comply with such duty or duties as may be imposed by some other statutory provision, and the duty imposed by such other provision, for example, a duty to ensure that suitable personal protection equipment is provided.  In so doing the Lord Ordinary erred in law.  Even if it is the case that the reclaimers failed properly to discharge their duty under regulation 3 of the 1999 Regulations, that cannot be said to have caused the respondent’s injury.  The reclaimers therefore cannot be liable to the respondent in respect of breach of the 1999 Regulations.

The Personal Protective Equipment at Work Regulations 1992
[21]      Regulation 4 (1) of the 1992 Regulations provides:

“4...  (1) 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...”

Regulation 10(1) provides:

“10 ... (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.”

[22]      The duty under regulation 4 is owed in respect of “employees who may be exposed to a risk ... while at work”.  In the course of a working day a person in employment may be exposed to risks to his personal health and safety which are specific to the circumstances of his particular employment.  He may also be exposed to risks which he shares with other members of the public who are in different employments or in no employment.  The 1992 Regulations were enacted to transpose the third individual directive (Council Directive 89/656/EEC) within the meaning of article 16(1) of the Framework Directive (Council Directive 89/391/EEC).  The object of the Framework Directive, as expressed in article 1.1, was to introduce measures to encourage improvements in the safety and health of workers at work.  Similarly, the third individual directive lays down minimum requirements for personal protective equipment used by workers at work (article 1.1).  Again, at article 2.1 the third individual directive defines “personal protective equipment” as “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”.  The general rule, set out in article 3 of the third individual directive, is 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.

[23]      What I take from this language, which is mirrored in the wording of regulation 4, is that the concern of the 1992 Regulations is the worker at work and the risks to which that worker is exposed which arise specifically from that work.  These are risks which both the individual directive and the Regulations assume are susceptible to being adequately controlled by the employer through a hierarchy of possible measures ;  “risks at work”, rather than other sorts of risks to which a worker may be exposed in the same way as any other member of the public is exposed.  Again, the obligation imposed on the employer by regulation 8 of the 1992 Regulations to ensure that appropriate accommodation is provided for personal protective equipment when it is not being used, suggests that what the Regulations are concerned with are risks arising in places or at least in situations where the employer can exercise control and therefore make available accommodation so that the protective equipment will be readily at hand “at work”. 

[24]      I accordingly accept that for the purposes of the 1992 Regulations a distinction falls to be made between work related risks and other risks to which a worker may be exposed.  I see that as following from the structure and language of the 1992 Regulations and the third individual directive and indeed the Framework Directive and the 1999 Regulations.  I also see it to be consistent with good sense.  Were it otherwise, employers would be required to take responsibility for the way in which employees conduct themselves to an extent which would not only be impracticable and irrational but would also constitute an unwarranted intrusion into the private lives of competent adults who within the sphere of day to day living are likely to be better placed to make judgements as to what will be conducive to their health and safety than their employers will be.  It should also be borne in mind that where the 1992 Regulations apply, in addition to the regulation 4 duty to ensure provision, there is the regulation 10 duty to ensure use.  If the nature of a particular employment in some way creates or increases a risk it is understandable and indeed reasonable that the employer should have responsibility for avoiding or reducing it.  In these circumstances the employer may be supposed to have or ought to have the requisite knowledge and means to control the risk through the hierarchy of measures set out in article 3 of the third individual directive (and see also article 6(2) of the Framework Directive and schedule 1 of the 1999 Regulations).  It is very different if the risk is not work created, such as where, for example, it is a risk created by road traffic, by the malicious or careless acts of third parties, by ill-maintained streets or other public spaces, or by inclement weather. 

[25]      This is not to say that the distinction between risks which are work related and risks which are not work related will always be easy to make.  It will be a matter of judgement based on the whole facts and circumstances of the particular case. 

[26]      The submission for the reclaimers in this case was that the risk of slipping on snow and ice lying on a public street was not “a risk ... at work” in that while it was a risk which was being faced by the respondent in the course of her employment in the broadest sense, it was exactly the same risk as was faced by any member of the public negotiating the same street at the same time.  It was not work created or work related.  People who work do not lose their identity as members of the public simply because they are in the course of their employment.  A risk to which a worker is exposed within a public environment which his employer does not control is not a “risk at work” unless his work in some way increases the risk.  The 1992 Regulations were not engaged.  The same submission had been made to the Lord Ordinary.  He must be taken to have rejected it.  He does not explain why. 

[27]      Counsel for the reclaimers relied on a passage in the judgment of Kennedy LJ in Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816.  The claimant in that case had been employed to collect substantial sums of cash from commercial premises.  He sustained serious injury when shot in the stomach by a robber.  In claiming damages he relied on the 1992 Regulations as imposing a duty on his employer to provide and ensure the use of suitable personal protective equipment in the form of body armour.  At first instance the judge held that the Regulations were not apt to cover body armour.  The Court of Appeal reversed that finding and damages were awarded.  In coming to his conclusion that the employer was under a duty to provide suitable body armour, Kennedy LJ said this at para 21:

“21.      I do not doubt that the risk to someone doing the job which this claimant was doing when he was shot can be to some extent controlled by measures such as parking his van reasonably close to the office from which cash had to be removed, and training employees not to offer resistance and to use the smoke box which was provided.  But so long as it remained (as it plainly did) well above the risk to other members of the public going about their daily tasks, it seems to me that the control could not be described as adequate.”

What the reclaimers took from this passage was that where a risk is one to which a worker is exposed is shared by other members of the public going about their daily tasks it will only be a risk “at work” if it is to a material extent made more likely to occur or is otherwise made greater by the nature of the work on which the worker is engaged.  Counsel compared the position of the claimant in Henser-Leather and that of someone employed to pick litter from the street.  Both are exposed to the risk of becoming the victim of an act of violence on the part of a criminal in a public place.  However  that of someone employed to collect substantial sums of cash from commercial premises is obviously much more likely to suffer violence in the course of a robbery than is someone whose employment does not involve him with cash at all.  In the former case the risk of criminal violence while working in the course of employment might be regarded as an “at work” risk whereas in the latter case it might not. 

[28]      Although Kennedy LJ was not specifically addressing the issue which arises in the present case, I agree that his remarks are apposite and helpful.  A factor which might make a risk, even if it is a risk to which other members of the public are exposed, a risk “at work”, is that the nature of the work materially increases the level of risk. 

[29]      The principal submission for the respondent was that there was no basis in the 1992 Regulations or the third individual directive for concluding that personal protective equipment need not be provided to protect against the “ordinary risks of life” but, in any event, it was argued that the respondent was in fact exposed to a greater risk of slipping and falling on snow and ice than other members of the public:  the respondent had felt that she had no option but to brave the hazardous conditions of a winter’s evening in order to attend on an elderly and terminally ill lady who required her care;  she  the respondent had to walk on unfamiliar snow and ice on an unfamiliar path in an unfamiliar part of the city;  and rather than simply make a journey to and from one workplace in the course of a shift her duties required her to travel between a number of workplaces.  While these observations may be true, I have not been persuaded that the risk to which the respondent was exposed was 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.  Accordingly, in the circumstances of this case, I do not consider that regulation 4 of the 1992 Regulations imposed a duty on the reclaimers to provide the respondent with personal protective equipment aimed at reducing the risk of her slipping on snow and ice.

[30]      Should I be wrong in my conclusion that the risk of slipping on snow and ice is not, in the circumstances of this case, a risk at work which engages regulation 4 of the 1992 Regulations, it would be necessary to consider whether or not it was adequately controlled by other means which were equally or more effective than the provision of attachments.  It appears to me on the basis of the Lord Ordinary’s findings that the slipping risk was in fact adequately controlled.  The respondent had been given training which included discussion about how she would cope with snow and ice.  That included taking particular care while walking and selecting footwear with a reasonable grip.  The respondent demonstrated in her evidence and, indeed, by her actions on the day of her accident that she understood these points.  As against that there was little evidence as to the likely efficacy of unspecified attachments over the range of underfoot conditions that the respondent could have been expected to encounter in the course of her shift on 18 December 2010.  Even limiting consideration to the pathway on which the respondent fell, as is discussed below, it cannot be said on the evidence that wearing attachments would have made any material difference on that particular surface.

Common law

[31]      In the present case, having reminded the respondent during her training of the risks of slipping in inclement weather, and of the importance of wearing suitable footwear and taking care, the reclaimers left it to her to choose whatever footwear she considered suitable.  The Lord Ordinary held that that amounted to negligence.  In his view reasonable care required further action.  He highlighted what he saw as the reclaimers’ deficiencies at paragraph [72] of his opinion: “In the face of an obvious and continuing risk they provided no safe footwear.  There is no evidence that they checked what was being worn.”

[32]      It has never been the law that nothing more than it being foreseeable that another person may suffer harm in the event that a particular precaution is not taken gives rise to a duty at common law to take that precaution.  That is so even where there is a relationship of proximity such as that between employer and employee.  The reclaimers referred to the well-known passage in the opinion of Lord President Dunedin in Morton v Wm Dixon Ltd 1909 SC 807 at 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.”

What is sometimes known as the Dunedin formula was explained in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 but it has never been disapproved and continues to be cited and followed (see eg Shields v Crossroads (Orkney) 2014 SLT 190).  It cannot be said, on the basis of the findings in the present case, that either requirement of Lord Dunedin’s formula was satisfied. 

[33]      Although concentrating on the statutory case, the Lord Ordinary appears to acknowledge that his finding that the reclaimers were in breach of duty was, in the circumstances, somewhat innovative.  He expresses sympathy for the reclaimers in the circumstances but in an observation for which he cites no basis in authority, states, “Safety is to be levelled upwards” (opinion paragraph [77]).

[34]      What is lacking in the Lord Ordinary’s consideration of the common law case (if, indeed, he gave it any consideration independent of the statutory case) is a balancing of both sides of the argument with a view to determining whether it would be fair, just and reasonable to find there to be a duty of care of the scope contended for by the respondent: cf Caparo Industries plc v Dickman [1990] 2 AC 605 at 617 to 618 and Mitchell v Glasgow City Council 2009 SC (HL) 21 at paras 21 to 25.  Had he done so I cannot see how he could have failed to reject the respondent’s contention that the reclaimers were under a common law duty to determine exactly what their competent adult employees should wear on their feet when negotiating the streets of Glasgow in the various conditions which might be foreseeable.  I have already observed when discussing the 1992 Regulations that a duty of this sort appears to me to be an unwarranted intrusion into the private lives of adults who within the sphere of day to day living are likely to be better placed to make judgements as to what will be conducive to their health and safety when walking the streets than their employers will be.  Adults in Scotland can be expected to have experience of negotiating snow and ice in an urban environment and in choosing footwear which will help them to do so.  The respondent certainly did.  What is pled is a duty to provide “reasonably safe work equipment”.  It might be thought that, as far as footwear was concerned, the boots worn by the respondent, with their flat and ridged rubber soles, met that description.  Indeed, it might be thought that they met that description rather better than Yaktrax, in that, taking the evidence at the highest for the respondent, attachments are thought to provide better traction than soft rubber soles only in certain conditions of snow and ice.  That raises the question of the practicality and the resource implications of what the Lord Ordinary identified as a duty of reasonable care.  The specific risk of slipping on snow and ice is not so much a continuing risk, as it was described by the Lord Ordinary, as an intermittent risk;  it only arises from time to time, depending on the weather conditions.  Equally, wearing attachments when snow and ice are not on the ground is, according to some of the evidence, likely to increase rather than decrease the risk of a fall.  Accordingly, the duty envisaged by the Lord Ordinary would include monitoring the weather with a view to determining what footwear would be most suitable and then ensuring that it was worn by employees who would be likely, at any particular time, to be scattered throughout the city.  A general evaluation of the likely weather conditions would not be enough in that the performance of footwear or attachments to footwear is, on such evidence as was available, specific to the precise nature of the surface underfoot.  How an employer would go about ensuring that what he had determined to be the appropriate footwear for the conditions was worn is by no means obvious.  As I would see it, even if the duty figured by the Lord Ordinary is not to be rejected as simply totally impracticable, imposing it on the reclaimers would not be fair, just and reasonable.  In relation to some matters, care for health and safety is best left in the hands of the individual adult concerned.  The relationship of employer and employee is not to be treated as being the equivalent to that of nursery teacher and pupil, or that of parent and child:  Smith v Austin Lifts [1959] 1 WLR 100 at 105.

[35]      The reclaimers advanced a further criticism of the Lord Ordinary’s decision: there is no finding of causal connection between a failure to supply footwear attachments and the respondent’s fall, neither are there findings of primary fact which would allow such a connection to be inferred.  I consider this criticism to be well founded. 

[36]      To give rise to liability on the part of the reclaimers to make reparation, the relevant breach of statutory or common law duty of care must be causative of the relevant damage, here the respondent’s wrist injury.  In that he found the reclaimers liable by reason of their failure to supply one of the examples of the variety of attachments available on the market, it would appear that the Lord Ordinary considered that, had the reclaimers provided attachments and had the respondent been wearing them at the time (which she said she would have done) she would not have fallen.  As I have concluded that in the circumstances there was no duty, either in terms of regulation 4 of the 1992 Regulations or at common law, to supply attachments, the question does not arise, but had it arisen I would have had some difficulty in identifying why it is in this case that the wearing of attachments would necessarily have prevented the respondent’s fall.  The matter is not addressed expressly in anything of the nature of a finding in fact.  The Lord Ordinary accepted the respondent’s evidence and therefore the narrative of that evidence (at paragraph [11] of his opinion) as being that both her feet slipped and she fell backwards may be regarded as a finding of fact.  That the path “had snow on top of ice” and the respondent “was taking care and watching where she put her feet” might allow the inference that it was because of the presence of snow or ice or a combination of the two that the respondent slipped.  I would assume that that is what the Lord Ordinary understood to have happened, although he does not say so in terms.  However, that does not take the respondent the distance of proving that, had she been wearing attachments (of whatever precise design), that would have prevented her from slipping.  That matter is not really addressed by the Lord Ordinary at all.  At best for the respondent the Lord Ordinary goes no further than his reference to Mr Greasly’s evidence that Yaktrax reduced the risk of slipping.  Had the Lord Ordinary dealt with question of causation he would have required to take a view on the passages in the cross-examination of Mr Greasly (transcript pages 207 to 209 and 216 to 219) to which the reclaimers drew attention.  There, Mr Greasly conceded that he could not say that Yaktrax would have made any difference for the respondent on the particular surface on which she found herself.  Moreover, the various types of attachments differed in their performance, depending on different sorts of snowy or icy surfaces.  In that the duty found by the Lord Ordinary is not specific to a particular design or type of attachment, it is all the more difficult to relate the wearing of attachments to the avoidance of a fall. 

[37]      Counsel for the respondent reminded the court of the limitations on the power of a court of review to interfere with findings in fact by a court of first instance, as recently discussed by Lord Reed in his opinion in McGraddie v McGraddie 2014 SC (UKSC) 12.  I recognise these limitations.  Had the Lord Ordinary explicitly concluded, on the basis of his findings of primary fact, that wearing attachments would have prevented the respondent from falling, it might very well not have been open to this court to disturb that conclusion.  He did not do so.  In the result there is no clear basis in his findings for the conclusion that what the Lord Ordinary took to be a breach of statutory and common law duties on the part of the reclaimers caused the respondent’s damage.  Neither, as far as I have seen, is there such a basis in the evidence.

Decision
[38]      I propose to your Ladyship and your Lordship that we should allow the reclaiming motion, recall the interlocutor of the Lord Ordinary, grant decree of absolvitor and reserve all questions of expenses..