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OUTER HOUSE,
COURT OF SESSION
[2013] CSOH 130
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PD1079/12
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OPINION OF
LORD McEWAN
in the cause
TRACEY
KENNEDY
Pursuer;
against
CORDIA
(SERVICES) LLP
Defender:
________________
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Pursuer: Mackay,
QC, Mackenzie; Digby Brown LLP
Defender: Smith,
QC, Martin-Brown; Glasgow City Council (Corporate Services)
1 August
2013
[1] At the end
of 2010 Scotland was afflicted by a very severe winter which lasted many
weeks. Snow fell. It lay then froze. More snow fell in larger amounts and
intermittently. The pursuer (then aged 41) worked for the defenders as a
home carer. On 18 December she and a colleague had to go at night to
visit a homebound sick person. They went by car and having parked it proceeded
on foot down a path. The pursuer lost her footing, fell and was injured.
[2] The proof
before me was, by agreement, restricted to liability only. The evidence led
was in short compass. The pursuer's proof consisted of the pursuer herself and
her expert Mr Lenford Greasley. The defenders led a witness
Emma Rodger and, on commission, Martha Waugh. There was lodged a
joint minute of agreement on certain documents.
[3] In the
course of matters I was referred to the following cases. Only a few of these
were looked at in any depth:
-
Davie v Magistrates of Edinburgh 1953 SC 34
-
McGowan v Watson 2007 SC 272
-
HMA v Hainey [2013] HCJAC 47
-
Wilson v HMA 2009 JC 336
-
Allison v London Underground Ltd [2008] ICR 719
-
Threlfall v Hull City Council [2010] EWCA Civ 1147
-
Henser-Leather v Securicor Cash Services [2002] EWCA Civ 816
-
Blair v Chief Constable of Sussex [2012] EWCA Civ 633
- Chief Constable of Hampshire v
Taylor [2013] EWCA Civ 496
[4] I was also
referred to: Dickson on Evidence (2nd edition), Redgrave's Health and
Safety (8th edition) and Gloag and Henderson: Law of Scotland (2012
edition).
[5] The first
thing to take account of is what is the pursuer's case on Record about
liability. The circumstances of her accident on 18 December 2010 at night
are to be found on pages 4C to E. The journey to Crookston is described, the
parking of the vehicle close to the pathway, the prevailing weather and the
purser in her own flat boots falling on the icy pathway down to
Mrs Craig's house. There then follow averments about care staff falling
every year on snow and ice when carrying out their duties; about there being
no risk assessment to cover ice and snow or any provision of personal
protective equipment. Then it is averred that there was no guidance as to what
was suitable footwear and no provision of attachments for footwear. Some four
or five different examples of these are mentioned. There is a complaint that,
at the time, her training was not adequate and finally mention of certain
precautions taken after the accident.
[6] The
defenders deal with many of the critical averments of the pursuer on a "not
known and not admitted" basis. They aver the training given and their two risk
assessments. They say at the time she was wearing footwear with a smooth
sole. On pages 8 and 9 a case of contributory negligence is stated.
[7] Condescendence 6
states cases of fault at common law and breaches of the Management of Health
and Safety at Work Regulations 1999 and the Personal Protective Equipment at
Work Regulations 1992.
[8] Let me
first deal with the evidence. No issue was raised about credibility and I have
accepted all the witnesses as credible. I also accept the pursuer and
Mr Greasley as reliable. Miss Rodger did initially pose some
problems in the area of reliability. She was a well-qualified witness but when
she was challenged either directly, or for the alleged short comings of others,
she became very defensive and seemed unable or unwilling to accept any
criticisms of her procedures and risk assessments. That, to say the least was
a difficulty for the court, but one capable of resolution.
[9] One
witness Martha Waugh gave evidence on commission. The report of the
commissioner is before me.
[10] The pursuer
is aged 43. She presented well and gave her evidence carefully and without any
attempt to exaggerate the severity of the matter. She had been a home carer
for seven years and her precise job was "enhanced home carer" for ill or
terminally ill people. She said her induction training was in 2007 for three
weeks and she accepted that she was "shadowed" by experienced carers. She did
not remember seeing No. 7/8 of process "The Hazard Awareness sheet" (in
cross she said she might have been given it) but accepted she was probably
given No. 7/6 ("Trainer Track"). She said that she knew ice could make
you slip and you had to take your time. I accept all of the evidence as true
and accurate. It was not challenged.
[11] She then
told the court what happened on 18 December. Mrs Craig was an
elderly lady who was terminally ill. She was receiving palliative care. The
pursuer had visited her earlier that day in Crookston. She had been driven
there to her door. She went to wash her, change her nightie, pants, change her
bed position and check her medication. The weather was cold, freezing, icy and
snow was falling. It had been like that for weeks. In the evening the pursuer
returned, driven by Martha Waugh who was also a carer. Again the lady was
to have a full body wash, change of nightie, incontinence pads and her
position. On this occasion the pursuer said that Martha did "not want to take
the car round" to Mrs Craig's door which is a cul-de-sac (map
no 7/1 of process identifies it). She parked the car next to the path
which sloped down to the house. Apparently Martha did not want to drive
further as there was a danger of the car sliding on the road which had a slight
gradient. Fresh snow had fallen. Both carers got out and walked down the path
which had snow on top of ice. Under reference to photographs (No. 6/6 of
process) the pursuer described how both her feet slipped and she fell
backwards. She put her hands behind her and fell on her left wrist. She had
walked normally, taking care and watching where she put her feet. On her feet
she wore black suede boots with a ridged sole very similar to No. 6/8 of
process. The boots were her own choice. At her training she had been told to
wear suitable footwear. She then gave some general evidence about her fracture
which is not relevant for present purposes. None of this evidence was
contradicted and again I accept it.
[12] She was
asked about shoe accessories such as Yaktrax and said had she been given them
she would have worn them, would have had time to fit them that night and would
have done so. Again, I accept that nem con. She was asked about
phoning her manager and said it did not occur to her to do so. She felt she
would have been told to carry on and she herself felt she could not have left
Mrs Craig. Indeed even after she fell, Martha and the pursuer went on to
see another housebound invalid.
[13] In cross‑examination
she did not alter her evidence or contradict it. She maintained her position
that she had driven to work in her boots which were all she had available to
her. The defenders and everybody else knew how bad the weather was as it had
been like that for weeks. She again said that to call the supervisor would not
have helped. That procedure was only used if the house had a fierce dog or a
very heavy lift was involved. At that time in her private life she did not go
out much due to the weather. She again confirmed, with accuracy, where she had
fallen. She said she could see where she was going and that the path had
street lighting. Interestingly as that winter progressed she became aware of
Yaktrax and had seen people wear them.
[14] In re‑examination
she added that she had safely visited other people but not on a path like this.
[15] Mr Greasley
(aged 67) gave evidence after the pursuer. He had an engineering degree, a law
degree, long experience in the health and safety at work field in many areas
and has given evidence in court many times. He produced and spoke to his two
reports (Nos. 6/3 and 6/22 of process) I refer to these for their terms.
Having heard the pursuer, he was familiar with what had happened. He had been
to the locus and inter alia concluded that there was street lighting and
the pursuer could see where she was going. The path had a slope of 4/5°and
cross slope of 2°this indicated a 4.7% coefficient. Grip by footwear was less
on a slope. He said that someone walking on ice and snow on a slope would
change their gait.
[16] He then
looked at the risk assessments 7/4 and 7/5. 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 7/5 page 8 section D. 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.
[17] The witness
then referred to a number of published papers on traction and the effect of PPE
in relation to footwear. These were 6/13 Bruce Jones & Manning, 6/14 McKieran
(USA pub. concerning Yaktrax), 6/15 Gard v Berggard (Sweden),
6/16 Gao v Holmer, 6/17 Berggard and 6/18 Grongvist
et al. Most of these were from Northern Europe or America where cold icy
weather was always expected. From those he said it was clear that long before
the pursuer's accident suitable shoe or boot "add ons" were available on the
market as PPE. There were choices and a number of types. Yaktrax was but one
example, and indeed those were used by Post Office employees and one local
authority. Such devices did help to control and reduce the risks of slipping
on ice and snow.
[18] This is a
summary of his evidence in chief and from it I accept that he had proper
detailed knowledge of the locus, the correct approach to compiling risk
assessments and was justified in his conclusion about the published papers and
PPE for footwear. The American study (6/14) is particularly useful.
[19] In his cross‑examination
the witness was asked again about his qualifications and the work of the Slip
Resistance Group of which he was a member. He confirmed his experience with
the general inspectorate of the Health and Safety Executive. He had experience
working for a health and safety consultancy firm. He had lectured on risk
assessments, reviewed them for other people and even compiled one himself for a
specific purpose.
[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 the pursuer'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] In my view
what he said in cross did not in any way depart from what he said in chief and
he was equally consistent in re‑examination. There, and under reference
to the grid (No. 7/19 for example), 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.
[22] Miss Rodger,
aged 34, was the only defenders' witness at the proof. She was the
defenders' business development manager for health and safety. She was well
qualified with a university degree in politics and history a number of
qualifications on health and safety; post graduate diploma on risk management
with many assignments and a portfolio. She was familiar with health and safety
and human behaviour legislation. I accept her as an expert, though without the
experience of Mr Greasley.
[23] She spoke
in detail to Nos. 7/4 and 7/5, the risk assessments and said No. 7/4 was
her document. I may have been under a misapprehension about 7/5 (the most
recent one) as I thought she had compiled it. However, she had not but
accepted, rightly, full responsibility for it. She said she had "shadowed" the
home carers on night and day shift to identify any potential hazards or injury
risks. She had to consider what measures and controls were in place; consider
what was in the Risk Matrix BS 8800 and take account of the severity of
harm. The trade unions were consulted. The compiling of the document was a
matter of judgment. Interestingly she said that the whole procedure could be
budget driven and there had to be a balance of risk and cost. She said that if
Yaktrax could guarantee that nobody would be injured the defenders would have
supplied them. Looking at sections A and D in the risk assessments
she said that A was intended to cover commuting whereas D was the visiting
where a car had to go to a house for example to put out a bin. When asked why
"inclement weather" was not in D in 7/5 she said omitting it was being "picky",
the defenders had 3,000 employees in homecare. The statistics showed five had
slipped and fallen. She had no information of harmful results apart from back
strains. I accept all this evidence as being the way she compiled the risk
assessments. Whether it is the correct way is another matter.
[24] She then
spoke of the induction training and how she trained the trainers. There were
"power point" slides and people were told about footwear. She did not tell the
court what they were told. She said under reference to No. 7/8 of process that
what was safe and adequate footwear was left to the individual. She accepted
that the defenders did not address the provision of PPE in relation to
footwear. Thereafter followed some evidence which I have excluded as will
appear later.
[25] She
concluded her evidence in chief by looking at the question of whether a phone
call should have been made to the line manager that night. She said that
depended on a number of factors, for example, was the visit low priority; could
a family member come or a neighbour, was it a matter of life and death. In
giving this answer the witness did not address the circumstances of
Mrs Craig. That is unfortunate since the pursuer clearly thought her
visit was very necessary. Whatever else, the answer from the defenders'
witness is destructive of any suggestion the pursuer was at fault not to
phone. Miss Rodger, who knew the locus, said that the car should
have been driven to the door.
[26] In cross‑examination,
and under reference to No. 7/19 and the 1999 Regulations, she agreed
that the defenders had to prevent or reduce the risk which there was of
slipping. She agreed that a slip could produce harmful injuries from fractures
to head injuries, and in the workplace of all accident 1/3 are slips. (She
looked at No. 7/6 of process.) Having heard that, counsel then
questioned her closely on 7/19 (BS 8800) given the concession that a fall
on ice was likely and the injury could be harmful. The witness refused to
agree that the risk could be classed as "substantial" which is what
BS 8800 seems to indicate. Her risk rating was "tolerable" as were almost
all the others. Her final position was that she had to take account of the
controls in place before (emphasis added) you can assess "substantial".
That was what the training was all about. She was adamant about her assessment
being correct. I accept what she believed but it does cause me concern.
[27] The
preventative measures are stated in the Induction Hazard Awareness booklet, as Instruction
on appropriate footwear. I was not told what "instruction" was given about
footwear. That matters when no consideration was given to PPE. Also it raises
a question of how the rating was reduced two boxes to "tolerable". There was
then an exchange which showed that BS 8800 had been superseded and
replaced. I have said elsewhere that I do not think that matters but the
witness ought to have known. There followed more questions on what was said or
discussed at training. Again, as I have said, it was all based on what "Would
have been said or discussed". I can accept this for what it is worth but
without any document or minute to show what the pursuer was told it is not of
great weight. Also Miss Rodger could not guarantee what was said on each
course. She attached importance to the apparent trade union approval of the
risk assessments. She strongly denied that 7/5 was "hopelessly inadequate" and
then said that five incidents a year with 3,000 employees made a slip
unlikely and with their controls made the rating "tolerable". Having said that
she knew the winter of 2010 was bad with the M8 shut. She said that on the
week of the accident she knew of no concern about the weather. In re‑examination
it appeared that No. 7/5 had not been compiled by Miss Rodgers. In
the context of measures taken by way of training something will later need to
be said about Nos. 7/6 and 7/8 of process called "Trainer Track" and
"Hazard Awareness" respectively. On that evidence before me these are the only
documents said to have been part of this pursuer's training.
[28] Martha Waugh,
aged 49, gave her evidence on commission. She drove her car that winter
night to Mrs Craig's home. No issues of credibility or reliability arise
on her evidence and in spite of the defenders' written submission I was never
addressed by either side on the evidence put in Papers Apart A and B
(pages 10 and 23) or the objections arising at the Commission. In
view of my decision below about the defenders' lack of pleading on the other
main objection I propose to ignore the Papers Apart. There are some points to
be taken from her evidence. It was never really suggested to her that she was
at fault in not driving to the house. That affects part of the case on
contributory negligence. She also said, without contradiction, that after the
pursuer fell on the path they both continued to the house and returned walking
on the grass. It is clear that she chose what to wear on her feet and on the
day was wearing trainers (pages 17/18). Finally there is no clear
evidence from her about any policy of phoning in if a problem was expected.
(See page 22 where objection was taken.) Her comments (page 24) on
the booklet Hazard Awareness (No. 7/8) do not help the defenders. It is
my impression that her answer is directed to ensuring she wore shoes to keep
dry and was not thinking about slipping.
[29] Mr Mackay
for the pursuer lodged a written submission which I refer to for its terms, and
in moving to find the defenders liable he made the following submissions in amplification.
[30] Counsel first
renewed his objection to certain passages in the evidence of Miss Rodger.
This was to the effect that a year after the accident to the pursuer, the
defenders tested Yaktrax due to a high increase in accidents. Two types were
used with different training teams; one with and one without studs. The
defenders decided not to use them even occasionally. Counsel said there was no
record for any such test and in any event the test was too late. There was no
written report of the results and the matter was not put to Mr Greasley.
I was invited to exclude the evidence or at least to give it no weight.
[31] Regulation
4(1) was in strict terms and there was no defence unless other means existed.
Here Personal Protection Equipment (PPE) meant "add ons" to footwear. That was
in the Directives. There was no issue about reasonable practicability. The
pursuer here did not know of the risk of snow on top of ice. PPE was to avoid
having to phone in and in any case there was no clear evidence that a phone
call would have any result to reduce what was an obvious risk. At common law,
with such a risk, even one accident was enough. With ice and snow even a few
accidents among 3000 employees should alert the defenders. In the present case
the weather had been unusually extreme for some time before the pursuer fell.
The defenders' employees would have to visit many places including tenements
and sanded pavements.
[32] Shoe add
ons had become widely available by 2010 and were being considered by other employers,
eg The Royal Mail. It was not clear that the compiler of the risk assessment
took account of this. The methodology was unclear and there were no statistics
mentioned. However, unless some controls were put in place then a slip was
likely. It was hard to reconcile the assessment of "tolerable" with the grid
in no 6/25 of process for example unless other factors were clearly added
in eg statistics and precautions. As it was, it produced only superficial
analysis. The conclusion on footwear was a "flat full covered shoe", would
prevent an indoor slip or an outdoor slip for PPE purposes. PPE had to be
something beyond normal footwear to reduce the risk.
[33] As to the
induction course there was no hard evidence as to what they were told and by
whom. Everything was predicated on a "would have been" basis.
[34] A large
number of studies showed how supplying the proper footwear reduced the risk.
In one American study the reduction was 90%. There was no evidence that the
defenders were aware of any of those studies. In the present case this
accident happened at least a week after the bad weather came. Every year
according to their own statistics carers were involved in accidents and the
duty is owed to every employee. The defenders could not allow a few each year
and do nothing.
[35] What the
pursuer desiderated was in the Council Directive and the Regulations. These
should be interpreted to level up safety (emphasis added). "Equally or
more effective" is what the defenders must address. How could they possibly
answer that question if they never thought about PPE. Regulation 4(3)
laid down very strict criteria all of which must apply and in 4(3)(d) the word
"practicable" related to effectiveness. A purposive construction to the Regulations
was needed so that European obligations would be fulfilled (Gloag &
Henderson (2012 edn) page 24) When looking at the decided cases, it had to
be remembered that no equipment was provided. Threlfall was a useful
case especially for what was said from paragraphs 35 to 44. Once
regulation 4 is engaged you must look at reg 6. There was no
evidence that the defenders looked at this at all or as to whether other means
were equally effective. They simply did not know. Threlfall was
approved in eg Chief Constable of Hampshire v Taylor (another
gloves case). The onus was on the employer to show working methods which
provided equal or more effective protection. The Henser‑leather case
was unusual and mention (at para 26) of members of the public was a "gloss"
and was unhelpful. It had never been followed in any case. Looking to apply
it to the present case the public could stay at home in safety on a snowy
night. The pursuer could not. In the case of Blair causation was an
issue. Regulation 3(2)(a) did not apply. There was civil liability for a
risk assessment and the relevant one here (No. 7/5 of process) was not
prepared by the defenders' witness. It was done under a superseded B.S. and
did not identify the risk or the proper measures. Each breach of duty under
the regulations stood alone. The pursuer desiderated an anti‑slip
attachment not necessarily Yaktrax.
[36] There was
also a breach of duty at common law. The risk was substantial. The precaution
was simple and inexpensive. Reasonable practicability did not come into
consideration.
[37] Mr Smith
who also lodged a written submission moved me to assoilzie the defenders or if
they were liable, to find the pursuer 60% to blame. He made no criticism of
the pursuer and accepted her as being a credible witness. He said nothing
about his witness on commission.
[38] The pursuer
had attended an induction course and had been involved in the debate and
discussion on safety there. She was given the appropriate safety leaflet. The
trainers at the course had been well taught by the highly qualified
Miss Rodger who had herself conducted some of the courses and knew the
law. There was no need to keep minutes of these sessions. It was agreed that
the defenders provided no PPE. It was conceded that the risk here was not de minimis.
[39] It could
not be said that the risk assessment was defective. This pursuer was doing
something people do every day ie walk on snow. Henser‑leather was
in point. Threlfall proceeded on a concession that the risk assessment
was defective and so the Regulations applied. This employer could expect
people to possess safe shoes for bad weather. What the pursuer was doing was
not beyond what the public in general were exposed to. It was an ordinary
snowy path in winter.
[40] Counsel
referred to various passages in Redgrave pages 383, 523, 525, 681. "Shoes"
he said were included in the definition of "ordinary working clothes". Not all
local authorities in Scotland supplied PPE in relation to shoes.
[41] He renewed
his objection to Mr Greasley saying that he was not an expert and had no
skills to assist the court. He referred in passing to Dickson on Evidence paras 397,
398, and to Davie v Magistrates of Edinburgh 1953 SC 34.
He also said I should allow the evidence about testing and it was not necessary
to plead this (McGowan v Watson 2007 SC 272).
[42] I gave
Mr Mackay a brief reply and he asked me to accept Mr Greasley as an
expert witness. He was specially qualified in the field of health and safety
at work and was able to speak to many things not within judicial knowledge or
in the public domain. I should not follow the case of HMA v Hainey.
[43] Let me deal
at once with the objection to Mr Greasley. Of consent he was allowed to
sit in court for the evidence of the pursuer although Mr Smith did say
that he proposed to challenge his status. The objection came when in chief he
was asked to look at No. 7/4 one of the risk assessments. I heard
argument and some authorities were placed before me viz Hainey v HMA,
Wilson v HMA and Dickson on Evidence (2nd edn)
para 397. At the time I allowed the evidence under reservation and at the
hearing the objection was renewed and Davie v Magistrates of
Edinburgh was referred to. The witness is aged 67. His many general
qualifications are listed in his two reports (No. 6/3 of process). He has
a law degree. 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. Before leaving this topic and the
objection, I want to look at some of the cases. None of these was fully
canvassed before me but it is right that I should indicate my opinion about
them. Two of the cases were from the criminal law and at the outset I have to
say that care has to be taken when seeking to use these in a civil context. In
crime, on appeal, the test is miscarriage of justice and, at first instance,
the jury is the arbiter of fact. That places the authorities in a very
different position from the one facing me. Davie is an important case
and sets out the rules governing expert witnesses and their place in an
inquiry. From it I take the following. There were concurring experts, and the
Lord Ordinary had rejected one of them. After careful analysis it was
held he was entitled to do so. Lord Strachan was also criticised (41) for
relying on passages in documents not spoken to by the witness. The
First Division emphasised that to be of value, an expert had to have the
proper authority, experience and qualifications and the evidence had to be
intelligible, convincing and tested to be an important factor along with all
the other evidence in the case. Wilson was a referred case from the
SCCRC; long after a conviction for murder. The test before the appeal court
was very different to what I have to consider. The issue was whether confession
to murder could be reliable. The (undoubted) expert had inter alia speculated,
relied on assumption and ignored material evidence and a motive for murder. In
a very clear lengthy opinion the court found that his opinion would not have
had any material effect on the jury's verdict.
[44] That brings
me to Hainey. While the rules about experts are the same (The
Ikarian Reefer [1993] 2 LLR 68) the task at trial is very
different. There is not the time and space of an avizandum in a proof, or a
criminal appeal to reflect at length on complex matters. The trial judge is
always under pressure in the cauldron of a trial and errors can be made.
Charging a jury is not nowadays an easy matter and I am very sympathetic to
even an experienced judge who finds himself under critical scrutiny long after
the trial and with the benefit of time. It is not always easy when dealing
with evidence to strike the right balance between saying too much or too little
to a jury. In Hainey two of the witnesses accepted they were not
experts in a particular field. I do not regard the case as in point here.
[45] There
remains one other outstanding objection to evidence and it arose in the
evidence of Miss Rodger in chief when she gave evidence about tests
conducted on PPE after the accident. It is clear that there is no record at
all for this evidence led under reservation. It came very late in the case and
it was not specific. There was no report or any other paperwork. Most
importantly it was never put to Mr Greasley for his comments. I accept
that the pleadings in this kind of case are in the simplified form. However,
if the defenders had thought this matter to be important, a short and simple
averment would have at least given fair notice. They could have sought to amend
during the proof but did not do so. I propose now to sustain the objection and
ignore the evidence. In any event it may not matter in view of my findings
that at the time the defenders never addressed the issue of any anti‑slip
attachments. McGowan v Watson was referred to but I do not think
that the case is in point, and if anything it is against the defenders
argument. It stressed the need for "fair notice" and that has not been given
here in a case where PPE has been the issue in the main.
[46] I can state
my findings on the evidence briefly. The pursuer and Martha Waugh were
accepted by both sides and I need say little about them. They both wore
different footwear. What the pursuer wore plainly did not save her even when
she, as she said, took care in the conditions. It is impossible to be critical
of where this car was parked. It is also of some importance that both ladies
were on an urgent and important duty to an elderly sick lady. It is my clear
impression that neither of them would give up on Mrs Craig.
[47] Mr Greasley
I accept in the entirety. His reports Nos. 6/3 and 6/22 are careful and in
measured terms. I have held him to be a suitably qualified expert. The
reports are really uncontradicted and his evidence in court supported them and
is consistent. I have narrated it earlier. The following emerges. He had
been to the locus. The condition required some form of shoe "add on".
Yaktrax was but one model available on the market at the time (it should be
noted that the pursuer'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 4.9
of 6/3) and he was clear in his evidence and Reports that Regulation 4 was also
breached (see eg. 3.11 and 3.12 in 6/22). 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.
[49] I do not
wish it to be thought that I have dismissed Miss Rodger. Clearly she
thought that the defenders had performed their common law and statutory
duties. It may be that the defenders could have led more evidence about
training. What I found lacking in her evidence was a clear explanation of why
she reduced the risk even on the methodology she used (I have already voiced my
criticism of that). The direction of the law is to level safety upwards and in
my opinion, the failure of the defenders' witness to address this by
considering PPE has resulted in the breach of duty in all areas.
[50] In now
setting out the relevant Regulations it has to be noted that these are all
passed to implement European Directives on safety; and are in strict terms.
Breach of either will result in liability.
[51] Let me now
look at them and some of the cases. The Personal Protection Equipment at Work Regulation 1992
(No. 2966) provides inter alia:
"4...(1) Every employer shall ensure
that suitable personal protection 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)...personal
protection equipment shall not be suitable unless-
(a) it is appropriate for the
risk or risks involved, the conditions at the place where exposure to the risk
may occur...
(d) so far as is practicable,
it is effective to prevent - or adequately control the risk or risks involved
without increasingly overall risk...
6...(1) Before choosing a personal
protection equipment which by virtue of regulation 4 he is required to
ensure is provided, an employer...shall ensure that an assessment is made to
determine whether the personal protection equipment he intends will be provided
is suitable..."
(There are also
provisions to cover assessment of other means, comparisons and revisions)
The
Management of Health Safety at Work Regulations 1999 (No 3242) provide inter alia
"3...(1) 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..."
(There are also
provisions to review an assessment.)
"4...Where an employer implements any
preventative and protective measures he shall do so on the basis of the
principles specified in Schedule 1 to the Regulations
Schedule 1
(a) avoiding risks
(b) evaluating the risks which
cannot be avoided
(c) evaluating the risk at
source"
The relevant Council
Directive of 30 November 1989 provides inter alia
"Article 2...
1. For the purposes of the
Directive, personal protective equipment shall mean 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 the objective...
Article 3...
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
organisation...
Article 4
1. ... All personal protective
equipment must:
(a) be
appropriate for the risks involved, without itself leading to any increased
risk..."
[52] In Chief
Constable of Hampshire v Taylor [2013] EWCA Civ 496 police
officers were searching a house where cannabis had been produced. Because of
the smell a WPC pushed at a window to open it and cut her thumb. She had been
wearing latex gloves against skin irritation from the plants. The county court
judge found for the plaintiff under the regulations holding a failure to
provide thick gloves. (Here the risk was of sharp edges a low but not de minimis
risk) (§14).
[53] In Threlfall
v Hull City Council [2010] EWCA Civ 1147 the plaintiff cut his hand
when clearing debris from a council garden. One issue was whether he had been
provided with suitable protective gloves. The gloves were not cut resistant
and were designed for minimal risks only. His claim failed twice before the
matter went to the Court of Appeal.
[54] The court
said that every risk assessment should be "logically anterior" to the taking of
safety precautions (§35). The general assessment made was inadequate, the risk
was not de minimis and the gloves provided plainly not effective.
[55] It is true
that this case did proceed in part on a concession but on the facts, as I read
them, one which could not have been withheld. It also should be observed that
the employers did at least provide something.
[56] Henser‑leather
was a most unusual case on its facts. The plaintiff worked as a security
guard business link driver collecting cash from commercial outlets for the
defendants. At any one time he might have £4 million in his marked van.
He had a smoke box, helmet and visor but no body armour. When collecting money
from a petrol station in Leeds he was confronted by a robber who shot him with
a hand gun. The employees had done no formal risk assessment though suitable
armour was available. The case at common law failed as the plaintiff would not
have worn it. A case under the 1992 Regulations was then considered but
rejected on the ground that the judge held they did not apply to body armour.
When the case went on appeal, the court unanimously agreed that the controls in
place were not adequate for the risk to this kind of driver. Kennedy LJ
described the risk as "...well above the risk to other members of the public
going about their daily tasks...". They found a clear breach of
regulations 4 read along with 6 and 10.
[57] The
reference to "members of the public" is curious, since ex hypothesi they
are not employed and the plaintiff was. Blair was a case where the
employer had considered PPE in the realm of what was the proper boot for police
officers on motorcycles who were undergoing advanced training. In finding
against the chief constable the Court of Appeal said (paragraph 12) that
the county court judge had not asked himself the correct question posed by the
Regulations. It was also emphasised that the onus was on the employer to
demonstrate compliance with the requirements.
[58] It is now
necessary to deal with the defender's risk assessments Nos. 7/4 and 7/5 of
process and look at these in detail. They are general assessments and clearly
the defenders are aware of PPE in some areas (see last page of both risk assessments).
The latter was the one in force at the time of the accident. Miss Rodger was
responsible for No. 7/4 and until late in the proof it was thought that
she produced 7/5 also. I had assumed that and when I asked her about it she
said it was not her document but had been drawn up by someone called Susan
McDonald in July 2010. Something was made of this at the end of the day but
I do not think it greatly mattered since the defenders' witness knew of, and relied
on it. Something was also made of the fact that 7/5 was compiled on a BS 8800
(No. 7/19) which had been superseded. Again I do not think that may really matter
as its successor shows the same grid on the basis of which the risk is
assessed. (See 6/25).
[59] What is curious
is the way the risk is assessed in the general assessment. One part of it
relates to slipping. The defenders' witness agreed in cross that a fall on the
ice was "likely" and that any resultant injury could be "harmful" eg a head
injury. Reading down and across the grid, only that produces something called
a "substantial risk", not one that is "moderate" or "tolerable". When one
looks at the action needed box there is a stark difference between what should
be done for "substantial" and what little for "tolerable". Cost implications
are mentioned.
[60] In 7/5
the risk is classed as "tolerable". This conclusion was explained by the
witness saying that she took account of existing precautions and statistics of
numbers of accidents.
[61] The
relevant pages are 7 on No. 7/4 and 8 on 7/5. In each it is
section D of travelling to and from work locations. The wording is almost
identical and I quote from 7/4 "Slips/trips/falls - uneven pavements -
inclement weather - slippery surfaces - obstacles - poorly light (sic)
area". No. 7/4 is Miss Rodger's document. No. 7/5 is not, and
importantly, in section D the words "inclement weather" are omitted.
There was no very clear explanation for this. In both the risk rating (which
refers to BS 8800) is "tolerable" (emphasis added). That document is
No. 7/19 and in evidence it is clear that it is now out of date (see 6/24
and 6/25). As I have already said I am not persuaded that anything turns on
this as such because the matrix or rating scale is the same. In both risk
assessments there is no mention of personal protective equipment. The wording
for preventative and protective measures is almost the same in both and I quote
"Induction Programme. Hazard Awareness booklet. Instructions on appropriate
footwear." The defenders' witness gave evidence that she knew there was slip
risk which could produce a variety of injuries from fractures to head injuries
and that such is harmful. In his closing speech counsel conceded (rightly in
my view) that the risk here was not de minimis. Miss Rodger also
spoke about induction training but no trainer of the pursuer gave evidence.
She also claimed that the trade unions had accepted the risk assessments but I
have no direct evidence about this.
[62] In my
opinion proper approach to these or any risk assessments is to be found in
decided authority which has been well known since 2008. In Allison v London
Underground the Court of Appeal were considering a risk assessment in an
issue of a train driver who developed tenosynovitis from holding a traction
brake controller. The trial judge had not made any finding as to whether the
risk assessment has been "sufficient and suitable" (see paras 18, 21 and
22). At para 59 Smith LJ said this:
"...the right approach for the court to
take in deciding whether the claimant's training had been adequate for health
and safety purposes, was to examine whether the employer's risk assessment had
been sufficient and suitable..."
[63] The matter
was put even more clearly by the same judge in Threlfall with judgment
given in October 2010. Inter alia she said this:
"...35. ....the modern requirement is
that (the employer) should take positive thought for the risks arising from his
operations. Such an assessment is ...'logically anterior' to the taking of
safety precautions... 36. In the present case the employer carried out a
general assessment ...(which) failed to recognise that there was a risk ...if (it)
had been properly carried out...it would...have recognised the need to consider the
suitability of the protective gloves it provided... 44. ...if a residual risk
exists, the regulation is engaged, provided that the risk of occurrence is not
so slight as to be de minimis or the nature of the harm so trivial that
it should properly be ignored..."
[64] This
guidance was available to employers before the accident to the pursuer and is
in any event a common sense approach to the regulations.
[65] There are a
number of other important matters to notice about the defenders' risk
assessments. No. 7/4 is signed No. 7/5 is not. That may not
matter. However, it is clear, as I have said, that the defenders were alive to
the need to consider PPE in the context of a document covering home care services.
(See for example page 11 of 7/4 covering earlier section of work.)
What each assessment does not explain is how the control measures of, for
example, training allows the risk level to be reduced. For section 4D
which covers the facts of this case there are said to be training records
(page 11 of 7/5 process) and where they are kept. I never saw
these. The particular training was not evaluated and I am unclear of the
significance of this. When one looks at Nos. 7/6 and 7/8 the matter becomes worse
in my opinion.
[66] I am
prepared to accept that the pursuer may have seen both of these documents. No.
7/6 is called "Trainer Track". On page 4 I have excerpted the following:
"Health and Safety Slip, Trip Card
·
1/3
of all accidents are slips trips/falls ...
·
Typical
issue ... ice in winter ...
·
Importance
of meaning appropriate footwear (Flat full covered shoe)"
[67] In my view
that is not adequate training or instruction. It does not say what is
"appropriate footwear" and the particular reference to a shoe seems to me more
to cover wet weather. That seems to me to be confirmed by Martha Waugh's
answer in her evidence at page 24E. Nobody said how footwear was checked or
assessed. The pursuer and Martha were wearing different footwear.
[68] No. 7/8 is
entitled "Hazard Awareness". Interestingly on the last page there is a general
mention of PPE. In the section on Slips, Trips and Falls the following is
written:
"Ice/snow - when walking to and from
work locations extra care should be taken in inclement weather, and staff
should ensure that safe adequate footwear is worn at all times..."
[69] Again,
however fine these words may be, the proof did not disclose how the defenders
saw to it that the correct footwear was in use. On the evidence they certainly
did not provide any and it was just left to the individual employee.
[70] I am critical
of both these documents which are part of the induction programme and are to be
read along with the risk assessments. Maybe more was said about these
documents at training but I did not hear it. In view of my acceptance of
Mr Greasley 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 (see Threlfall passage quoted)
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 defenders
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 defenders are in breach of both the
Regulations relied on by the pursuer.
[72] For the
same reasons I find the defenders 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.
[73] That only
leaves contributory negligence, what is to be made of the case against the
pursuer. It is found on record in this way. There is an allegation
(page 8) that the car in which she was a passenger could have been parked
closer to Mrs Craig's home. It is not said that the pursuer should have exhorted
the driver Martha Waugh to do that or what she should have done if Martha
refused. There is then an averment about the lighting on the pathway which is
said to be good. The particular failures are then said to be failure to keep a
proper lookout and watch where she placed her feet; failure to wear suitable footwear
and failure to report the weather and underfoot conditions.
[74] The pursuer
said that Martha did not want to drive round to the house and parked beside the
path. There is no other evidence on the point and in my opinion that reflects
no fault on the pursuer. At some point they would both have to get out of the
car. The defenders are in any event liable for the driver's actions. I am
prepared to accept that the weight of the evidence was that the path was
properly lit. There is no evidence that it was not. However, the pursuer was
never asked whether she failed to watch where she was going or how she placed
her feet. She did give evidence about her footwear and produced (No 6/8 of
process) the boots she wore. These were flat and ridged but plainly did not
prevent her fall. I have held elsewhere that the defenders did not consider at
all what was proper footwear; or PPE for footwear. The pursuer cannot be
criticised for wearing what she thought was best for the conditions. That
leaves a failure to report. The pursuer agreed that she could have made a
phone call on a mobile to the coordinator. She felt, however, she would simply
have been told to get on with the job and she said that, in conscience, she
could not have left the ill person. I hold it unlikely that she would have
been told to abandon the job. In any event it was clearly proved that the
weather had been adverse for weeks and the defenders were well aware of that.
The pursuer's understanding was that the staff had to do the work as soon as
possible then get home. There is no clear evidence that making any phone call
would have prevented this accident.
[75] The issue
of contributory negligence was not put to Mr Greasley. Miss Rodger
did give some evidence on the point. She said she knew the locus but was not
there that night. She said the driver should have driven to the door and that
the line manager should have been contacted. He or she would have made a
judgement. It might have made the carers late and it might depend on why they
were going there (e.g. hoovering would not be a high priority) (in fact the
visit was pressing and was to involve a full body wash, change of incontinence
pads, adjust her position and check medication). None of that evidence
persuades me that the pursuer would have been told to abandon. No evidence was
given by any line manager.
[76] Accordingly
on the evidence no case of contributory negligence is shown at common law. The
action, however, also involves health and safety legislation, when liability is
strict. There was no clear system of reporting and no consideration of proper
footwear. The pursuer was on an errand of mercy and in my view it cannot be
said that she embarked on a risky course of action. I do not find her at all
to blame, and the suggestion of 60% in my view should not have been made and
was unstateable.
[77] Before
leaving the case I should add that I have some sympathy with the defenders.
They have many employees and a range of activities. They will not have an
unlimited budget. However, everyone has to live and work through winters. It
seems as if they become increasingly severe. In Scotland ice and snow or frost
are not unusual although 2010 was exceptionally bad. However, the modern
legislation caters for all that. Safety is to be levelled upwards. There are,
even in this strict legislation, ways for defenders to cover liability and that
is to have a proper risk assessment and to properly consider other means which
are equally or more effective. In this case neither of those things was done.
It is the "sea-change from the old ... common law ..." (Longmore LJ in Blair
at para 14).
[78] The
interlocutor will reflect that I find the defenders liable under both
Regulations and at common law, and further that there is no finding of
contributory negligence against the pursuer.
