A Slippery Slope? Supreme Court Decision In Kennedy v Cordia

The case

Tracey Kennedy v Cordia (Services) LLP [2016] UKSC 6

The issue

When Ms Kennedy slipped on snow and ice, her employers, Cordia (Services) LLP, were held liable at a hearing before a Lord Ordinary in the Court of Session.

Cordia appealed successfully, the Extra Division of the Court of Session holding that the health and safety expert's evidence was inadmissible, and that in any event there was no breach of the regulations or common law.

A further appeal was taken to the Supreme Court, with Ms Kennedy asking the court to overturn the finding of the Extra Division.

The facts

The winter of 2010 in Scotland was severe. On 18 December 2010, Ms Kennedy was visiting a terminally-ill elderly housebound person during the course of her employment with Cordia. To reach the person's house, she had to navigate a path which was covered with snow and ice. As she did so, she slipped and fractured her wrist.

Before the Lord Ordinary, she led evidence from a "health and safety expert." In evidence, he expressed the opinion that Cordia had not adequately assessed the risk, nor had they provided the correct work equipment - in this case, a clip-on attachment for shoes called "Yaktrax".

The expert stated that this meant that the defenders were in breach of Regulation 3 of the Management of Health & Safety at Work Regulations 1999 (failure to carry out suitable risk assessments), and Regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992 (requiring employers to provide suitable equipment to their employees to avoid risks to their health and safety, and ensure the equipment is properly used).

Cordia had objected to the expert's evidence, arguing it was inadmissible as the expert had no relevant special skill nor specialised learning.

The decision

The Supreme Court unanimously allowed the appeal, overturning the Extra Division's findings.

The Extra Division had expressed concern at the apparent common practice of producing "expert" reports in personal injury actions that do not actually display any expert quality.

Lord Clarke put it succinctly: "If the opinion of a witness is not based on the principles of some recognised branch of knowledge in which he has particular experience and expertise, it is useless 'expert' evidence and should be held to be inadmissible."

"Health and safety" experts such as the one employed by Ms Kennedy in this case failed on both counts. Not only was "health and safety" not a recognised body of...