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Kennedy cordia supreme court decision settled.
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interesting read, maybe setting a dangerous precedent. be interested to see what affect this has on future cases.
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Steve & "Psycho", thanks for this--very interesting precedent for workers????
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Steve I do not see any need here to look at tyres but it will certainly think it affects those employers sending persons out onto the streets in all weathers such as delivery persons, mail, district nurses etc etc
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Wow... the law really is an ass
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The thing is you see, it would never happen anywhere near the Clapham Omnibus, because it "never freezes", "nor does it snow" in Clapham, so, the hazard is incomprehensible by those "in power" as they never have to circumvent such hazards.
One has to understand that we do not live in a Country that promotes equality.
However, if this scenario was common, then either the employees need to be subject to Darwinian selection and get all they deserve, or the Employer should have done something.
It seems that the employees could not comprehend the hazards they were potentially subjected to, so that they could take their own precautions, perhaps because they were from Clapham?
These situations boil my blood, they really do, the employee is a muppet of the highest order as they cannot look after themselves, and the employer is stupid enough to let this happen in the past, and do NOTHING about it.
There is something to be done from BOTH sides here.
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paul.skyrme wrote:
These situations boil my blood, they really do, the employee is a muppet of the highest order as they cannot look after themselves, and the employer is stupid enough to let this happen in the past, and do NOTHING about it.
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Boils my blood also, but for different reasons. Living in Scotland and involved in social care, people slip on ice and break bones all the time in this part of the country, this happens. No fault of the employees - and no fault of the employer, its ICE for god's sake. The only thing that is wrong here is the legal system and the judgments made by these people. And maybe also the legislation itself contributes to this.
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Billy Connolly starred in a little film in 2001 "The man who sued god".
Given UK courts sit under the motto "Dieu et moin droit" (God and my right) - as ice is neither of the employee nor the employers making and insurers typically exclude "acts of god" shouldn't the church(es) have been on the receiving end of this ruling?
Sorry forgot the conflict of interest between the Crown as judiciary whilst also being head of the Church of England.
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Billy Connolly starred in a little film in 2001 "The man who sued god".
Given UK courts sit under the motto "Dieu et moin droit" (God and my right) - as ice is neither of the employee nor the employers making and insurers typically exclude "acts of god" shouldn't the church(es) have been on the receiving end of this ruling?
Sorry forgot the conflict of interest between the Crown as judiciary whilst also being head of the Church of England.
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Psycho wrote:https://www.supremecourt.uk/cases/docs/uksc-2014-0247-judgment.pdf
Interesting judgement report – it also questions the quality of the risk assessment.
This is the type of thikng that gets me down, how was the employer at fault, this was not created soley by thye work being performed. The person must have walked in snow and ice before but now it's the employers fault. This ruling is way off the mark and thye case should never of been allowed. What happened to the councils role in this by not keeping tghe streets free from ice.
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The implications are staggering.
I live in the NW of England which is well-known for its wet weather. Should employers therefore provide waterproof outer clothing (to protect their own clothes from becoming damaged) to every employee who ever steps out of shelter in the course of their work? My wife just asked whether her new hairdo being ruined by the wind is now likely to be fixed at her employer's cost.
And besides winter tyres, snow chains are a proven effective solution to driving in icy/snowy conditions. Perhaps time to buy shares in a snow chain manufacturer.
And furthermore, given this winter's flooding, should company boats be issued and do BMW or Audi do fleet deals?
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This judgment is a classic case of people who reside in a Ivory Tower. The implications are serious and onerous for councils and other welfare providers. As noted in other posts, the prevailing weather can change quite dramatically where some areas in the UK are more susceptible to precipitation than others.
I do hope the judgment is challenged. Whatever happened to 'personal responsibility'? I often tell people when they talk about getting sued for all and sundry that the courts are not without some common sense...might have to revisit that.
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I think we are failing to recognise that we have been too busily trying to make afarp a method of avoiding natural hazards. The court is absolutely right that there is a cheap low cost piece of equipment available that could reduce such accidents very drastically so why should it be unreasonable for employers to do so. As for winter tyres and snow chains I guess too a case can be made where the weather conditions suggest the need to be likely - Watch the Ice Road Truckers for some thoughts on this. Driver training is also perhaps as essential. I used to live in the Peak District and was always amazed at drivers revving like mad to climb hills in snow and ice conditions only to end up in the ditch, hedge or dyke!!!
We do perhaps need to think a bit more closely about what can be done especially when we are exposing persons to the forces of nature and the natural environment.
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Bob, do you not think that employers have enough duties to comply with as it is? Of course, there is always more that can be done...there always is.
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"Miss Kennedy could not re-arrange the visit, was not provided with any footwear by her employer, nor was she given guidance on what she should wear in wintry conditions to avoid her slipping. The footpath had not been gritted and was described as being like a sheet of glass below a layer of snow. Her employer’s own expert described the risk of an employee slipping in these conditions as a “dead cert”
Obviously the employer needs a new expert.
I think any new moves have to be made to the European court of justice now...
Anyway, get over it!
Pretty soon the tory.gov will remove all h&s legislation...and you'll be out of jobs!!
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Whilst I agree that this could set a dangerous precedent and employees must take responsibility, there are specifics in this case that are worth noting. From various paragraphs in the judgement.
5. There were on average 4 such accidents each year, and had been 16 in the year of this case.
6. In the risk assessment, the likelihood of a 'harmful' accident was 'highly unlikely' - not really consistent with the number of accidents occurring
6. Risk was identified as 'tolerable' which was interpreted as the lowest level that was reasonably practicable so no further control were required - tolerable and ALARP are not usually considered to be the same.
8. Choice of footwear was left to the individual - risk assessment said they should have been given advice.
14. Risk assessment for slips and falls did not include the impact of inclement weather
It is pretty clear to me that the risk assessment was inadequate. Especially given that in this case the injured party did not have any choice about going to her patients house because it was a medical necessity. This is completely different to a delivery driver (for example) where a decision can be made to say it is too dangerous to do the job.
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JohnMurray wrote:"Miss Kennedy could not re-arrange the visit, was not provided with any footwear by her employer, nor was she given guidance on what she should wear in wintry conditions to avoid her slipping. The footpath had not been gritted and was described as being like a sheet of glass below a layer of snow. Her employer’s own expert described the risk of an employee slipping in these conditions as a “dead cert”
Obviously the employer needs a new expert.
I think any new moves have to be made to the European court of justice now...
Anyway, get over it!
Pretty soon the tory.gov will remove all h&s legislation...and you'll be out of jobs!! Who made you god!, we have the right to have an opinion on here we pay are fee's. I think it puts not H&S people in an awkward place but every business were thier employees go out. I wonder if she makes it to go out socilising, shopping etc without falling over.
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Health and Safety At Work - she was at work, she was at risk from slipping, this was identified by the employer and the employer did nothing about it apart from one rather inadequate risk assessment.
If four individuals had got their hands caught in a lathe on four separate occasions and the risk assessment had then said that guarding was unnecessary and the risk was "tolerable" what outcry would there be? So what is the difference?
I think the right decision was made. To provide the staff with Yaktrak ice grips would have cost £10.99 a pair - probably about an hour's sick pay, suppose she had fallen and broken her back - would it still be OTT then?
If you ask people to drive in snow and ice as part of their job then you provide snow chains - it's a no brainer - if you ask people to walk on snow and ice as part of their job then you provide the wherewithal to keep them safe.
This is our responsibility and incumbent upon us under the PPE Regulations so whatever you think of the ruling, it fits with the requirements of this law. We cannot pick and choose which bits we comply with because they suit our mood at the time.
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I have seen many RAs which are inadequate for one reason or another, so nothing new there. Clearly this judgment is a borderline case given the different opinions on this forum. Yes, I do accept the employer has some responsibility for their staff and for advice about going out in inclement weather. However as a rule most practitioners are struggling to keep pace with the plethora of h&s legislation.
What I struggle with are basic life skills, which I don't think should be part of the employer's remit - nothing is without some risk. Ye Gods, we do not want to go down the road of having to do RAs for people walking up and down stairs, making cups of coffee, using Tippex, etc.
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This typifies the core problem with Health and Safety. There is ALWAYS more that can be done. The problem is there is always someone who will say that it should be done. SFARP is in the eye of the beholder who has 20:20 hindsight (with what I like to call their ‘Retrospectroscope’).
So now we have a situation where Yaktracks are provided at a minimal cost of £10.99. But what about training in how to put them on.
That’s a day’s course (all courses are a whole day).
Then there’s the (constant) supervision to make sure people put them on. This is something ‘more’ that could have been done when someone forgets or can’t be bothered to put them on.
So should we now go further and have instructions about negotiating probably THE most dangerous thing anyone does just about every day at work – namely stairs. The day’s course, the supervision all come under the category of ‘something more that could be done’. And a court somewhere will decide it is reasonably practicable.
As I first said when introduced to this Health and Safety mine field
‘It’s impossible to control what people do’
And anyone who thinks you can does not live in the real world – take out insurance and let them pay up when this nonsense happens.
Rant over…
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Surely none of us can be surprised nowadays - especially when H&S Practitioners are concerned about balloons.
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Roundtuit wrote:And Fiat-Chrysler are now subject of a class action because the automatic gear box in the Jeep doesn't click to let the driver know they have engaged forward gear (normally you would expect sound prompts to be used by the visually impaired).
Is it time for a separate forum for the mire of non H&S matters that get posted perhaps bannered " I don't believe it" (thoughts Victor?) Now there is a thought - Visually Impaired Drivers!!! Seriously though this does rank with the mandatory giving of cup holders by most drive thru macdonalds
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RayRapp wrote:I have seen many RAs which are inadequate for one reason or another, so nothing new there. Clearly this judgment is a borderline case given the different opinions on this forum. Yes, I do accept the employer has some responsibility for their staff and for advice about going out in inclement weather. However as a rule most practitioners are struggling to keep pace with the plethora of h&s legislation.
What I struggle with are basic life skills, which I don't think should be part of the employer's remit - nothing is without some risk. Ye Gods, we do not want to go down the road of having to do RAs for people walking up and down stairs, making cups of coffee, using Tippex, etc. When I worked in a prison we had a memebre of staff fall on the stairs and her solitor asked for the training records for the task of walking up and down stairs. He wasn't impressed when I told him to ask her mum and dad because that's he teaches you that. We had numours claims for people scolding themselves making tea, I always argued if you go to get a hot drink what do you expect to come out of the urn or kettle. I even made signs to put on the kkettle that read ' could contain hot water, definately will once boiled' they stopped once they realised how stupid they were. Anyway have 'cod' for my dinner hope it conytains fish.
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I think this was the winter where my pavement was untreated between Christmas and the New Year (with the exception of our stretch). Twas like a complete ice rink (except that it's also on a slope), but I had my Finnish heel grips, so slipped less than our border collie. Back to school came and all the pavements were treated the same day. Think the local headmistress probably explained that otherwise she was closing the school.
When we briefly had snow this winter, the salt went down not only on our external stairs and pavement but that of our next door neighbour, partly to provide safer access to her carers.
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This being the same Supreme Court that ruled councils did not have a mandatory duty to grit roads in relation to a fatal car crash
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This being the same Supreme Court that ruled councils did not have a mandatory duty to grit roads in relation to a fatal car crash
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"I wonder if she makes it to go out socilising, shopping etc without falling over"
Probably. But that would not be working.
As I said: Get over it!
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OK, so we now have to assess the risk of walking on the public footpath, and take account of the findings, providing PPE if the risk cannot be controlled by other means...
I'm going to stick my neck out and suggest the risk can be controlled by provision of information and instruction. When its cold it gets icy, and the pavements get slippery. That's the information part out of the way. Now, where can I source a suitably competent trainer to teach employees how to select shoes, and another to train them how to walk? The courses should preferably be certificated, and accredited by a professional organisation, cos otherwise my clients will not accept my employees are competent to walk into their site.
This beyond a joke, and I am seriously considering hanging up my tweed jacket and clipboards for good.
The appeal court judgement contained a number of eminently quotable opinions. The supreme court judgement is risible.
All IMHO of course..
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JohnMurray wrote:"I wonder if she makes it to go out socilising, shopping etc without falling over"
Probably. But that would not be working.
As I said: Get over it! Well as a solitor you would be happy!
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I must say that I completely agree with the findings of the Supreme Court, so I guess I'm in the minority [again]
The Supreme court took a big axe to the Inner House-Extra Division and rightly so
Comments like 'Health and safety was not an area of expertise, since it was not a recognised body of science or experience' agreed by the other judges. That'll surprise Diploma students! And everyone else too. There were numerous other comments to the effect that it is unreasonable to suggest that the employer should provide PPE/crampon style/etc as she was just like a member of the public-
The many statements comprehensively dismantled by the Supreme Court include the old chestnut about what constitutes accidents at work [often figures on the forums]. The critical issue was that Miss Kennedy had no choice in going out in such hazardous conditions-not social at all.
Another interesting difference of opinion was that the Lord Ordinary did find that the direction of travel for the law is upwards [ie responsiblity]-to senior management, of course, as it should be. [Old article 118a]
So, good on her, and the expert witness, who came through it well.
It's interesting that it discarded 'Caparo' also floated by the Extra Division too and others.
Au revoir
Mike
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MikeKelly wrote:I must say that I completely agree with the findings of the Supreme Court, so I guess I'm in the minority [again]
The Supreme court took a big axe to the Inner House-Extra Division and rightly so
Comments like 'Health and safety was not an area of expertise, since it was not a recognised body of science or experience' agreed by the other judges. That'll surprise Diploma students! And everyone else too. There were numerous other comments to the effect that it is unreasonable to suggest that the employer should provide PPE/crampon style/etc as she was just like a member of the public-
The many statements comprehensively dismantled by the Supreme Court include the old chestnut about what constitutes accidents at work [often figures on the forums]. The critical issue was that Miss Kennedy had no choice in going out in such hazardous conditions-not social at all.
Another interesting difference of opinion was that the Lord Ordinary did find that the direction of travel for the law is upwards [ie responsiblity]-to senior management, of course, as it should be. [Old article 118a]
So, good on her, and the expert witness, who came through it well.
It's interesting that it discarded 'Caparo' also floated by the Extra Division too and others.
Au revoir
Mike I think my point was that this hazard was not soley made by the company. walking in ice and snow is an everyday task sometimes throughout winter, like walking up and down stairs, making tea etc. I will take the point that she had no choice but to go out and give support to the person.
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JohnMurray wrote:Pretty soon the tory.gov will remove all h&s legislation...and you'll be out of jobs!! Until such time as a senior Tory's own kin is either killed or seriously injured through an accident at work at which time it will be re introduced. So thinking that through I doubt very much all H&S legislation will be removed. Let's hope so. Regards
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RayRapp wrote:Bob, do you not think that employers have enough duties to comply with as it is? Of course, there is always more that can be done...there always is. That's a good point but then it's for the employers to put in place adequate resources to comply with the duties placed upon them. I think where it gets difficult is when they try to do it at the lowest cost and the H&S Advisor is overloaded. Many employers could afford to do more than they do and often it's just a choice. Often it's easy for the employer, the difficulty is normally for the Advisor, IMHO. Regards
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This was a foreseeable event and the employer's risk assessment wasn't suitable and sufficient.
The risk controls were inadequate.
The employee was at work at the time of the accident.
The employee is obligated to highlight weaknesses in the employers H&S arrangements.
The employee, is an adult and has probably been subjected to inclement weather, living in Scotland many times before.
The employee knew the weather and conditions were treacherous but, did she continue regardless without consulting her employer about the risks.
I'd have thought contributory negligence would be more appropriate and the award partial by percentage: say 60% / 40%.
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"I wonder if she makes it to go out socilising, shopping etc without falling over"
Yes
But the reason given was quite clear which differentiated her between a worker and any member of the public:
"Unlike an ordinary member of the public, she could not choose where or when she went. She could not keep to roads and pavements which had been cleared or treated. She could not decide to avoid the untreated footpath leading to Mrs Craig’s door. Unlike an ordinary member of the public, she was obliged to act in accordance with the instructions given to her by her employer".
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A risk assessment (it appears) is only inadequate when there is a claim made for an injury.
When has SFARP ceased to have relevance?
I only hope the Royal Mail and others provide their staff with mud guards on their feet, snow shoes in winter, Police brand sunglasses for the summer etc.
I would like to see these geriatric judges who, with the passage of time become ensconced in their mansions but require care and dependency on others be told "sorry my Lud but I cant see you today as it is icy underfoot and I might slip."
No wonder H&S is a shambles with laws that permit judgement such as this.
Only a few more years to do then I'll join Victor looking in at this crazy so called profession.
Jon
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What happened to the councils role in this by not keeping the streets free from ice.
Cordia the defendants were part of Glasgow City Council - so they couldn't use this is their defence.
This ruling has huge H&S implication for all employees that walk on public paving's in icy conditions as part of their work. The main failing here was the fact Cordia had identified the ice as being a risk and did not manage the risk.
So..... lets not conduct risk assessments at all, then they cannot be used against us when something goes wrong. Just bump up the EL insurance and get rid of all the H&S bods, and let the judges be responsible for the precedent's they set.
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The ruling seems entirely sound to me. An important point already raised here is that everyday risks such as ice are avoidable in your own time but not if you are working and have to be at a certain place at a certain time; so Cordia had a duty to protect against them SFARP. Given that other organisations were issuing Yaktrax type anti-slip devices to staff and their existence is common knowledge, the logic that they should be used seems perfectly sound to me. Should we not bother with hi-viz jackets for roadside workers simply because their organisations did not create the traffic? I'm sure no-one here would suggest that but the logic is the same.
Put the legal points to one side for a moment folks and think about the financial and moral aspects. Losing skilled care workers carrying out critical jobs for long periods to something as well known as icy conditions when a simple, easily available and practical PPE solution exists is simply bad H&S management IMHO.
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So..... lets not conduct risk assessments at all, then they cannot be used against us Well no, they actually left the risk of slipping out of their 2010 / latest risk assessment. This is why they were prosecuted: "Had such an assessment been made it should have considered the possibility of individual protective measures (PPE) to reduce the risk of slipping and falling on snow and ice Had that possibility been considered, a number of devices were available which would have been suitable to reduce the risk. Since none was provided, it followed that there was a breach of regulation 4(1) of the PPE Regulations" There was a risk, which could not be avoided, many people previously hurt, the residual risk was not ALARP (as they described), PPE may have been able to further reduce that risk (but the risk and the possibility of PPE was not considered in the RA), they were found guilty.
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The OP alluded to a very interesting point which seems to have been lost in discussion.
If that same injury had occurred as a result of a collision whilst the employee was driving on and untreated road, would an equal liability fall on the employer?
Still “at work.” Still “reasonably foreseeable.” Presumably the employee would face exactly the same limitation as to ‘choice’ of making that journey.
Discuss?
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That is Ron. Nice to know someone else sees e problem here.. And the case was decided on negligence, so the breach of PPE regs is largely irrelevant. Interesting times ahead I think.
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Kennedy cordia supreme court decision settled.
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