Expert Evidence on Provision of Personal Protective Equipment to Employees held to be Admissible.
April 11, 2016
Expert Evidence on Provision of Personal Protective Equipment to Employees held to be Admissible.
Kennedy v Cordia (Services) LLP
Lady Hale, (Deputy President), Lord Wilson, Lord Reed, Lord Toulson, Lord Hodge
February 10, 2016
Reported By Linda Awuor & Faith Wanjiku
The Appellant was employed as a home carer by the Respondents. Her work involved visiting clients in their homes and providing personal care. On 18 December 2010, at around 8pm, she was required to visit an elderly lady. There had been severe wintry conditions in central Scotland for several weeks, with snow and ice lying on the ground. The Appellant was driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope, and was covered with fresh snow overlying ice. It had not been gritted or salted. The Appellant was wearing flat boots with ridged soles. After taking a few steps, she slipped and fell, injuring her wrist.
The Outer House, relying on expert evidence, found the Respondents liable for the Appellant’s injury on the basis that they did not provide her with protective footwear. The Outer House’s decision was reversed by an Extra Division of the Inner House. The Appellant’s appeal to the Supreme Court concerned the admissibility of evidence given by the Expert Witness, and whether the Respondents had been in breach of their statutory duties or negligent.
i. Whether evidence on personal protective equipment given by the Expert Witness was admissible.
ii. Whether the Respondents had been in breach of their statutory duties or negligent.
iii. What considerations governed expert evidence.
Employment Law –health and safety – health and safety of employees – employers to make a suitable and sufficient assessment of the risks to health and safety of employees while at work- Management of Health and Safety at Work Regulations 1999 regulation 3(1)
Employment Law – health and safety- personal protective equipment – employers to ensure that suitable personal protective equipment is provided to employees who may be exposed to a risk to their health or safety while at work- Personal Protective Equipment at Work Regulations 1992 regulation 4(1)
Relevant Provisions of the Law
Management of Health and Safety at Work Regulations 1999 (“the Management Regulations”)
Regulation 3(1) – Risk Assessment
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 …
Personal Protective Equipment at Work Regulations 1992 (“the PPE Regulations”)
Regulation 4(1) – Provision of Personal Protective Equipment
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.
Four matters fell to be addressed in the use of expert evidence. They were (i) the admissibility of such evidence, (ii) the responsibility of a party’s legal team to make sure that the expert keeps to his or her role of giving the court useful information, (iii) the court’s policing of the performance of the expert’s duties, and (iv) economy in litigation. The first was the most directly relevant in the Appeal.
Skilled witnesses, unlike other witnesses, could give evidence of their opinions to assist the Court. That gave rise to threshold questions of the admissibility of expert evidence. An example of opinion evidence was whether the Appellant would have been less likely to fall if she had been wearing anti-slip attachments on her footwear. Experts could and often did give evidence of fact as well as opinion evidence. A skilled witness, like any non-expert witness, could give evidence of what he or she had observed if it was relevant to a fact in issue. An example of such evidence in the case was the Expert Witness’s evidence of the slope of the pavement on which the Appellant lost her footing. There were no special rules governing the admissibility of such factual evidence from a skilled witness.
Unlike other witnesses, a skilled witness could also give evidence based on his or her knowledge and experience of a subject matter, drawing on the work of others, such as the findings of published research or the pooled knowledge of a team of people with whom he or she worked. Such evidence also gave rise to threshold questions of admissibility, and the special rules that governed the admissibility of expert opinion evidence also covered such expert evidence of fact. Thus when an engineer described how a machine was configured and worked or how a motorway was built, he was giving skilled evidence of factual matters, in which he or she drew on knowledge that was not derived solely from personal observation or its equivalent. An expert in the social and political conditions in a foreign country who gave evidence to an immigration judge also gave skilled evidence of fact.
The Judicial Committee of the Privy Council approved of the use of police officers, who had special training and considerable experience of the practices of criminal gangs, to give evidence on the culture of gangs, their places of association and the signs that gang members used to associate themselves with particular gangs. In giving such factual evidence, a skilled witness could draw on the general body of knowledge and understanding in which he was skilled, including the work and literature of others. But Lord Hughes, in delivering the advice of the Board, warned that care had to be taken that simple, and not necessarily balanced, anecdotal evidence was not permitted to assume the robe of expertise. To avoid this, the skilled witness had to set out his qualifications, by training and experience, to give expert evidence and also say from where he had obtained information, if it was not based on his own observations and experience.
There were four considerations which governed the admissibility of skilled evidence. They also applied to skilled evidence of fact, where the skilled witness drew on the knowledge and experience of others rather than or in addition to personal observation or its equivalent.
Assisting the court: It was for the Court to decide whether expert evidence was needed, when the admissibility of that evidence was challenged. If on the proven facts a judge or jury could form their own conclusions without help, then the opinion of an expert was unnecessary. This was stated by Lawton LJ in R v Turner. An expert had to explain the basis of his or her evidence when it was not personal observation or sensation, mere assertion or bare ipse dixit which carried little weight. If anything, the suggestion that an unsubstantiated ipse dixit carried little weight was understated as such evidence was worthless. The Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh. He further observed that expert witnesses could not usurp the functions of the jury or judge sitting as a jury. It was the duty of an expert witness to provide material on which a court could form its own conclusions on relevant issues.
The witness’s knowledge and expertise: The skilled witness had to demonstrate to the Court that he or she had relevant knowledge and experience to give either factual evidence, which was not based exclusively on personal observation or sensation, or opinion evidence. He or she could then draw on the general body of knowledge and understanding of the relevant expertise.
Impartiality and other duties: If a party proffered an expert report which on its face did not comply with the recognised duties of a skilled witness to be independent and impartial, the Court could exclude the evidence as inadmissible. This was stated in Toth v Jarman. Other duties included giving independent unbiased assistance to the Court and material facts his opinion was based on.
Reliable body of knowledge or experience: What amounted to a reliable body of knowledge or experience depended on the subject matter of the proposed skilled evidence. There was more difficulty where the science or body of knowledge was not widely recognised. A party that sought to lead a witness with purported knowledge or experience outwith generally recognised fields needed to set up by investigation and evidence not only the qualifications and expertise of the individual skilled witness, but the methodology and validity of that field of knowledge or science. This was stated in an obiter dictum in Lord Eassie’s opinion in Mearns v Smedvig Ltd. The Court agreed on the refusal to accept the evidence of an expert whose methodology was not based on any established body of knowledge. The High Court refused to admit evidence of case linkage analysis because it was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable as stated in Young v Her Majesty’s.
There were matters in the Expert’s reports to which the Respondent did not take exception. The Extra Division acknowledged that there were matters of fact which were admissible, such as his description of the locus, including his measurements of the gradients, and his evidence of availability on the market of anti-slip attachments to footwear. But there were other factual matters which were admissible because they were relevant and might have assisted a judge, and against which the Respondent did not persist in their challenge in the Court. They included:
(i) information on the prevention or reduction of risks of tripping and slipping from publications by the Construction Industry Research and Information Association, by the HSE and from the HSE website;
(ii) research literature on the effectiveness of different types of footwear and devices to resist slipping and on the circumstances in which people suffered falls;
(iii) HSE guidance on the PPE Regulations which provided evidence of good health and safety practice in relation to dangers posed by the weather when people had to work out of doors; and
(iv) the practices of named public bodies in providing their employees working out of doors with anti-slip devices.
- The Respondent maintained their challenge to the Expert Witness’s evidence of the effect of Yaktrax, based on his own use of them, and his oral explanation of how anti-slip attachments reduced the risk of slipping, which was based on his knowledge of engineering. But these were also factual matters, which he had the experience and qualifications to describe. In the Court’s view, the Outer House did not err in admitting all of this factual evidence. It was relevant to the Court’s task to hear evidence on health and safety practice in complying with the Management Regulations and the PPE Regulations. The expansion of the statutory duties imposed on employers in the field of health and safety had given rise to a body of knowledge and experience in the field, which, as explained later in the Judgment, created the context in which the Court had to assess an employer’s performance of its common law duty of care. The Outer House was entitled to accept the Expert Witness’s experience in carrying out and advising his clients on risk assessments as a proper basis for his giving of such evidence.
- The Extra Division had two other major criticisms of the Expert Witness’s evidence. One was that he was inadmissibly giving his opinion on matters of law. The other was that an expert’s opinion of what he would have done in the circumstances did not assist the Court, and was therefore inadmissible. The former objection may properly have been made to the Expert Witness’s statements that it was for the Respondent to consider the range of footwear and attachments that were available and that it was for them to take steps to reduce the risk as far as was reasonably practicable. They appeared at first sight to be statements of opinion on the Respondent’s legal duty, which would not have been admissible before lay fact finders and should have been avoided. An experienced judge however could have readily treated the statements as the opinions of a skilled witness as to health and safety practice, based on the Management Regulations and the PPE Regulations and on HSE guidance, and made up his own mind on the legal question. The Lord Ordinary interpreted passages in the Respondent’s supplementary report as expressing an opinion that they had breached their statutory duty. However, that did not undermine the Lord Ordinary’s decision, because he applied his own mind to the central legal issues.
- The Court was not persuaded by the latter objection. There may have been cases where the opinion of a professional as to what he or she would have done in a given circumstance was of only limited weight in the Court’s assessment of a claim for professional negligence. But the Court saw no reason why the Outer House should not have found helpful the reasoned view of a person experienced in carrying out risk assessments on the rating of risks within a risk assessment. The Respondent assessed the risk of injury such as sprains or fractures when travelling to and from work locations to be tolerable, applying a British Standard with which a judge might not have been familiar but which was relevant to a consideration of proper practice. The Expert Witness opined that in wintry conditions the risk should have been assessed as substantial. His evidence provided a basis for the Outer House to weigh up the opposing views when deciding whether the Respondent had suitably and sufficiently evaluated the risks and identified the measures needed to protect health and safety.
- The Extra Division did not consider closely whether the Respondent had complied with their duties under the Management Regulations, or reached any conclusion on that question. The Court found it clear from the evidence that the Appellant was exposed to a risk to her health and safety whilst she was at work, namely the risk of slipping and falling on snow and ice while travelling between clients’ houses. That risk was obvious as a matter of common sense, and was in any event within the Respondent’s knowledge, given their previous experience of the incidence of home carers suffering such accidents each year. The risk was identified, in general terms, in the 2005 risk assessment. Although it was not explicitly addressed in the 2010 risk assessment, risks of that general nature were again identified.
- In relation to a sufficient evaluation of the risk and the necessary measures, the Outer House’s conclusion was based on findings which he was entitled to make on the evidence, and on a proper understanding of the law. As he noted, the risk of a home carer slipping on snow or ice while at work, on the way to a client’s home, was accepted to be likely a dead cert, as the Respondent’s health and safety manager put it. It was also accepted that the injuries which might have been sustained included fractures and head injuries, and were therefore potentially serious. No consideration, however, was given to the possibility of individual protective measures, before relying on the measure of last resort, namely giving appropriate instructions to employees. Even then, the instructions given, in the form of advice to wear appropriate footwear, provided no specification of what might have been appropriate. In these circumstances, the Outer House was entitled to conclude that there had been a breach of regulation 3(1) of the Management Regulations.
- The Court did not find those arguments persuasive. An employee was at work, for the purposes of both the Management Regulations and the PPE Regulations, throughout the time when she was in the course of her employment. The Appellant in particular, as a home carer, was at work when she was travelling between the home of one client and that of another in order to provide them with care. Indeed, travelling from one client’s home to another’s was an integral part of her work. The meaning of the words while at work in regulation 4(1) of the PPE Regulations (and of the equivalent words, whilst they are at work, in regulation 3(1) of the Management Regulations) was plain. They meant that the employee had to be exposed to the risk during the time when she was at work, that was to say, during the time when she was in the course of her employment. They referred to the time when she was exposed to the risk, not to the cause of the risk. The obligation imposed by article 6(3) (a) of the Framework Directive applied to all risks to the safety and health of workers. As the Court explained, annex II to the PPE Directive included removable spikes for ice, snow in its non-exhaustive guide list of items of PPE, while Annex III included work in the open air in rain and cold weather in its non-exhaustive guide list of activities. In relation to the exception to regulation 4(1), the Outer House noted that the onus was on the employer to establish that the exception was made out. He accepted the Expert Witness’s evidence about the availability of PPE which would reduce the risk. His reasoning reflected the evidence and a proper understanding of the law.
- The evidence established that anti-slipping attachment was available at a modest cost; that it was used by other employers to address the risk of their employees slipping and falling on footpaths covered in snow and ice; that there was a body of research demonstrating that their use reduced the risk of slipping in wintry conditions; and that the Expert Witness’s own experience was that the attachments which he had used had made a difference. His evidence, which the Outer House accepted, was that, had the Appellant worn such devices, on a balance of probabilities the risk of her falling on ice and snow would have been reduced and might have been eliminated. As against that, the Respondent had given no consideration to the matter. In those circumstances, the Court could see no basis in the Outer House’s findings, or in the evidence, for finding that the exception in regulation 4(1) had been made out.
- The Court understood the Extra Division’s concern that the law should not have been excessively paternalistic. The Appellant was not, however, in the same position as an ordinary member of the public going about her own affairs. It was her duty, as someone employed by the Respondent as a home carer, to visit clients in their homes in different parts of the city on a freezing winter’s evening despite the hazardous conditions underfoot. Unlike an ordinary member of the public, she could not have chosen to stay indoors and avoid the risk of slipping and falling on the snow and ice. Unlike an ordinary member of the public, she could not have chosen 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 the Client’s door. Unlike an ordinary member of the public, she was obliged to act in accordance with the instructions given to her by her employers: employers who were able, and indeed obliged under statute, to consider the risks to her safety while she was at work and the means by which those risks might have been reduced. In those circumstances, to base one’s view of the common law on the premise that the Appellant was in all relevant respects in the same position as an ordinary member of the public was a mistake.
- In more recent times it had become generally recognised that a reasonably prudent employer would conduct a risk assessment in connection with its operations so that it could take suitable precautions to avoid injury to its employees. The duty to carry out such an assessment was therefore, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care. In the present case the Respondent was aware of a history of accidents each year due to their home carers slipping on snow and ice, and they were aware that the consequences of such accidents were potentially serious. Quite apart from the duty to carry out a risk assessment, those circumstances were themselves sufficient to lead an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing that risk.
- Had inquiries onthehistory of accidents each year due to their home carers slipping on snow and ice and their consequences been made, or a proper risk assessment carried out, the implication of the evidence accepted by the Outer House was that the Respondent would have learned that attachments were available, at a modest cost, which had been found to be effective in reducing the risk, and had been provided by a number of other employers to employees in a similar position. In those circumstances, the Outer House was entitled to conclude that the Respondent was negligent in failing to provide the Appellant with such attachments. It followed that where an employee had been injured as a result of being exposed to a risk against which she should have been protected by the provision of PPE, and it was established that she would have used PPE if it had been provided, it would normally have been reasonable to infer that the failure to provide the PPE made a material contribution to the causation of the injury. Such an inference was reasonable because the PPE which the employer failed to provide would, by definition, have prevented the risk or rendered injury highly unlikely, so far as practicable. Such an inference would not, of course, have been appropriate if the cause of the accident was unconnected with the risk against which the employee should have been protected.
Relevance to Kenyan Situation
Kenya, like the UK has laws enacted to provide for health and safety of employees while at work. The Constitution of Kenya, 2010 provides so in Article 41 (2) (b) that every worker has the right to reasonable working conditions. Article 43(1) (a) also provides that every person has the right to the highest attainable standard of health which includes the right to health care services.
The Occupational Safety and Health Act Chapter 514, Laws of Kenya also provides for health and safety measures in the work place. Section 6 states that every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace. Section 7 also provides that it is the duty of every occupier to prepare a safety and health policy statement.
There has also been Kenyan case law on the same. In European Committee for Agriculture Training Rural Development (C.E.F.A) Kenya v Moses Muriuki Matiri  eKLR, it was held that the employer failed to provide sufficient protective gear leading to the employee’s ill health and thus the employer was liable as it had breached its contractual duty of care. However in contrast to the UK case and the above Kenyan case, in Purity Wambui Murithii v Highlands Mineral Water Co. Ltd  eKLR the Court of Appeal held that where an employee was in knowledge of a risk at the work place despite the employer having not provided health and safety measures, the liability would be apportioned at 50%:50%.