Compensation Case Law Update
A landmark case recently decided in the UK Supreme Court will have far reaching consequences for the future of personal injury claims against employers. The case of Kennedy v Cordia  UKSC 6 has been argued back and forth through the courts for several years, but last week the highest court in the land finally handed down a definitive ruling. And it can be viewed as a victory for employees’ rights.
Tracey Kennedy was employed by Cordia (Service) LLP as a home carer in Glasgow. On 18th December 2010 whilst making a visit to a terminally ill patient, Ms Kennedy slipped on an icy pathway and injured her wrist. She sought compensation from her employer on the basis that their failure to provide her with non-slip footwear amounted to a breach of their duties under the Personal Protective Equipment at Work Regulations 1992, the Management of Health and Safety at Work Regulations 1999 and at common law.
Under the 1992 and 1999 Regulations employers are required to carry out risk assessments and give consideration to any protective measures that could reasonably be put in place to counter risks faced by employees in the course of their work. Ms Kennedy’s employers were aware of accidents involving home carers slipping on snow and ice. Their response to this was to advise employees to wear appropriate footwear. No consideration was given to actually providing the employees with appropriate footwear. Criticising this approach, the Court emphasised that the purpose of the regulations is to improve the health and safety of employees while at work. The Court ruled that employers have a primary duty to avoid putting employees at risk at all and that merely giving instructions to employees how to reduce a risk should be a last resort.
The judgment also made three important points in relation to the common law and employers’ responsibilities to employees: Firstly, an employer owes an increased duty of care to an employee than to an ordinary member of the public. Secondly, the duty of care that an employer owes to an employee has to be considered in the modern health and safety conscious climate. The employer will be expected to carry out a risk assessment and the adequacy of that risk assessment will be crucial in determining whether the duty of care has been met. Thirdly, even if a risk is not immediately obvious, if it is missed on a risk assessment and an employee suffers an injury, an employer may be held liable.
It will be interesting to see how this judgment is interpreted and applied in practice. One thing is certain; it has significantly increased the burden on employers to ensure the safety of their employees. In this respect, it is a welcome development.
If you have suffered an injury at work you may be entitled to compensation. Our lawyers have extensive experience in handling compensation claims arising from personal injury and accidents. For expert advice, contact our Airdrie or Motherwell office to arrange a consultation.
Author: Neil MacDonald, LLB Hons, Currently studying the Diploma in Legal Practice
The views expressed are those of the author and do not necessarily reflect the views of the firm.
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