Hurt carer Tracey Kennedy wins legal bid against Cordia

A Glasgow home carer who was hurt after slipping on ice has won a legal case which could help other injured workers.
Tracey Kennedy’s employer Cordia argued that she could have decided not to go out in freezing conditions to visit a terminally ill client in December 2010.

But a judge ruled Cordia was obliged to identify and reduce reasonable risks.

Imminent legal changes will limit an employer’s civil liability for health and safety breaches. This ruling gives workers protection under common law.

The Court of Session in Edinburgh heard how 43-year-old Ms Kennedy had gone out with another member of staff to visit a client in Crookston during severe weather in 18 December 2010.

Council company

While attempting to walk to the client’s door she slipped on ice, which was below recent snow, and fell backwards injuring her wrist.

Ms Kennedy’s legal team argued that under the Personal Protective Equipment at Work Regulations 1992, Cordia had a duty to ensure that suitable equipment was provided to staff if they could not control the risk of slipping on ice.

It was also put to the court that the Management of Heath and Safety at Work Regulations 1999 requires an employer to make a suitable and sufficient assessment of the risks to the health and safety of its employees.

Cordia, which is an arms-length care services firm of Glasgow City Council, argued that Ms Kennedy could have made the decision not to go out that night because conditions were too hazardous.

Judge Lord McEwan rejected this and accepted evidence that Ms Kennedy was providing an essential service to a vulnerable elderly client who might otherwise have spent the night sitting in a chair, in pain, without her medication.

The court found that a relatively cheap over-shoe attachment was available and being used by other local authorities and employers.

This would have provided grip when walking on ice and would have been effective in preventing the accident.

Lord McEwan said that the health and safety of people working in dangerous conditions in Scotland should be paramount, noting that “everyone has to live and work through winters” and that fundamentally “safety is to be levelled upwards”.

The value of damages to be awarded to Ms Kennedy will be decided at a later date.

Following the judgement, Ms Kennedy’s solicitor, Iona Brown, from Digby Brown Solicitors said: “The ruling has particular significance given the changes that are due to be introduced on 1 October by the Enterprise and Regulatory Reform Act 2013.

“The act removes civil liability for breach of various statutory health and safety regulations which until now impose liability on employers.

“By finding the defender liable under common law, employees in similar circumstances will continue to receive protection in the future.”