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Ice fall care worker wins Supreme Court battle against her employer

Tracey Kennedy slipped and injured her wrist as she made her way to the home of housebound woman.

By STV News

Published 10 Feb 2016.

A care worker who slipped and fell on ice on her way to the home of a terminally ill woman has won a court battle against her employers.

Tracey Kennedy, 45, injured her wrist after falling as she made her way to the home of the housebound woman in the Crookston area of Glasgow in December 2010 during freezing cold and snowy conditions.

Ms Kennedy, from Pollok, raised a damages claim against Cordia (Services) LLP, who she worked for as a carer after the fall. She sued the employer for £150,000 at the Court of Session in Edinburgh.

Cordia then contested the ruling in an appeal and it was overturned in favour of Ms Kennedy's employer.

However, she took the case to the Supreme Court in London to fight the decision and succeeded after judges overturned Cordia's appeal and ruled in her favour on Wednesday.

At the original court case, Lord McEwan said the fall victim was on "an errand of mercy" when she slipped and could not be said to have embarked on a risky course of action.

It was claimed Cordia were in breach of duty by failing to provide, instruct in the use of and ensure that Ms Kennedy used attachments to be worn over footwear to give a better grip in snowy and icy conditions.

When Cordia appealed against Lord McEwan's decision and three judges at the Court of Session found in favour of the employer, Lord Brodie said that the first ruling had lacked "a balancing of both sides of the argument with a view to determining whether it would be fair, just and reasonable to find there to be a duty of care of the scope contended for".

He said: "Had he done so I cannot see how he could have failed to reject Ms Kennedy's contention that Cordia were under a common law duty to determine exactly what their competent adult employees should wear on their feet when negotiating the streets of Glasgow in the various conditions which might be foreseeable".

on Wednesday judges at the UK's highest court ruled in favour of Ms Kennedy, unanimously allowing her appeal.

They found anti-slip attachments were available that would have reduced the risk of home carers slipping and falling on ice and that the risk was not adequately controlled by other means which were just as, or more, effective.

The judges ruled he was therefore entitled to conclude there had been a breach of regulation 4(1) of the PPE Regulations.

Wednesday's judgment added: "In relation to the common law case, it was a mistake to view the appellant as being in the same position as an ordinary member of the public.

"She was required to visit clients in their homes in hazardous weather conditions, whether or not the roads and footpaths in question had been treated.

"Her employers were able (and obliged by statute) to consider the risks to her safety and the means by which those risks could be reduced [108]. A reasonably prudent employer would conduct a risk assessment so as to take suitable precautions to avoid injury to its employees.

"The duty to carry out a risk assessment was logically anterior to determining what precautions a reasonable employer would take to fulfil its common law duty of care.

"The respondents were aware of a history of accidents each year and were aware that the consequences were potentially serious.

"Those circumstances were sufficient to require an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing the risk.

"Upon such inquiry, or the carrying out of a proper risk assessment, on the evidence accepted by the Lord Ordinary the respondents would have learnt that attachments were available at a modest cost to reduce the risk, and had been used by other employers in a similar position.

"The Lord Ordinary was entitled to conclude that the respondents were negligent in failing to provide the appellant with such attachments.

"The Lord Ordinary made no express findings as to causation, other than that the appellant would have used attachments if they had been provided.

"In the circumstances, it was reasonable to infer that the failure to provide the anti-slip attachments caused or materially contributed to the accident."

Louise Gilmour, GMB organiser for Cordia said: "This is a landmark decision in legal terms and a great decision for workers who suffer from accidents at work.

"It is a landmark decision not only for peripatetic workers such as home carers, but for all workers who can rely on the employers common law duty of care and deals a blow to the past conservative government’s attempts to stop workers from receiving full compensation when they suffer an accident at work.

"It is also a great result for Tracey. GMB has been fighting this case for the last five years. The result also means that Cordia cannot run away from its responsibility to assess risks faced by home care workers and provide adequate protective equipment to their staff."

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