Glasgow & West Scotland

Carer's landmark personal injury case overturned

A Glasgow home carer who won a landmark personal injury case has seen the verdict overturned on appeal.

Tracey Kennedy successfully sued her employer, Cordia, after falling and injuring her wrist while on "an errand of mercy" at the home of a terminally ill housebound woman in 2010.

It had been thought Lord McEwan's judgement on the case could help other injured workers seek damages in future.

Cordia appealed against the decision, which has now been thrown out.

Lord McEwan had concluded in last summer's case at the Court of Session in Edinburgh that Cordia was obliged to identify and reduce reasonable risks to staff.

Bad weather

Ms Kennedy had gone out to visit a client in Crookston in Glasgow during bad weather in December 2010, and slipped on ice while trying to reach the door, falling backwards and injuring her wrist.

Her 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 in slippery conditions.

It was also claimed that Cordia were in breach of duty by not providing attachments that Ms Kennedy could have worn over her shoes to give a better grip in snowy and icy conditions.

Cordia argued that Ms Kennedy could have made the decision not to go out that night because conditions were too hazardous.

Ruling in favour of Ms Kennedy in August 2013, Lord McEwan noted that "everyone has to live and work through winters" and that "safety is to be levelled upwards".

'Ordinary risk'

However, a panel of three judges overturned that ruling after an appeal at the Court of Session.

Lord Brodie said he could not see how 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".

He added that such a duty would be an "unwarranted intrusion into the private lives" of workers, adding: "Adults in Scotland can be expected to have experience of negotiating snow and ice in an urban environment and in choosing footwear which will help them to do so."

Another appeal judge, Lady Smith, added that if Lord McEwan was correct, it would mean that the employer was unreasonably obliged to monitor the weather and street conditions at all places where they were providing care services, check whether there was a risk of slipping, instruct employees what to wear on their feet and run checks on what they were wearing.

"Fundamentally, the risk to the respondent was an ordinary risk arising in a public place from the ordinary facts of life in Scotland," she said.

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