THE EMPLOYER’S DUTY: THE SUPREME COURT STATES THE IMPORTANCE OF RISK ASSESSMENTS

February 11, 2016 · by · in Avoiding injury, Codes of Practice, Directives, Education and training, Employer's duty, Europe, Evidence, Liability, Risk Assessments, Slips & Trips, Standard of care · 1 Comment

In Kennedy -v- Cordia Services LLP [2016] UKSC 6 the Supreme Court allowed the appellant’s appeal. The case related to Scottish law, however the principles are of general application.   It raises interesting issues as to the relevance of

“It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious.”

“It follows that where an employee has 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 is established that she would have used PPE if it had been provided, it will normally be reasonable to infer that the failure to provide the PPE made a material contribution to the causation of the injury. Such an inference is 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.”

KEY POINTS

  • The risk assessment remains a key part of the employer’s duty of care.
  • A failure to carry out an adequate risk assessment and takes steps as a result will represent a breach of the duty of care.
  • In an action for breach of statutory duty the fact that there has been a breach is a strong indication of causation.

PRACTICE POINTS

  • The key point for practitioners will be how far this is relevant as a result of the Enterprise & Regulatory Reform Act 2013.
  • The duty to risk assess remains a very important element of the employer’s duty of care.
  • Failure to risk assess can result in a negligent omission.
  • In Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 the House of Lords stated that the courts can consider Hansard, and Ministerial Statements in Particular when construing statutes:

It is illuminating, therefore, to read the statement of Minister Viscount Younger in the debate by the House of Lords on 22 April 2013:

“We acknowledge that this reform will involve changes in the way that health and safety-related claims for compensation are brought and run before the courts. However, to be clear and to avoid any misunderstanding that may have arisen, this measure does not undermine core health and safety standards. The Government are committed to maintaining and building on the UK’s strong health and safety record. The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future civil claims for negligence”.
[14]      The Enterprise and Regulatory Reform Act 2013 (the 2013 Act) by s.69 amended the Health and Safety at Work etc Act 1974 s.47 in so far as it relates to civil liability.  The section now provides the breach of a duty imposed by a statutory instrument containing health and safety regulations shall not be actionable except so far as regulations made under the 2013 Act so provide.  Counsel submitted that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law.  She made reference to a ministerial statement in the House of Lords in which a government spokesman stated that the act did not undermine core health and safety standards and that employers’ statutory duties would remain relevant as evidence of standards expected of employers in civil cases.  She argued that an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably.
[15]      With regard to the effect of the 2013 Act, counsel for the defender submitted that the section must have some content but did not expand on his argument.  I am prepared to accept counsel for the pursuer’s argument, no contrary submission being made.”
  • One key difference may be causation.  Whilst the Supreme Court said an inference can be drawn in a breach of duty case the same inference may not be drawn in an action based on negligence.
  • The existence of the duty, therefore, is highly relevant. A claimant, however, must be able to address the issue of causation and establish that the acts or omissions made a difference.

 

THE CASE

  • Miss Kennedy was employed by the defendants as a home carer. She visited client’s in their own homes.
  • She slipped and fell when visiting one of the clients.
  • She succeeded at first instance but this decision was overturned on appeal.
  • She then appealed to the Supreme Court.

THE USE OF EXPERT WITNESSES

There was a detailed consideration of the use of expert evidence.

THE DIRECTIVES
  1.        We turn next to the issues of substantive law which are raised in the appeal. Before considering the regulations which were relied upon, it is helpful to consider their background in EU law, partly because the regulations have to be construed as far as possible so as to give effect to EU law, and also in view of the Extra Division’s criticism of the Lord Ordinary’s remarks about the direction of the law being to level safety upwards.
  2.        Article 153 of the Treaty on the Functioning of the European Union requires the EU to support and complement the activities of the member states in a number of fields, including “improvement in particular of the working environment to protect workers’ health and safety”, and permits the European Parliament and Council to adopt Directives for that purpose. It is clear from the case law of the Court of Justice that article 153, and in particular the concepts of “working environment”, “safety” and “health”, are not to be interpreted restrictively: see, for example, United Kingdom v Council of the European Union (Case C-84/94) [1996] ECR I-5755, para 15.
  3.        It was under the predecessor of article 153, namely article 118a of the EEC Treaty, that the Council adopted Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (“the Framework Directive”). In the preamble, the recitals refer repeatedly to improving safety and health in the working environment, and to harmonising the relevant national laws, so that competition is not at the expense of safety and health. As the Lord Ordinary correctly stated, safety is to be levelled upwards.
  4.        As we shall explain, the Framework Directive provides a basis for “daughter” Directives addressing particular aspects of health and safety at work. It is necessary to refer to only a few of the articles of the Framework Directive itself. Article 1(1) states that the object of the Directive is to introduce measures to encourage improvements in the safety and health of workers at work. To that end, according to article 1(2), it contains general principles and general guidelines for the implementation of those principles. Article 1(3) provides that the Directive is without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work. Under article 4(1), member states are required to take the necessary steps to ensure that employers and others are subject to the legal provisions necessary for the implementation of the Directive.
  5.        Article 5(1) provides that the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work. Article 5(4) permits member states to provide for the exclusion or limitation of employers’ responsibility “where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.”
  6.        Article 6(1) provides that, within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, and shall “aim to improve existing situations.”
  7.        Article 6(2) sets out the general principles of prevention which are to form the basis of the measures taken under paragraph 1. They include:
“(a)     avoiding risks;
(b)       evaluating the risks which cannot be avoided;
…
(h)       giving collective protective measures priority over individual protective measures; and
(i)        giving appropriate instructions to the workers.”
These principles are fundamental to the panoply of “daughter” Directives, and to the legislation transposing them into domestic law. Where possible, risk is to be avoided rather than reduced; means of collective protection are to be preferred to means of individual protection (such as PPE); and merely giving instructions to the workers is to be the last resort.
  1.        Another fundamental principle is the assessment of risk. That principle is set out in article 6(3)(a), and is especially relevant to the present case. It requires the employer to “evaluate the risks to the safety and health of workers”, and provides that “Subsequent to this evaluation and as necessary, the preventive measures and the working and production methods implemented by the employer must:- assure an improvement in the level of protection afforded to workers with regard to safety and health”.
  2.        Finally, in relation to the Framework Directive, article 16(1) requires the Council to adopt individual Directives in the areas listed in the annex, including “personal protective equipment”. In terms of article 16(3), the provisions of the Framework Directive are to apply in full to all the areas covered by the individual Directives, without prejudice to more stringent or specific provisions contained in those Directives.
The PPE Directive
  1.        One of the individual Directives, within the meaning of article 16 of the Framework Directive, is Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (“the PPE Directive”). It again has its legal basis in article 118a of the EEC Treaty.
  2.        Article 1 explains that the Directive lays down minimum requirements for PPE used by workers at work. PPE is defined by article 2(1) as meaning “all equipment designed to be worn or held by the worker to protect him against one or more hazards likely to endanger his safety and health at work, and any addition or accessory designed to meet this objective.” Article 3 lays down a general rule that “Personal protective equipment shall be used when the risks cannot be avoided or sufficiently limited by technical means of collective protection or by measures, methods or procedures of work organization.” Article 6(1) requires member states to ensure that rules are established for the use of PPE, and refers to the annexes to the Directive as a guide. Annex I includes the risk of “slipping, falling over” in a specimen risk survey table for the use of PPE. Annex II sets out a non-exhaustive guide list of items of PPE, including “Removable spikes for ice, snow or slippery flooring.” Annex III sets out a non-exhaustive guide list of activities and sectors of activity which may require the provision of PPE, including, under the category of weatherproof clothing, “Work in the open air in rain and cold weather.”
The Management Regulations
  1.        The Management Regulations are intended primarily to implement the Framework Directive. Regulation 3(1) provides:
“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 …”
  1.        The statutory provisions referred to in regulation 3(1) are those contained in Part I of the Health and Safety at Work etc Act 1974 (“the 1974 Act”) and regulations made under section 15 of that Act: see section 53(1). Both the Management Regulations and the PPE Regulations were made under section 15 of the 1974 Act.
  2.        Regulation 4 of the Management Regulations provides that where an employer implements any preventive and protective measures, he shall do so on the basis of the principles specified in Schedule 1 to the Regulations. Those principles are derived from article 6(2) of the Framework Directive and are in almost identical terms.
  3.        In relation to civil liability, section 47(2) of the 1974 Act provided at the relevant time, prior to its amendment by section 69 of the Enterprise and Regulatory Reform Act 2013, that breach of a duty imposed by health and safety regulations (ie regulations made under section 15) “shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.” Regulation 22 of the Management Regulations, as it stood at the relevant time, provided that breach of a duty imposed on an employer by the Regulations did not confer a right of action in any civil proceedings in so far as the duty applied for the protection of a third party (ie someone other than an employee). The Regulations therefore contained no bar to liability towards an employee, subject to the requirement imposed by section 47(2) that the breach of duty “causes damage”.
  4.        The importance of a suitable and sufficient risk assessment was explained by the Court of Appeal in the case of Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] ICR 719. Smith LJ observed at para 58 that insufficient judicial attention had been given to risk assessments in the years since the duty to conduct them was first introduced. She suggested that that was because judges recognised that a failure to carry out a sufficient and suitable risk assessment was never the direct cause of an injury: the inadequacy of a risk assessment could only ever be an indirect cause. Judicial decisions had tended to focus on the breach of duty which led directly to the injury. But to focus on the adequacy of the precautions actually taken without first considering the adequacy of the risk assessment was, she suggested, putting the cart before the horse. Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. They should, she said, be a blueprint for action. She added at para 59, cited by the Lord Ordinary in the present case, that the most logical way to approach a question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment. We respectfully agree.
THE RELEVANCE OF THE RISK ASSESSMENT IN THE CURRENT CASE
98.        As we have explained, the Lord Ordinary was entitled to find that there had been a failure to carry out a suitable and sufficient risk assessment. Such an assessment would have involved specific consideration of the possibility of individual protective measures to reduce the risk of home carers slipping and falling on snow and ice. Had that possibility been considered, the Lord Ordinary found that a number of devices were available which would have been suitable to reduce the risk. Since none was provided, it followed that there was a breach of regulation 4(1) of the PPE Regulations.
99.        The Extra Division put forward a number of arguments in support of their conclusion that the Regulations had no application in the circumstances of the present case. First, they pointed out that regulation 4(1) is concerned with risks to which employees are exposed “while at work”. They inferred that the risks in question must be created or increased by the nature of the work. Lord Brodie considered that this construction was consistent with article 1(1) of the Framework Directive, which described the object of the Directive as being to introduce measures to encourage improvements in the safety and health of “workers at work”. Similarly, article 1(1) of the PPE Directive stated that the Directive laid down minimum requirements for PPE used by “workers at work”. Reliance was also placed on the reference in article 2(1) to “hazards likely to endanger his safety and health at work”, and to the general rule set out in article 3, quoted in para 84 above. Lord Brodie said that he took from this language that the concern of the PPE Regulations was the risks to which the worker was exposed at work which arose specifically from that work, as opposed to risks to which a worker might be exposed in the same way as members of the public. It was in the former circumstances that the employer might be supposed to have the requisite knowledge and means to control the risk through the hierarchy of measures set out in article 6(2) of the Framework Directive and Schedule 1 to the Management Regulations.
100.     We do not find these arguments persuasive. An employee is “at work”, for the purposes of both the Management Regulations and the PPE Regulations, throughout the time when she is in the course of her employment: section 52(1)(b) of the 1974 Act. The point is illustrated by the facts of Robb v Salamis (M & I) Ltd [2006] UKHL 56; 2007 SC (HL) 71; [2007] ICR 175. Miss Kennedy 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) is plain. They mean that the employee must be exposed to the risk during the time when she is at work, that is to say, during the time when she is in the course of her employment. They refer to the time when she is exposed to the risk, not to the cause of the risk.
101.     That conclusion as to the construction of the Regulations would not be affected even if, as the Extra Division considered, the Directives were to be construed as having a narrower application. As article 1(3) of the Framework Directive makes clear, the Directives do not exclude the adoption of national measures which provide greater protection. The PPE Directive in particular “lays down minimum requirements”: article 1(1). It has been noted in earlier cases that the domestic Regulations are in some respects of wider scope than the Directives (see, for example, Hide v The Steeplechase Co (Cheltenham) Ltd [2013] EWCA Civ 545; [2014] ICR 326).
102.     But the Directives are not in any case confined to risks arising specifically from the nature of the activities which the worker carries out, as opposed to risks arising from the natural environment to which the worker is exposed while at work. Article 5(1) of the Framework Directive requires the employer to ensure the safety and health of workers “in every aspect related to the work.” Article 5(4) makes it clear that the employer’s obligations are not confined to risks arising from matters within his control: member states are permitted to exclude or limit employers’ responsibility only “where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.” The obligation imposed by article 6(3)(a) applies to all risks to the safety and health of workers: Commission of the European Communities v Italian Republic (Case C-49/00) [2001] ECR I-8575, para 12. As we have explained, Annex II to the PPE Directive includes “Removable spikes for ice, snow” in its non-exhaustive guide list of items of PPE, while Annex III includes “Work in the open air in rain and cold weather” in its non-exhaustive guide list of activities and sectors of activity which may require the provision of PPE.
103.     As we have explained, the Extra Division also considered the Lord Ordinary’s approach to be inconsistent with regulations 8 and 10 of the PPE Regulations. We do not agree. Regulation 8 requires the employer to ensure that appropriate accommodation is provided for the PPE when it is not being used. Lord Brodie reasoned that, since the employer could only make accommodation available in places or situations where he could exercise control, regulation 8 suggested that the risks with which the Regulations were concerned were similarly confined. With respect, that does not follow. Protective clothing, for example, often has to be provided precisely because the employer cannot control the places or situations in which the clothing is to be worn (as, for example, in Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816 and Taylor v Chief Constable of Hampshire Police [2013] EWCA Civ 496; [2013] ICR 1150). It also has to be borne in mind that there may be situations in which the most appropriate place for PPE to be accommodated when it is not in use will be in the employee’s home or vehicle. In such a situation, the employer might fulfil its duty under regulation 8 by arranging with the employee for the PPE to be accommodated there.
104.     So far as regulation 10 is concerned, it requires the employer to take all reasonable steps to ensure that any PPE provided to his employees is properly used, and is returned to the accommodation provided for it after use. The Extra Division appear to have considered that it would be difficult to apply or enforce those obligations in situations where the risk was not created by the nature of the task carried out by the employee. We do not share that concern. Evidently, the implications of a duty to take all reasonable steps depend on the circumstances. Where, for example, the PPE is intended to be used in situations where the employee cannot reasonably be subject to immediate supervision, the duty to take all reasonable steps will not require such supervision, but may be satisfied by less onerous measures, such as adequate training and instruction.
105.     There remains the Extra Division’s conclusion that there was in any event no obligation to provide PPE in the present case, since on the Lord Ordinary’s findings the risk of slipping was adequately controlled by other means which were equally or more effective, as required by regulation 4(1) of the PPE Regulations. In that regard, the Extra Division considered that there was little evidence as to the likely efficacy of attachments over the range of underfoot conditions that Miss Kennedy could have been expected to encounter.
106.     We are unable to reconcile the Extra Division’s conclusion with the Lord Ordinary’s findings. In relation to the exception to regulation 4(1), he noted that the onus was on the employer to establish that the exception was made out. He found, in the first place, that the evidence about the precautions in place, in the form of training, was vague and unsatisfactory. As he commented, that in itself showed that the precautions taken could not be regarded as “adequate control by other means”. Furthermore, he accepted Mr Greasly’s evidence about the availability of PPE which would reduce the risk. His reasoning reflects the evidence and a proper understanding of the law. The evidence established that anti-slipping attachments were available at a modest cost; that they were 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 Mr Greasly’s own experience was that the attachments which he had used had made a difference. His evidence, which the Lord Ordinary accepted, was that, had Miss Kennedy 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, Cordia had given no consideration to the matter. In those circumstances, we can see no basis in the Lord Ordinary’s findings, or in the evidence, for finding that the exception in regulation 4(1) had been made out.

THE COMMON LAW DUTY

107.     It may be helpful at the outset to address a general point arising from the opinions of the Extra Division. They contain numerous comments to the effect that it is unreasonable to suggest that Miss Kennedy’s employer should have provided her with special footwear designed to reduce the risk of her slipping and falling, since she was in the same position as any other member of the public travelling on foot in wintry conditions. It was in that context that the Extra Division stressed the “necessary basic questions” identified by Lord President Dunedin in Morton v William Dixon Ltd, and referred to the Caparo test: see para 32 above.
108.     One can understand the Extra Division’s concern that the law should not be excessively paternalistic. Miss Kennedy 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 Cordia 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 choose 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 choose 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 Mrs Craig’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 be reduced. In those circumstances, to base one’s view of the common law on the premise that Miss Kennedy was in all relevant respects in the same position as an ordinary member of the public is a mistake.
109.     Furthermore, the common law relating to employers’ liability was not definitively stated by Lord Dunedin in Morton v William Dixon Ltd. As long ago as 1959, Lord Keith of Avonholm devoted his speech in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 to the clarification of Lord Dunedin’s dictum. He observed that the ruling principle was that an employer was bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to that principle (a point which had earlier been made, in relation to Lord Dunedin’s dictum, by Lord Normand in Paris v Stepney Borough Council [1951] AC 367, 382 and by Lord Reid in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552, 571, amongst others). He added that Lord Dunedin could not have intended to depart from or modify that fundamental principle. Both in that case and in Brown v Rolls Royce Ltd 1960 SC (HL) 22; [1960] 1 WLR 210 Lord Keith emphasised that Lord Dunedin was laying down no proposition of law.
110.     The context in which the common law of employer’s liability has to be applied has changed since 1909, when Morton v William Dixon Ltd was decided. As Smith LJ observed in Threlfall v Kingston-upon-Hull City Council [2010] EWCA Civ 1147; [2011] ICR 209, para 35 (quoted by the Lord Ordinary in the present case), in more recent times it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. In many circumstances, as in those of the present case, a statutory duty to conduct such an assessment has been imposed. The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out such an assessment is therefore, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics plc[2004] UKHL 31; [2004] ICR 975, para 49, logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care.
111.     It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious. A less outdated formulation of the employer’s common law duty of care can be found in Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 WLR 1003, para 9.
112.     In the present case, Cordia were 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.
113.     Had such inquiries been made, or a proper risk assessment carried out, the implication of the evidence accepted by the Lord Ordinary is that Cordia 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 Lord Ordinary was entitled to conclude that Cordia were negligent in failing to provide Miss Kennedy with such attachments.
114.     It is necessary only to add that the familiar threefold test set out by Lord Bridge of Harwich in Caparo is not relevant in this context, as counsel for Cordia acknowledged. That test is concerned with the imposition of a duty of care in novel circumstances. There is no doubt that an employer owes a duty of care towards its employees. The question in the present case is not whether a duty of care existed, but whether it was fulfilled.

CAUSATION:  A DISTINCTION BETWEEN BREACH OF DUTY AND NEGLIGENCE

  1.     It remains to consider the Extra Division’s conclusion that the Lord Ordinary was not entitled to find Cordia liable in the absence of any explicit finding that Miss Kennedy’s injury had been caused by any breach of duty on their part. The question is not, of course, whether Miss Kennedy’s injury would necessarily have been prevented: as in other civil contexts, the matter has to be decided on a balance of probabilities.
  2.     The Lord Ordinary made no express findings in relation to causation, other than that he accepted Miss Kennedy’s evidence that she would have used anti-slip attachments if they had been provided to her. The question therefore is whether, in the light of the other findings which were made, the only reasonable inference which could be drawn was that Cordia’s breach of their duties caused or made a material contribution to Miss Kennedy’s accident.
  3.     So far as the Management Regulations are concerned, the breach of regulation 3(1) resulted in a failure to provide protective equipment, in breach of the PPE Regulations. The issue of causation therefore turns on the consequences of the latter breach.
  4.     So far as the PPE Regulations are concerned, the finding that there was a breach of regulation 4(1) implies that there was a failure to ensure that “suitable” equipment was provided. As we have explained, equipment is “suitable” only if “so far as is practicable, it is effective to prevent or adequately control the risk or risks involved”: regulation 4(3)(d). It follows from that definition that the equipment need not necessarily prevent the risk, but it must, as a minimum, adequately control the risk so far as is practicable. The concept of suitability thus contains a causal component. The Regulations do not define “adequately”, but it can be inferred from the EU legislation (including the requirement under article 5(1) of the Framework Directive that the employer shall have a duty to ensure the safety and health of workers) that a risk will not be adequately controlled unless injury is highly unlikely. Bearing in mind that the PPE Regulations should not be construed in such a way as to reduce pre-existing levels of protection, that conclusion is also supported by case law on the previous domestic law. For example, in the case of Rogers v George Blair & Co Ltd (1971) 11 KIR 391, which concerned the duty to provide “suitable” goggles under section 65 of the Factories Act 1965, Salmon LJ stated at p 395:
“The protection, to be suitable, need not make it impossible for the accident to happen, but it must make it highly unlikely.”
  1.     It follows that where an employee has 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 is established that she would have used PPE if it had been provided, it will normally be reasonable to infer that the failure to provide the PPE made a material contribution to the causation of the injury. Such an inference is 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, be appropriate if the cause of the accident was unconnected with the risk against which the employee should have been protected.
  2.     In the present case, there was no suggestion that it would not have been practicable to provide equipment which was effective to prevent or adequately control the risk or risks involved, and the evidence of Mr Greasly was to the contrary effect. In the circumstances, the only inference which could reasonably have been drawn was that the breach of regulation 4(1) had caused or materially contributed to the accident, and that Cordia were therefore liable to Miss Kennedy under the PPE Regulations.
  3.     If, on the other hand, the Lord Ordinary’s finding of a breach of regulation 4(1) of the PPE Regulations is left out of account, and one focuses solely upon his finding of a breach of a common law duty of care, then the position in relation to causation is more problematical. Given that the Lord Ordinary accepted Mr Greasly’s evidence about the slip resistance of the attachments which he had experienced using, it might perhaps have been inferred as a matter of common sense that Cordia’s failure to provide such attachments was a material cause of Miss Kennedy’s accident (cf Drake v Harbour [2008] EWCA Civ 25, para 28). It cannot, however, be said that the Lord Ordinary would necessarily have reached that conclusion. His opinion does not contain any explicit consideration of the matter, or articulate any conclusion. In those circumstances, it is difficult to maintain that there was a proper foundation for his decision that Cordia were liable in damages at common law. That conclusion is however of no practical significance, given that Cordia are liable in any event under the 1992 Regulations.

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