A CARE worker who won a landmark civil case after falling in icy conditions has taken her case to the UK's highest court after the decision was overturned by appeal judges.
Tracey Kennedy fell and injured her wrist at work as she made her way to the home of a housebound woman in the Crookston area of Glasgow in freezing conditions in the harsh winter of December 2010.
The 45-year-old, from Pollok, sued her employer Cordia (Services) LLP for £150,000 in damages at the Court of Session in Edinburgh in a decision which could have had wide-ranging consequences for employers UK-wide.
However, Cordia appealed against the decision and judges this time found in favour of the firm, saying the risk of falling on the icy path arose "from the ordinary facts of life in Scotland".
Ms Kennedy has now taken her case to the Supreme Court in a bid to overturn the appeal decision.
Fraser Simpson, a partner with Digby Brown solicitors, who represent Ms Kennedy, said: "This case has important implications for workers, not just in Scotland, but across the whole UK.
"We believe that all workers have a right to be safe at work and we are committed to pursuing cases to help protect that right.
"We believe the Lord Ordinary in the Kennedy case applied the law correctly by holding that an employer is obliged to assess and identify reasonable risks to health to their employees, including the risk to peripatetic workers posed by dangerous weather conditions, and where appropriate, take reasonable steps, to reduce the risk.
"The decision serves as a reminder to employers to give reasonable forethought to the dangers their employees encounter in the interests of their business, and it serves as a warning of the consequences of their failure to do so.
"When overturning the Lord Ordinary's decision, we believe the Inner House failed to construe and apply both the statutory and common law correctly, and we are hopeful that the Supreme Court will allow our appeal."
The Court of Session initially heard that Ms Kennedy and another worker had gone to the client's house at night to provide essential care services.
Conditions underfoot were extremely wintry, and the pair parked a short distance from the house because of ice on the road.
The care worker, who was wearing boots at the time, tumbled over as she made her way down a path which was covered in ice and topped with snow which had not been gritted.
In August 2013, Judge Lord McEwan found the company at fault for not providing Ms Kennedy with proper footwear, such a spiked snow shoes, which could have prevented her fall.
He also found Cordia failed to give proper guidance on what she should wear in the conditions to avoid slipping.
The care worker was seeking £150,000 in damages but Cordia launched an appeal before her award could be decided.
Three judges upheld that appeal in September last year.
At that time, Lady Smith said: "Fundamentally, the risk to [Ms Kennedy] was an ordinary risk arising, in a public place, from the ordinary facts of life in Scotland.
"It was a risk encountered, at the time of her accident, by any person walking on snow covered pavements, whatever the reason or reasons they had to do so."
The hearing at the Supreme Court will take place next month.
Cordia declined to comment.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel