employer's liability

Question 1

what are the three ways employers liability can arise in tort law?

Answer 1

a. In common law
b. Through the doctrine of vicarious liability where the courts hold) employers legally responsible for the actions of their staff
c. Under various statutory protections (for example the Health & Safety Acts)

Question 2

Non-delegable duty

Answer 2

A key concept in employers’ liability is the non-delegable nature of the duty owed by an employer i.e the law imposes a duty that is personal and non-delegable. As such, it is not a defence to prove that an employer delegated his duty of care for his employees to some other person, however competent such a person may be to discharge those duties, as the courts do not recognise this as a valid legitimate way to limit liability on the part of the employer

In certain situations the courts have been willing to accept that an employer has acted reasonably in the circumstances and will be absolved from liability by relying on the actions of a 3rd party however this only arises in circumstances where the employer was entitled to rely on the 3rd party. For example if an employer purchases the latest safety equipment from a specialist manufacturer who has ensured him of its safety but which later proves to be defective, the court will consider the reasonableness of the employer’s reliance on the goods and allow them avoid liability on the basis that there was no reason to suspect or forsee any potential harm

Question 3

what are the facts of Wilson v Clyde Coal company & English

Answer 3

The plaintiff was a miner in the defendant’s mine and was injured by a haulage drill which should not have been operating at a time when miners were travelling through the mine. The defendant a competent manager to ensure the safety of the workers at that location. The court rejected this defence stating that the employer’s duty to his employees was non-delegable and so they could not escape liability by passing their responsibility to another.

Question 4

what is the scope of the duty of care of an employer in common law?

Answer 4

(1) The provision of competent staff;
(2) The provision of a safe place of work;
(3) The provision of suitable work equipment; and,
(4) The provision of a safe system of work.

Question 5

(1) The provision of competent staff

Answer 5

Before an employer will be held liable for having failed to provide competent staff it must be shown that he had reason to be aware of their incompetence (foreseeability). An employer is under a duty to take reasonable care in the selection of competent staff and its worth noting that this is an on-going duty.

Question 6

what are the facts of Hough v Irish Base Metals?

Answer 6

The plaintiff was injured when jumping away from a gas fire lit next to him by some of his co-workers as a prank. The court held that the plaintiff was not entitled to succeed as no evidence had been adduced to suggest that the defendant was aware of what went on, nor that there was a lack of supervision on the part of the defendant which led to the incident.

Question 7

(2) The provision of a safe place of work

Answer 7

An employer is under a duty to take all reasonable care to provide and maintain a safe place of work for his employees and while a strict interpretation of the rule would cover the work premises, it has also been interpreted to include a safe means of entry and egress from the place of work.

Employers are under a duty to protect employees and to ensure they have a safe place of work even when they carry out their work on premises that is not under the control of the employer. This duty arises when a person is sent to work for a 3rd party (for example an electrican or plumber sent to a persons house to carry out repairs). It is important to note that the duty is not absolute but is instead viewed as a duty to take reasonable care

Question 8

what are the facts of Latimer v AEC ltd - safe place

Answer 8

EE slipped on floor. ER did all they could to clear it. Pl argued that he should have closed the factory for a few days to protect against it. This was rejected. Given cost of doing so, not negligent.

Question 9

what are the facts of Barclay v An post - safe place

Answer 9

Er was aware the post man was injured due to bending over for the doors low letterboxes. Upon his return, he was
given same route. They were aware of the injury and could have taken reasonable steps to ensure he wasn’t
exposed to such a risk.

Question 10

what are the facts of Rogers v Bus Atha Cliath - Safe and suitable work equipment

Answer 10

Pl was injured in work by a passenger attack; argued that there should have been a screen fitted. Here er was not
negligent as agreement had been reached with the unions of a safety measure and they were in the process of being
installed. Did all they could.

Question 11

what are the facts of Heeny v Dublin Corporation- proper equipment

Answer 11

A fireman died in course of duty when he inhaled fumes in a burning building. He had not been provided with breathing apparatus which could have prevented his death even though other units had received such equipment as much as 8 years prior to the accident. His family brought a successful fatal injuries action and the court rejected the defendant’s contention that the deceased ought to have waited outside the building until a properly equipped unit arrived because in the absence of such instructions from his superiors the deceased had to act as he saw fit as a fireman

Question 12

(4) Safe system of work

Answer 12

!he final common law duty requires an employer to do all that is reasonably necessary
to provide a safe system of work for their employees and this has been interpreted to include the physical aspects of the Job, the manner in which the job is normally done and the provision of appropriate warnings and instructions to employees charged with carrying out that job.

Question 13

what are the facts of Walsh v Securicor - safe system of work

Answer 13

As a general rule if an accident or attack is caused as the result of an unsafe system of work, or risk within the system of work against which the employer ought to have taken
precautions for, then the employer will be liable to compensate the employee for their injuries.

A good example arises in the case of Walsh v. Securicor where the plaintiff was an security
officer for the defendant and suffered personal injuries when he was ambushed by an armed
gang when delivering cash. The court found that the defendant employer was liable as the employer had not taken reasonable steps to ensure a safe system of work for the plaintiff. The court attached particular weight to the fact that the route was never varied and the predictability of the route therefore facilitated such an attack.

Question 14

psychiatric Injury

Answer 14

In recent years employers’ liability has expanded to include new and novel situations in which liability may be imposed.

The most striking example of this is in the area of employers’
liability for psychiatric injury and within that the most common cause of such harm is through
work-related stress.

The duty of an employer to provide a safe place & system of work is not
limited to avoiding physical injuries to employees but will extend to any reasonably foreseeable
injury suffered by an employee which includes psychiatric injury.

Under the broad
heading of ‘employers’ liability’, the Irish courts identify three broad categories of mental injury
claims:
(1) “Nervous shock” cases;
(2) The “worried-well cases”;
(3) Actions arising from stress in the workplace.

Question 15

Nervous shock cases - Curran v Curran

Answer 15

These cases arise where a plaintiff suffers from a medically recognized psychiatric illness
that was caused by a fear of physical injury either to themselves or to another person. The
relationship to the other person must be close the sense that there is a relationship of proximity
between the parties.

In Curran v Curran. The Plaintiff was employed by the defendants when unbeknownst to the
plaintiff an engineer was inside one of the machines when she turned it on. Hearing his screams, she assumed she had caused him serious injury and suffered psychiatric harm as a result.

The High Court upheld the plaintiff s claim and awarded damages in her favour for failing to have
due regard for the safety of their employers.

Question 16

Worried-well cases - Fletcher v Commissioners for Public Works

Answer 16

These cases involve a plaintiff who is suffering from a psychological injury which is caused by a fear that they will develop a physical injury at some future point and usually occurs where an employer has negligently exposed them to a risk (for example asbestos).

In Fletcher v Commissioners for Public Works, the plaintiff developed a reactive anxiety neurosis due to his fear of contracting an asbestos related cancer.

During the course of his employment with the defendant he had been required to remove asbestos from government buildings for
over two decades and despite being aware of the risks involved in such activities, the defendants
had not provided the plaintiff with any protective clothing or equipment.

The Supreme Court
held that the defendants had been grossly negligent but found that policy dictated that plaintiff should not be entitled to recover for what they felt were irrational fears on his part. Of particular significance to the court was the fact that the plaintiff’s own medical advisers were of the view that there was no physical evidence that he would develop cancer.

Question 17

Workplace stress cases - Walker v. Northumberland Co. Co.

Answer 17

This category of case represents the most significant area of growth in employers’ liability in the last two decades. The cases involve a plaintiff who has suffered a recognised psychiatric
illness as a result of stress caused by intolerable working conditions and/ or a failure on the part
of the employer to either recognise or sufficiently deal with complaints on the part of their
employees.

Walker v. Northumberland Co. Co.
After ee suffered a psychological breakdown, he was assured he would receive assistance to lessen the workload.
Failure to do so lead to second breakdown so the er was liable as it was foreseeable and reasonable for the ee to
expect a change.

Question 18

what will the court consider in assessing workplace related stress?

Answer 18

a. Is there an injury to the health of the employee (recognised mental illness)
b. Is the said injury attributable to the stress at work (causation)
c. Was the harm suffered, reasonable in the circumstances of the case

Question 19

stress -related incidents - Corbett v Ireland

Answer 19

De Valera J considered the extent to which it was fair to hold an employer
accountable for injuries he was not nor could not have been aware of. The plaintiff was a soldier serving in the Lebanon where he witnessed a number of traumatic scenes.

The court dismissed his claim as the army had no reason to suspect he was suffering from psychological issues as a result of his Job. In coming to his conclusion, De Valera J placed particular emphasis
on the fact that the plaintiff had been given a number of opportunities to discuss matters with
his employers and failed to bring it to their attention. In those circumstances, the employer (the army) could not have foreseen the harm and had no reason to take steps to prevent its occurrence.

Question 20

Corbett v Murtagh

Answer 20

Corbett required the plaintiff to be open abut his suffering, Murtagh would suggest that the employer must be in a position to recognise such symptoms irrespective of whether the employee can articulate their suffering. Arguably this is a more realistic approach to taken when considering mental health as the reality of the situation is a most people do not acknowledge or talk about their mental suffering - such being the nature of difficulties - and to allow an employer rely on the fact that an employee didn’t bring up their difficulties could produce unfair results if the employee was not (psychologically) in a position to do so.

Question 21

Bullying & Harassment - Quigley v complex Tooling and Moulding Ltd

Answer 21

In Quigley. v Complex Tooling and Moulding Ltd, the plaintiff was successful in his High Court action against his employers, the defendants, on the grounds that he was subjected to bullying
and harassment which caused him to suffer depression.

On appeal the Supreme Court accepted as the definition of bullying ‘repeated, inappropriate and undermine the dignity of the employee
at work’(per the Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) and ruled that the plaintiff had been subjected to bullying while in the employment of the defendants.

However, on the issue of causation, the Court dismissed his claim and
overturned the High Court award of damages because the medical evidence relied on failed to show the depressive mental illness he suffered was linked to the bullying complained of.

Question 22

Bullying & Harassment - Berber v Dunnes Stores

Answer 22

A second more recent decision came in Berber v Dunnes Stores which required the Supreme Court to examine the law from a principled position and the court found that establishing negligence in the employment context depends upon three requirements:

(I) The existence of a duty to take care;

(2) A failure to take the care which can reasonably be expected in the circumstances; and
(3) Damage suffered as a result of that failure.

Question 23

sexual misconduct - Curran v Commonwealth Office

Answer 23

Curran v Commonwealth Office involved allegations of sexual misconduct and treatment of
subordinates were made against a High Commissioner. He was summarily suspended and
withdrawn from his post even though the Court found that the allegations should have been
seen as lacking credibility. The Plaintiff’s views were never sought in relation to the allegations
until much later in the process. Further breaches were found to have occurred from the chairing
of a disciplinary hearing by a person who had made conclusions on the preliminary investigation.
The Court found that the decision to remove the Plaintiff from his position was summary and
knee-jerk in nature which it found constituted breaches of contract and breaches of the fair
treatment to which he was entitled. Summary suspension and withdrawal from his post led to
him suffering from a depressive illness and he was therefore entitled to damages for the unlawful
application of the discip~ary procedure and the decision to remove him from his position. A
breach of trust and of confidence. The Court found that the employer’s decision to suspend the
Plaintiff was not justified or warranted and therefore constituted a breach of trust and confidence.’

Question 24

Contributory negligence - Deegan v Langan

Answer 24

The plaintiff carpernter was injured by a nail supplied by his employer which both he and his employer knew to be dangerous as it tended to splinter when hit.

The supreme court rejected the contention that the employee was guilty of contributory negligence stating where an employee is directed to undertake a dangerous task, in general he only has two choices; either to undertake the task or refuse to do it but he cannot be found guilty of contributory negligence merely by virtue of the fact that he choses “ to do the job he was directed to do”

Question 25

Contributory negligence

Answer 25

The defence of contributory negligence allows a defendant’s liability to be reduced to
take account of the plaintiff’s own responsibility for the situation in question. Awareness of a
danger will not necessarily constitute contributory negligence as the primary responsibility
rests with the employer to ensure dangerous practices don’t develop in the work place.

Question 26

Volenti non fit injuria

Answer 26

The defence of volenti non fit injuria is based on a voluntary assumption of risk by the plaintiff. In other words, if the employee is engaged in work which carries with it inherent risks, that person cannot maintain a claim against their employer if that risk transpires.

This defence has been modified considerably over the years and no longer provides the blanket defence referred to above.

In particular, Section 34 of the Civil Liability Act 1961 establishes that the defence will not prevail unless there is a clear and communicated waiver by the employee.

Thus a defendant employer can only escape liability where he can show that:

(1) By contract he is not liable; and,
(2) The plaintiff agreed to waive his legal rights in respect of the incident that occurred

Question 27

Volenti non fit injuria - Ryan v Ireland

Answer 27

In Ryan v. Ireland the court rejected the state’s defence of volenti non fit injuria in relation to a
soldier injured in the Lebanon while on peace keeping duty. This was because no express
contract waiving his right to sue and while the plaintiff had accepted the risks inherent in his
job (as a peacekeeper) he had not accepted the risk of being unnecessarily exposed to injury by negligence, which is what the evidence showed in this case.