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50 Cards in this Set

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Employers' Liability - Introduction
Direct liability and vicarious liability possible. Liability under contract law, statutory provisions and negligence.

Responsibility for certain duties under negligence is non-delegable.
Employers' Liability - Liability in Negligence to Non-Employees / Contractors
Employer’s duty towards independent contractors will vary according to the degree of control exercised by the employer. Broadly speaking will owe independent contractors the duty not to expose them to any risks and dangers and to adequately warn them of the existence of these risks.

Duties owed to non-employees are an extension of general negligence principles, in contract to the duties owed to employees which have developed by reference to that specific relationship.
Employers' Liability - Liability in Negligence to Non-Employees / Contractors - Duty to Warn of Risks
Phillips v Durgan [1991]: Sister, cleaning, slipped on grease & fire. Dft owed duty as employer to give some consideration as to how it might be done with safety.
Employers' Liability - Liability in Negligence to Non-Employees / Contractors - Duty to Provide Safe Equipment
Where labour only the employer clearly owes a DoC to ensure that all the equipment supplied is reasonably safe and adequate for the job.
Employers' Liability - Liability in Negligence to Non-Employees / Contractors - Duty to Supervise Contractors
When employer decides not to hire a head-contractor to organise the activities of independent contractors, the courts are entitled to assume he as accepted that role himself.
Employers' Liability - Liability in Negligence to Non-Employees / Contractors - Duty Where Work Inherently Dangerous
Courts have held that personal non-delegable liability may attach when someone hires independent contractors to carry out work which involves some special risk or danger to the person or property of another.

Very general non-delegable duty which applies in exceptional circumstances only.
Boylan v Northern Bank [1977]
Demolition of wall. Court found that liability depended on finding the work inherently dangerous, which it was on facts: size of wall, proximity to premises, and manner work carried out. General non-delegable duty of reasonable care in respect of inherently dangerous activity.
Kealey v Heard [1983]
Dft personally liable for failing to supervise properly the work performed either personally or through another.
Wheeler v Copas [1981]
Flimsy ladders. Dft should have known inadequate and should have taken advice on what ladders would be adequate. Plf should also have known inadequate – 50/50.
Marsella v JP Construction Ltd [2004]
DoC on dft to provide adequate scaffolding.
Phillips v Durgan [1991]
Sister, cleaning, slipped on grease & fire. Dft owed duty as employer to give some consideration as to how it might be done with safety.
Employers' Liability - Liability in Negligence ot Employees - Introduction
Industrial Revolution: pro-employer approach. Now in recognition of the inherent inequality in the relationship swing towards employees. Must prove failure to exercise due reasonable care and skill.
Employers' Liability - Liability in Negligence ot Employees - Duty of Care
Personal duties owed by employer to employee were first recognised in Dowling & Brown v CIE [1960].

In general the DoC is owed by the employer but in exceptional circumstance an employee may be personally liable for injury to a fellow employee.
Shinkwin v Quin-Con [2000]
Manager had placed himself in a relationship of proximity to the plf and had failed to adequately supervise or warn him.

Q was whether the dft involves himself so closely in the operation of the factory and in particular the supervision of the plf as to make himself personally liable for any of the acts of negligence which injured the plf. Here yes.
Employers' Liability - Liability in Negligence ot Employees - Duty to Provide a Safe Place of Work
Owes duty to employees to provide safe place of work and ensure floors, access points, stairs, ladders etc are safe & that dangerous processes and hazardous substances are carefully demarcated.

Often coincides with duty to provide a safe system of work.

Duty is not absolute and liability is not strict.

Duty may extend to place or property of a 3rd party client to which the employee is sent.

This duty is not absolute and the extent of the DoC and SoC will be determined by reference to the relevant facts and circumstances.
Connolly v Dundalk UDC [1990]
Contractor hired for installation of piping by dfs.

SC: non-delegability of liability for employer’s basic DoC to provide a safe place of work. Cannot avoid by hiring contractor.

CL duty to take reasonable steps to provide safe place of work – cannot be delegated but can seek contribution to damages.
Latimer v AEC Ltd [1953]
Flood, sawdust, slip.

HL: Dfts not liable, no other complaints, risk minimal and unforeseeable and unreasonable to expect Dfts to close down property.
Dunne v Honeywell [1991]
Employer owed DoC to inspect places where employee would be sent. 3rd party liability was commensurate with the extent of the control they were entitled to exercise over the plf.
McMahon v Irish Biscuits & Quinnsworth [2002]
Climbed shelves. Employers have duty to acquaint themselves of the facilities which were provided by their customers and to satisfy that did not pose a threat to their employees.
Mulcare v Southern Health Board [1988]
Home help. Dft not liable: inappropriate for Dfts to require homeowners to modernise, would have powerless to force it, no accident for 7 years & social utility.
Employers' Liability - Liability in Negligence ot Employees - Duty to Provide a Safe System of Work
Umbrella duty: focuses on the system in place. Duty is to provide a reasonably safe system of work which encompasses adequate training, supervision and method of operation, care in design and implementation and operation of work practices.

Plfs do not have to establish what alternative system of work ought to have been in place.
Walsh v Securicor Ltd [1993]
Armed raiders. Provision of police escort by dfts was not sufficient to avoid liability due to high risk nature of the job, should have changed the time of the run.
O’Reilly v Iarnrod Eireann [2002]
SC: Dft negligent for actively condoning the unsafe system of disembarkation of employees from moving trains.
Employers' Liability - Liability in Negligence ot Employees - Duty to Provide and Maintain Safe Equipment
Also under continuing duty to keep abreast of the latest technological and trade developments and to update equipment accordingly.

If means of preventing injury not known at time or was unavailable or disproportionately expensive Dft may benefit.
Connolly v Dundalk UDC [1990]
Liable. Alarm and ventilation system commonplace – would have prevented injuries.
Russell v Bus Atha Cliath [2000]
No liability b/c dft had attempted to supply protective units but bus drivers rejected options. Dft had exercised all reasonable care.
Whitely v Minister for Defence [1998]
Army deafness claims. State failed to provide soldiers with hearing protection, training or instruction.
Heeney v Dublin Corp [1991]
Fire authority should have provided breathing apparatus (available for 7 years).
English v Anglo-Irish Meat Co [1988]
Butcher – should have provided latest protective clothing.
Employers' Liability - Liability in Negligence ot Employees - Duty to Hire Competent Co-Workers
Continuing in nature – must continue to monitor employees.

Employers’ actions will be judged by standards of reasonableness.

Depending on circumstances employers may be required to have an adequate supervisory system to ensure pranks do not become dangerous.
Hough v Irish Base Metals Ltd [1967]
Prank bit of fun which was over in an instant – not reasonably detectable.
Non-Delegable Duties
Key aspects of DoC are non delegable.

Non-Delegable Duty to Provide Safe Place: Connolly v Dundalk UDC

Non-Delegable Duty to Provide Safe System: McDermaid v Nash Dredging [1987]: Eng Court, affirmed in Ire.

Non-Delegable Duty to Provide Safe Equipment: Previously duty was delegable, sufficient if employer obtained equipment from a reputable supplier. Connolly referred to non-delegable duty however. Quill: Court may draw distinction between non-delegable duty for fixed equipment and delegable duty for portable equipment.

Non-Delegable Duty for Dangerous Operations: Where operation is inherently dangerous, employer will be responsible for negligence by independent contractor. No case, but Boylan v Northern Bank [1977]: general non-delegable duty of reasonable care in respect of inherently dangerous activity.
Employers' Liability - Liability in Negligence to Employees -Standard of Care
Courts will refer to usual 4 guiding criteria. Clear that there cannot be a static SoC having regard to the different employment conditions – employer must do what is reasonable in the circumstances. (including omissions – Caulfield v George Bell [1958]: Liable if no reasonable and prudent employer would have omitted).
Caulfield v George Bell [1958]
Employer liable for omission if no reasonable and prudent employer would have omitted.
Bradley v CIE [1976]
Fell off ladder, argued extra precautions would have reduced injury. But shown that very same system of work was used by railway companies worldwide & CIE for 10 years with no problems.

Also argued that cost of safety devices would have been disproportionate to the minute risk of injury.

SC found that Dft took all reasonable care for the safety of the employee and did not expose him to unnecessary risk – discharges duty if did what reasonable and prudent employer would have done in circs.
Daly v Avonmore Creameries [1984]
Distanced itself from cost analysis. Bradley does not mean that where lives are at state considerations of expense are any more than vaguely material.
Employers' Liability - Liability in Negligence to Employees - Damage
DoC is to prevent physical injury to the worker and also includes psychiatric illness or nervous shock. Particularly relevant in stress and bullying cases.

Scope of employer’s duty to avoid injury to or theft of employee’s property less clear: better to sue for breach of implied term of contract, as pure economic loss.
Curran v Cadbury [2000]
Dfts liable for nervous shock from turning on machine with someone inside.
McHugh v Minister for Defence [2001]
Lebanon. Dft not negligent as regards initial exposure to trauma, but was in failing to provide proper treatment once became clear that unwell.
Sunderland v Hatton [2002]
Court recognised potential liability for psychiatric illness from stress at work.

Ordinary negligence principles apply; DoC and issue of foreseeability is based on employer’s knowledge of the particular employee and the nature of the work involved;

Duty to take reasonable steps in the circumstance, clear facts must trigger this duty; and

Burden on employee to protect own health, no duty on employer to act until problem becomes apparent. Here liable for some of plfs.
McGrath v Trintech [2004]
Psychiatric illness as result of stress. Sued for negligence and breach of statutory duty. Court dismissed plf’s claim – failed to prove any causal connection between breach of statutory duty and injury.

Dismissed plf’s claim. Affirmed Hatton, no obvious signs on plf’s vulnerability for a period of time.

When signs of illness became apparent Dft took reasonable steps to deal with it.

Risk not foreseeable and Dft had acted reasonably.
Quigley v Complex Tooling Ltd [2005]
Complained to employer that being bullied but nothing done.

Court found Dft had breached its duty to provide a safe place of employment.

On facts Dft had breached standard of reasonable employer in the circumstances & caused plf’s injury.

Direct or vicarious liability of employer possible.
Maher v Jabil Global Service Ltd [2005]
Dismissed plf’s claim re stress. Had not been exposed to an unreasonable workload, and when Dft became aware of stress was given less onerous work.
Employers' Liability - Liability in Negligence to Employees - Defences
a) Contributory Negligence:

Employees have a parallel duty to take care for their own safety and of co-workers. S34 CLA 1961: damages may be reduced to reflect contributory negligence of plf. Court will look at personal characteristic of employee to assess.

b) Waiver

Voluntary assumption of risk used be complete defence. Now abolished in absolute form – will be evidence when assessing whether CN.

S34(1)(b) CLA 1961: replaced absolute defence of volenti with new statutory defence of waiver. Courts highly reluctant to imply a waiver into an employment contract – prefer to absorb waiver and assumption of risk into CN.

Not enough that there is an uncommunicated decision to accept the risk. Strict construction of waiver clauses in an employment contract.

Actual, specific knowledge of a valid waiver will be sufficient. Regan v Irish Automobile Club [1990]: race official.
O’Hanlon v ESB [1969]
SC: Not enough that there was an uncommunicated decision to accept the risk.

In such scenarios the plf’s actions could only amount to CN and did not amount to a waiver.

Strict construction of waiver clauses in an employment contract.
Regan v Irish Automobile Club [1990]
Actual, specific knowledge of a valid waiver will be sufficient: race official.
Employers' Liability - Liability in Negligence to Employees - Breach of Statutory Duty by Employers
Relevant Statutory Provision: Safety, Health and Welfare at Work Act 1989 (2005 – increased penalties)

Primarily regulative and administrative. National Authority on Safety and Health. Core duties owed by employers under the Statute shall not be taken to separately ground a civil cause of action.

S28: Min could make regulations applicable to all work activities.

General Application Regulations 1993 allows civil actions and creates very broad duties.
Employers' Liability - Liability in Negligence to Employees - Liability in Negligence and Liability Under Statute
Number of differences:

- Neg employs broad flexible concepts such as neighbourhood.

Statutory DoC: hinge upon strict technical criteria

- Neg assesses reasonableness of Dft.

Statute specifies character or wring, and often imposes strict liability.

- Defence to breach of statutory duty will be interpreted strictly against wrongdoer.

Waiver not open as defence.

- S43 CLA: Defence where both plf and dft in breach of a statutory duty: court may hold that not just or equitable to cast damage on plf where breach of statutory duty but without fault. Daly v Avonmore – discretionary

Safety, Health and Welfare at Work Act 2005 does not exclude a civil action. But as seen above often very difficult for plf to succeed in establishing a breach of statutory duty which caused the injury.
Everitt v Thorsman Ireland Ltd [2000]
Bin lever defective. Attempt to pass blame back to manufacturer.

S19 Regs: Every employer under duty to ensure equipment used is adapted and may be used without risk of injury.

Court found that imposed imperative duty on employer.

Aim to ensure employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy.
McLoughlin v Carr [2005]
Means of entry by burglars (dressed as Gardai) was no unforeseeable that adherence to the statutory duties would not have prevented the injury.