Statutory Duties I
Employees have duties at common law to take care in the workplace for their own health, safety and welfare and that of their fellow employees. The health, safety and welfare at work legislation also imposes obligations on employees. The legislation provides that the employees have a duty to take reasonable care for their own safety and for that of other persons who may be affected by their acts and omissions.
Employees have a duty to cooperate with their fellow employees and employer to enable them to comply with relevant statutory obligations. They must use properly, the protective clothing and equipment provided. They must report without delay, any defects in plant, equipment, the workplace or the system of work which might endanger safety, of which they become aware.
Statutory Duties II
The employee’s statutory duties include obligations to
- comply with the relevant statutory provisions;
- take reasonable care for their safety, health and benefit;
- ensure that they are not under the influence of an intoxicant to such extent that they may endanger his own safety, health or welfare of that of another;
- if reasonably required by his employer, submit to appropriate, reasonable and proportionate tests by or under the supervision of a medical practitioner;
- cooperate with their employer in so far as necessary to enable the employer to comply with statutory provisions;
- not engage in improper conduct or other behaviour likely to endanger their or others’ safety;
- attend training as may be reasonably required by the employer or as may be prescribed by law;
- report to the employer or another appropriate person as soon as practicable, all work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare of employees or others;
- report to the employer or another appropriate person as soon as practicable, defects in the place of work, systems of work or substances which might endanger the health, safety and welfare of the employee or other;
- report any contravention of the statutory provisions relating to the health, safety and welfare at work.
At one time, employees found it difficult to recover damages for workplace accidents, due to various defences that benefited employers. However, the modern position is that the employer is primarily responsible for workplace health and safety. In most cases, employee’s negligence or breach of duty will not reduce their recovery of damages, if the employer is found liable.
Formerly, employers commonly succeeded in the defence of voluntary assumption of risk. Such a defence will rarely succeed in modern times. The Civil Liability Act requires a communicated waiver of the right of action. The doctrine of common employment, which deemed employees to consent to acts of their fellow employees in many cases, has long since been reversed by the courts.
Formerly a party who has any degree of fault might be denied recovery in many cases. The Civil Liability Act allowed for a greater degree of recovery where each party was partly at fault. However, the courts are very reluctant to permit a reduction in employer’s liability on the basis of an employee’s contributory negligence, relative to others in similar circumstances. Where the employee is at fault in a distinct way and to a significant extent, he may be more readily liable to found to be contributorily negligence.
Historically, the defence of voluntary assumption of risk hampered an employee’s recovery of damages. Many occupational accidents and diseases were denied recovery because the employee was deemed to have consented to the risk. This failed to respect the basic reality that the employer is in a better position to manage the workplace and insure against risks. It ignored the economic and social reality.
The former defence of common employment prevented many employee claims. This was a defence effectively based on the assumption of the risks arising from fellow employees. It was limited by the courts during the twentieth common law. The doctrine of common employment was abolished in 1958 by the Law Reform (Personal Injuries) Act.
The Civil Liability Act further narrowed the earlier defence of consent or voluntary assumption of risk. There must be a communicated waiver of the right, in order that the defence of consent / voluntary assumption of risk will apply. The Act requires the defendant has agreed to waive his legal rights in respect of the act concerned.
The abolition of the principle does not negate the possibility that the employer might be found not to be negligent in some cases due to the employee’s acceptance of the inherent risks. Certain occupational hazards may be such that the employer could not. by taking reasonable care have negated or reduced them. In such cases, the employer may nonetheless be negligent for taking the risk at all.
There must be an agreement or some communication between the parties, from which it can be reasonably be inferred that the claimant has assured the defendant that he has waived any rights of action he may have in respect of the defendant’s negligence.
The Civil Liability Act provides that breach of statutory duty by the claimant may be regarded as contributory negligence. The Act provides that in determining contributory negligence, the court may take into account the fact that the “wrong” on one respondent’s part consists only of breach of a strict duty or no fault duty, that it is not just and equitable to impose any part of the liability on that h person.
Liability may be apportioned differently in the case of statutory and common-law liability. However, the claimant may not recover more than once for the same damage. In principle, an employee may have his award reduced on account of contributory negligence. In practice, there is limited scope for contributory negligence in workplace claims.
An employee will not be subject to contributory negligence merely because he is aware of the risks of the activity concerned. The courts take account of the practical realities and will tend to accept that the employee may have little choice in accepting the workplace environment.
Contributory liability will generally be found, only where the employee has acted unreasonably. However, the employee must have some regard for his own safety. Where an employee’s injury results from a deliberate failure to follow procedures or instructions, he may be deemed to be the cause of the injury himself or to have contributed to it.
Contribution Limited I
In former times, employees encountered difficulties in recovering against employers for negligence. Formerly, contributory liability was a significant factor in industrial workplace claims. Employees were held wholly or partly responsible for their own injuries in cases where they could have avoided the accident in some way. In other cases, they were held to have voluntarily assumed the risks of the accident and could not recover at all.
In modern times, the courts and legislation have largely changed this position. The Civil Liability Act reduced the distinction between joint and concurrent wrongdoers. The modern approach of the courts is such that contributory negligence on the part of an employer has very limited application to workplace claims. The employer has primary responsibility.
Where the claim is based on a breach of statutory duty on the part of the employer, the courts are less inclined to find contributory negligence on the part of the employee. This is so notwithstanding that in non-employment cases of contributory negligence, the party who has strict (non-fault) liability may obtain full contribution from a concurrent wrongdoer whose liability is based on fault.
The courts are reluctant to find contributory negligence on the part of an employee, relative a non-employee in the same circumstances. There will be contributory negligence only if the employee has been negligent in a very definite and positive way. Where a statutory duty of the employer is involved, the courts tend to interpret is as precluding contributory negligence on the part of the employee.
Contribution Limited II
The Supreme Court has held that mere knowledge of the danger associated with the job, is not contributory negligence. Courts have also tended to hold that inadvertence, forgetfulness or momentary inattention is not of itself, contributory negligence. Modern cases show as strong disinclination against holding an employee to be contributorily liable.
The courts will strain to hold employees responsible to the minimum extent possible for contributory negligence. They readily recognise that employees may disregard their own safety, wishing to get on with the work, notwithstanding the dangers and risks.
This issue sometimes arises in the failure to wear safety equipment. Although safety equipment may be provided, a culture may develop of failing to wear it. In some cases, the practicalities of using safety equipment provided may be inconsistent with the realities of the workplace. Where it is shown that a regular practice exists unchecked, there is unlikely to be a finding of contributory negligence on the part of the employee concerned.
However, where an employee fails to wear protective equipment, which is clearly required, contributory negligence is more likely to be found.
Contributory Liability Upheld
An employee cannot absolve himself of all responsibility for his safety. The health, safety and welfare at work legislation requires that employees themselves take care for their safety. Where the employee could have easily have taken steps to avoid the risk, the fact that what the activity is dangerous is less of a consideration.
An employee is expected to have some regard for his own safety. Where an employee’s injury results from a deliberate action or a failure to follow known procedures or orders, he may be deemed to be the cause of his own injuries.
If the employee deliberately disregards specific prohibitions, there is a greater chance that he will be found to be contributory negligent or even wholly responsible for their loss. The age and experience of the employee will be often relevant.
The age and experience of the employee will be a consideration. A higher duty of care will apply to experienced employees. Less experienced employees may be excused, what would be blatant contributory negligence, on the part of another.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 4
Civil Liability for Industrial Accidents 1993 White Vol 1 Part 1
The Law of Torts McMahon & Binchy 2013 4th Ed Ch18
Insurance Law Buckley 4rd Ed 2016 Ch 13
Charlesworth & Percy on Negligence 2014 Walton Ch 10