Employee’s Duties
Cases
Deegan v. Langan
[1966] I.R. 373
S.C Walsh J.
“The relevant facts are that the parties were in the position of master and servant; the defective article was consciously and with full knowledge of the deficiency provided by the master for use by his servant; the latter was aware not merely of the defect in the article but also of his master’s knowledge of that defect. His instructions were clear and unambiguous and bearing in mind their respective positions it is my view that it would be unreasonable to hold that there still remained an obligation upon the servant to make further representations about the matter to his master. In reality the alternatives open to him were either to do the job as he had been instructed to do it or to refuse to do it. He could not be held guilty of negligence because he chose to do the job he was directed to do.”
Quinn -v- Bradbury & Bradbury
[2012] IEHC 106
Charleton J.
“Principles of liability
4. Horse riding is a sport. It is easy to confuse the nature of tort liability for horse riding accidents in a recreational setting with the liability of an employer in the context of an equestrian business. People who play sports take the ordinary risks associated with their sport and face difficulty establishing any liability in tort if injuries occur which are inherent and in the expected course of play in accordance with the rules and perhaps accidental and tolerable breaches of same. (See, in particular, Cox & Schuster, Sport and the Law (2004 First Law) at chapter 5). An employment relationship is different. An employer owes to an employee a duty to take reasonable care for his or her safety. This is set out in statutory form in s. 8 of the Safety, Health and Welfare at Work Act 2005. This provides:-
(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;
(c) as regards the place of work concerned, ensuring, so far as is reasonably practicable—
(i) the design, provision and maintenance of it in a condition that is safe and without risk to health,
(ii) the design, provision and maintenance of safe means of access to and egress from it, and
(iii) the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health;
(d) ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent;
(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;
(f) providing and maintaining facilities and arrangements for the welfare of his or her employees at work;
(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3;
(i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;
(k) reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under section 33 , as appropriate, and
(l) obtaining, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(3) Any duty imposed on an employer under the relevant statutory provisions in respect of any of his or her employees shall also apply in respect of the use by him or her of the services of a fixed-term employee or a temporary employee.
(4) For the duration of the assignment of any fixed-term employee or temporary employee working in his or her undertaking, it shall be the duty of every employer to ensure that working conditions are such as will protect the safety, health and welfare at work of such an employee.
(5) Every employer shall ensure that any measures taken by him or her relating to safety, health and welfare at work do not involve financial cost to his or her employees.
5. The stable area of the defendants and its curtilage was a place of work within the meaning of the Act of 2005, which at s. 2 defines that concept as including any place or any part of a place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which work is carried out whether occasionally or otherwise. Section 8 of the Act of 2005 reiterates the duty to take reasonable care. What matters here is not the static condition of any workplace but the direction as to how work was to be carried out. The issue is what instruction was given and what precautions were reasonably to be regarded as appropriate.
6. In s. 2(6) this definition appears as referable to the duty of care of an employer to take such precautions as are reasonably practicable for the safety, health and welfare of employees as set out in s. 8 of the Act of 2005:
For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.
This section, in the judgment of the Court, expresses what previously would have been the common law duty of care of an employer towards workers and requires little analysis. The duty of an employer is to take such measures as are reasonable and practicable in the circumstances of the work performed in order to ensure that no employee is injured while at the workplace. The more hazardous the work involved, the more stringent is the duty on the employer to take precautions. Even apparently simple and straightforward work, however, may carry the risk of an accident occurring and this must be guarded against by reasonable measures which are practicable in the circumstances. The ordinary duty of care can be fulfilled by guarding against hazards; by the issuing of a warning (in the rare circumstances where a warning is sufficient); by the provision of proper plant and equipment; by appropriate training; by requiring the implementation of appropriate safety measures with commensurate discipline; and by establishing and enforcing a sense of awareness as to what may occur should the procedures and precautions for avoiding accidents not be followed. The Court accepts that as a matter of common law and in accordance with s. 8(2)(i) of the Act of 2005 that some hazards can never be totally eliminated. The aim must be to make a hazardous task as safe as it can reasonably and practicably be made. The general principles of prevention are set out in the Third Schedule to the Act as:
1. The avoidance of risks.
2. The evaluation of unavoidable risks.
3. The combating of risks at source.
4. The adaptation of work to the individual, especially as regards the design of places of work, the choice of work equipment and the choice of systems of work, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate and to reducing the effect of this work on health.
5. The adaptation of the place of work to technical progress.
6. The replacement of dangerous articles, substances or systems of work by safe or less dangerous articles, substances or systems of work.
7. The giving of priority to collective protective measures over individual protective measures.
8. The development of an adequate prevention policy in relation to safety, health and welfare at work, which takes account of technology, organisation of work, working conditions, social factors and the influence of factors related to the working environment.
9. The giving of appropriate training and instructions to employees.
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……Liability
19. This accident happened because of what had occurred the previous Friday. The direction to ride the horse mounted past the area where it had been seriously spooked was not appropriate. Had such a direction been given, there should have been someone on the ground, or as Mr Watson has suggested, another mounted rider. In addition, the horse could have been schooled into passing the area through leading. It is the combination of the incident on Friday; the direction to pass the area mounted; the lack of appropriate precaution; and an apparent belief that merely a whip would have controlled the situation that establishes liability on the part of the defendants. Reality clearly establishes that this horse would not have gone so utterly out of control but for the incident described by Robin Quinn on the Friday having reinforced fear that was already present. The horse went totally out of control on the day of the accident. Any lingering idea that Robin Quinn acted out of character by deciding to take a fixed spiked closed metal gate of grand prix height on a stone or concrete surface, or simply fell, is wrong. It is clear that Robin Quinn had much more respect for his employers and for their animal and for his own safety. The horse went completely out of control.
20. The horse was later sold. By the stage that Mr Watson rode it six months after the accident, the horse presented as well schooled. That does not undermine the finding of the Court.
21. Having found that the responsibility for this accident rested with the employers of Robin Quinn, the court is concerned with the issue of contributory negligence. Under s. 13(1)(a) of the Act of 2005 there is a duty on an employee while at work to protect his safety, health and welfare. Other requirements are also made which are not relevant here. That subsection, of itself, maintains the responsibility of an employee at common law to take reasonable care. In principle, an employee is not required or entitled to completely surrender control over his or her welfare while at work to an employer. Although Robin Quinn was directed to ride the horse past the obstacle and, although that direction was less than the duty of care owed by the defendants to him demanded, he still had discretion as to how to proceed. Dismounting the horse and leading it past was one definite option. The majority of the responsibility for the instruction given, in that regard, must rest with his employers. If the horse was to be ridden through this area, in the context of what had occurred the previous Friday, then at least an accompanying horse mounted by a strong rider was clearly called for. When the difficulty began, the option of dismounting presented itself. That option arose as an emergency measure when the horse had slightly slowed. Possibly, Robin Quinn also ran the risk of some injury had he taken that measure then. All in all, the Court assesses contributory negligence on the part of Robin Quinn at 30%.
Damages
22. Robin Quinn spent weeks in hospital and had two serious operations to attempt to correct his broken left wrist and his smashed right arm. He can expect more operations into the future. He is left with the condition of finding it impossible to pull up the head of a horse which might stop on an ordinary hack to take some grass. His riding career is therefore completely at an end. Apart from the financial loss which this represents, he has been deprived in a serious way of an important aspect of his life Robin Quinn’s orthopaedic surgeon, Frank McManus, offered this opinion five years after the accident:
This young man sustained very significant injuries. The patient is currently 32 years of age and one would have concerns with regard to his long-term prognosis. He sustained a fracture of his left wrist, unfortunately the X rays relevant to his left wrist fractures have not been made available to me but on examination he has lost function. It will therefore be necessary for me to review this man again after a further interval … With reference to the fracture of the right elbow, this is a very significant injury with destruction of the radial head. The radial head/distal humeral joint is the joint responsible for the pronation/supination movement of the forearm i.e. the swivel mechanism of the forearm. This mechanism has been significantly compromised. This man cannot turn his palm up and in my opinion will not regain this function. I would also have concerns with regard to the longevity of the prosthesis inserted primarily acknowledging this man’s age. It is probable that this prosthesis will loosen up within a matter of 10 years and may require replacement and I cannot categorically outgrew the need in the longer term for elbow joint replacement depending on the disability that this man has over the longer period.
23. The left wrist is not now too bad. The right arm is significantly damaged and it causes intermittent pain, difficulty sleeping and impairment of function in an otherwise very healthy and sporting young man. He is living with a considerable burden. I do not regard it as reasonable to simply take the report of Mary Feeley, as a vocationalrehabilitation consultant, and suggest that a year after the accident Robin Quinn would have been able to return to employment at a level of remuneration similar to that which he had with the defendants. He was significantly depressed, and understandably so, in coping with a major injury. It was only after months of swimming, attempting to surf and the assistance of his family and his new wife that he has returned to seeking gainful employment. An argument can be made that this case should have been brought on earlier, but that argument is not accepted.
24. In the future, Robin Quinn hopes to be self-employed and presents as being determined to make the best of whatever opportunities come along. There is a loss of earnings from the date of the accident to September 2006 of €8,000. There is a claim for ongoing loss of earnings from that date to the date of judgment herein of €31,620. It is reasonable to allow €20,000 of that loss as attributable to the accident in the context of the immensely serious injury and the change of life that resulted. Medical expenses are claimed in the sum of €2,586. The Personal Injuries Assessment Board book of quantum does not differentiate between general damages to date and into the future. There is significant loss of amenities of life into the future and ongoing pain coupled with the probability of further operations to stabilise, but not to improve, the situation in the plaintiff’s right arm. The fractured left wrist cannot be regarded as serious and permanent. The relevant measure of damages would ordinarily be at least €20,000. There is undoubtedly a serious and permanent condition in the right arm which has to attract damages of €80,000. Coupled with the loss of the amenities of life and of pain and disability into the future, taking into account the need for a fair overall award, general damages in this case are assessed at €150,000: if necessary €80,000 to date and €70,000 into the future. Together with special damages, the loss is €180,586.
Decree
25. Reduced by contributory negligence, the decree will be for €126,410.”
O’Hanlon v. Electricity Supply Board
[1969] 1 I.R.75
Supreme Court
WALSH J. :
“This appeal arises out of the dismissal of the plaintiff’s action against his employers, the defendants. The plaintiff claimed damages for personal injuries sustained in the course of his employment when he fell from a ladder at Swanlinbar in the County of Cavan on the 1st July, 1964. He alleged that the fall was caused by an electric shock which he received when he was working near a live electric power-line leading into the premises of a customer of the defendants and that the said wire was live because the defendants had failed to provide him with the means for disconnecting the current from the wire before he worked upon it, and that they were thereby negligent. Although breach of statutory duty was pleaded in this case and reference was made to particular regulations, no question relating to statutory duty was left to the jury, apparently by agreement of the parties, so that it is unnecessary to consider this aspect of the case further.
…..
The next issue the jury was called upon to decide was whether or not s. 34, sub-s. 1 (b), of the Civil Liability Act, 1961,1 afforded an absolute defence to the defendants. It was not put in that form to the jury; the question which was put being:”Did the plaintiff, with full knowledge of the risk involved, freely and voluntarily undertake such risk?” It will be necessary to return to this matter in detail later in this judgment. However, in passing, it is to be noted that this defence was pleaded by the defendants in the following terms:”The plaintiff, well knowing the risk of sustaining injury in the operation which he was performing at the time of this accident, voluntarily undertook the said risk.” The plaintiff in his reply pleaded:”The plaintiff did not voluntarily undertake the risk of sustaining injury, as alleged in paragraph 3 of the defence, nor did the plaintiff well know the said risk as alleged.” The question put to the jury, which I have already recited, was answered in the affirmative. The jury gave no answer to the specific question of the plaintiff’s negligence and no answer to the questions on damages. Judgment was accordingly entered for the defendants.
……
It appears to me that the whole gist of the defendants’ cross-appeal, and of their application to have the plaintiff’s claim withdrawn from the jury, is the question of causation and what used to be called the defence of volenti non fit injuria but which can now only properly be described in the words of the Civil Liability Act, 1961, as “the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it.” The defendants’ submissions in respect of the causation factor also covered many of the points relied upon in support of the statutory defence, in as much as it was submitted that the effective cause of the accident was solely the plaintiff’s action in unforeseeably undertaking what he admittedly knew to be the dangerous task of working upon, or in close proximity to, the live electric wire. I might observe, in passing, that my use of the phrase”statutory defence” is advisedly made as, in my view, the defence set out in the terms of the statute is now to be properly regarded as a statutory defence and should be so pleaded. For the purposes of this appeal the defence may be treated as if it had been raised in the terms of the statute.
This is an appropriate point at which to deal with this defence. It is stated in the 14th edition of Salmond on Torts at p. 47 that the maxim volenti non fit injuria had its origin in the process by which Roman Law validated the act of a free citizen in selling himself into slavery. It may be fairly stated that the true nature of the defence reflects this historical origin. In the nineteenth century it found its way into the law of torts in which it had a double application in intentional and accidental harms. The present case has reference only to the latter. It is unnecessary to recite in any detail the history of this defence and its treatment by the courts since it entered into the law of torts. In recent years this defence has virtually disappeared in master and servant cases which turn on common-law negligence. It is not allowable at all where a breach of statutory duty is proved against an employer. In England, however, there is some authority for its continued survival in cases of breach of statutory duty imposed on a fellow workman where it is sought to make the master, who has not been guilty of any breach of statutory duty, vicariously liable: see Imperial Chemical Industries Ltd. v. Shatwell. 17 The burden of establishing this defence falls on the defendant in all cases. In Bowater v. Rowley Regis Corporation 18 Lord Goddard said:”The maxim ‘volenti non fit injuria’ is one which in the case of master and servant is to be applied with extreme caution. Indeed, I would say that it can hardly ever be applicable where the act to which the servant is said to be ‘volens’ arises out of his ordinary duty, unless the work for which he is engaged is one in which danger is necessarily involved.” For example, there are some occupations which cannot be carried on in perfect safety and where the presence of the danger is mutually recognised in that the servant undertakes the risk for the sake of higher pay. It was well settled, however, that knowledge of the danger and acquiescence in it did not establish the defence, although knowledge and acquiescence were necessary links in the chain of proof which a defendant undertook when he set out to prove that the plaintiff had voluntarily agreed that, if an injury should befall him, the loss should be on him and not on the defendant. Unless a defendant could obtain a finding to that effect he could not have succeeded in his defence. If there was no negligence on the part of the defendant, the point of the defence never arose. Likewise it did not arise if the negligence on the part of the defendant was not a causative factor in the accident.
It now becomes necessary to consider the wording of the relevant provision in the Civil Liability Act, 1961. Section 34 of that Act, which provides for the apportionment of fault in cases of contributory negligence, enacts at sub-s. 1(b) that “this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk.” In s. 2, sub-s. 1, of the Act the word “contract”is defined as meaning a contract under seal or by parol. This clearly refers to a contract supported by consideration or one under seal. There is no such contract alleged in this ease and it is not necessary to consider this point further. It is already settled that such contracts are construed strictly against the party claiming the benefit of the exemption and there are instances where such contracts are actually prohibited by statute.
Under the terms of the Act of 1961 the defendants must establish that the plaintiff agreed to waive his legal rights in respect of the act complained of and that such agreement was made before that act. As no question of statutory duty arises in this appeal it is unnecessary to consider whether any such agreement, if it did exist, would be contrary to statute or to public policy. In my opinion, the use of the word “agreed” in the Act of 1961 necessarily contemplates some sort of intercourse or communication between the plaintiff and the defendants from which it could be reasonably inferred that the plaintiff had assured the defendants that he waived any right of action that he might have in respect of the negligence of the defendants. A one-sided secret determination on the part of the plaintiff to give up his right of action for negligence would not amount to an agreement to do so. Such a determination or consent may be regarded as “voluntary assumption of risk” in the terms of the Act but, by virtue of the provisions of the Act and for the purposes of the Act, this would be contributory negligence and not the absolute defence mentioned in the first part of sub-s. 1(b) of section 34. According to the text-books the position of the defence of volenti non fit injuria prevailing in the first half of the last century was that it was in practice indistinguishable from the then defence of contributory negligence, being generally based upon the finding that a plaintiff was himself the cause of the injury or that the injury resulted from his own act alone. A careful perusal of the arguments advanced by the defendants in the present case shows that they were really submissions to the learned trial judge and to this Court that the plaintiff’s injury resulted solely from his own act which, being based upon his knowledge of the risk and his willingness to undergo it in the light of that knowledge, amounted to clear evidence of negligence on the plaintiff’s part.
The defendants’ case left open for the jury the consideration of whether the plaintiff’s negligence was the sole cause of the accident or whether the negligence on the part of the defendants was also a cause of the accident. In the latter case it would be the duty of the jury to apportion the degrees of fault and the damages would be apportioned accordingly. The statutory absolute defence would not arise for consideration unless the jury were satisfied that the negligence of the defendants was a causative factor. The defendants’ submissions as to knowledge of the risk and the willingness to undergo it, or even the choice to undergo it in the light of the knowledge, simply highlights what has been well established since Smith v. Baker & Sons 19, namely, thatsciens is not volens. It is difficult to discover any negligence action in modern times where the defence of volenti non fit injuriahas succeeded. This is understandable when it is remembered that the defence was restrictively construed and that cases in which a person truly consented (not only to run the risk of physical injury from another person’s wrongdoing but also to waive his legal rights in respect of it) must be extremely rare in the realm of negligence, apart from those cases where there is in existence a contract within the meaning of the Act of 1961 such as the excursion ticket on the railway or the terms of entry to certain premises.
In the present case there is evidence, which the jury accepted, which discloses that the plaintiff was instructed by the defendants, or their employees who were in authority, to do a certain job which required particular equipment and that the defendants permitted the plaintiff to depart and to carry out the job without the necessary equipment. Assuming for the moment that this negligence of the defendants was a causative factor in the injury suffered by the plaintiff, the question then arises whether it constitutes (with the plaintiff undertaking the job) evidence of a communication between the parties from which it can be inferred that it was agreed that the danger, created by the defendants’ negligence, was accepted by the plaintiff to the point of waiving his legal rights if he should be injured by that danger. In my view the answer must be “No.” It does no more than evidence knowledge of the risk of injury on the plaintiff’s part. Knowledge is an essential link in the chain of proof but, if it is the only link in the chain, it is insufficient proof. The evidence did not warrant leaving the question of the statutory defence to the jury. The plaintiff’s appeal on that ground should be allowed.
……
The real question, and it was not put to the jury, was whether the plaintiff undertook the operation in question in circumstances from which it could be inferred, if it was not actually expressed, that he had agreed with the defendants before the dangerous operation was undertaken that he was exonerating them from liability for their negligence in not furnishing him with the means of disconnecting the current. The judge’s charge erroneously permitted the jury to infer agreement from knowledge only and erroneously permitted them to equate a unilateral private determination with an agreement between two parties. In my view this is not permitted by the words of the statute which are”agreed to waive his legal rights . . . whether or not for value.”
Kennedy v. East Cork Foods
[1973] I.R. 250
Supreme Court O’Dalaigh C.J.
“The first of the defendants’ grounds of appeal is that the jury’s findings of no contributory negligence, in the action for breach of statutory duty, is perverse, having regard to their finding of 331/3 per cent. fault against the plaintiff in the action for negligence at common law. I am quite satisfied that both in principle and in the special facts of this case the jury’s finding in the second cause of action of no contributory negligence cannot be disturbed. The trial judge properly directed the jury that the term”contributory negligence” in the second cause of action had a different meaning. His words were:” “When a factory owner is bound to have a machine fenced or guarded and the operative manages to get his hand caught in the machine the operative is not guilty of contributory negligence merely because he was careless or inattentive, or forgetful, or inadvertent. It must be shown that he did something rather more than that. He must enter into the realm of downright carelessness, because the Factory Act was passed for the express purpose of saving factory workers from their own carelessness, and their own inattention. The plaintiff would not be guilty of contributory negligence unless you are satisfied that what he did was not simply inadvertence, normal forgetfulness, normal inattention, but he was in fact negligent and careless in a more positive and definite way. If you find that there was breach of statutory duty and there was contributory negligence on the part of the plaintiff, again you are asked this question to apportion the degree of fault between the parties. That is a matter that need not necessarily be the same as the first question because the degree of care expected from the plaintiff in regard to statutory duty is different from the degree of care vis-Ã -vis the negligence in the first question.” This direction was not objected to and, in my opinion, it is unexceptionable.
The judge’s direction in substance follows what was said in Caswell v. Powell Duffryn Associated Collieries Ltd. 11which is a case which has been followed many times in this Court.
The speech of Lord Wright in Caswell’s Case 11 is that most frequently quoted. At pp. 178-180 of the report he said:” “What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some inattention to his own safety . . . The policy of the statutory protection would be nullified if a workman were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into the danger consequent on the breach by his employer of the statutory duty. It is the breach of statute, not the act of inadvertence or carelessness, which is then the dominant or effective cause of the injury.” In the course of their speeches Lord Wright and Lord Atkin referred with approval to the statement of Lawrence J. in Flower v. Ebbw Vale Steel, Iron & Coal Co. Ltd. 12 at p. 140 of the report where he said:” “I think, of course, that in considering whether an ordinary prudent workman would have taken more care than the injured man, the tribunal of fact has to take into account all the circumstances of work in a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence.”
In the cause of action for breach of statutory duty, the jury were, in my opinion, entitled to acquit the plaintiff of contributory negligence. After the overhaul of the machine had been completed during the previous night-shift, the guard had been replaced and the plaintiff expected that that guard was still in position. The suggestion that the plaintiff, before attempting to re-adjust the hopper, should have turned off the dicer came to nothing when the defendants’ production manager said in his direct evidence that, from his point of view, there would be an objection to turning off the machine because (it is to be inferred) of the consequent hold-up in the work of the factory. As to the surrounding conditions of work, the evidence paints a picture of water, steam and “cabbage everywhere”which would make it far from easy to observe that the guard had been removed from the dicer. It should be added that it appears that the guard in question was intended to be a permanent fixture and not one which there would be any occasion to remove in the course of the ordinary operation of the machine.
The defendants have urged that the finding of 331/3 per cent. fault against the plaintiff in the cause of action at common law is inconsistent with a finding of no contributory negligence in the cause of action for breach of statutory duty. The three grounds advanced by the defendants for saying the plaintiff was guilty of contributory negligence were, first, his failure to switch off the machine; secondly, his failure to look and see that the guard was no longer there, and, thirdly, that he should have held the hopper at the top when positioning it and not have held it with one hand at the bottom.
I have already dealt with the first two grounds. As to the third ground, the judge pointed out that the normal condition of the hopper was that it was wet, that it had no knob or other handling device ” the hopper on the left-hand side had a handle ” that its weight was 10 lbs. and that it would, he thought, be rather risky to hold it at the top. My difficulty is to find any adequate justification for the jury’s finding in the common-law cause of action of 331/3 per cent. fault against the plaintiff. If it were necessary to do so, I would set the finding aside; but I would not disturb the finding in the cause of action for breach of statutory duty.”
McKenna v. Meighan
[1966] I.R. 290
Supreme Court Walsh J.
“The second ground of appeal relied upon is that the apportionment of fault by the jury to the extent of attributing 65 per cent of the fault to the defendant and 35 per cent to the plaintiff was unreasonable and could not be properly found and was not in accordance with, and was against the weight of, the evidence. In the course of the argument, considerable emphasis was placed upon the fact that the plaintiff admitted that he knew the method he was directed to employ was dangerous, that he felt that it was dangerous and that nonetheless he elected to adopt it. In his evidence, which the jury apparently accepted, he indicated that notwithstanding his obvious reluctance to adopt the method directed by his employer, his employer derided his fear and directed him to do what eventually led to the accident. It is well established that the workman’s knowledge of the danger is not in itself contributory negligence as knowledge is only an ingredient in negligence. A point also made by the appellant was that the plaintiff in following the method designated did not exercise reasonable ordinary care for his own safety in that he did not secure a hand-hold when mounting the object from which his foot subsequently slipped. The evidence was that he mounted this object and then sought the hand-hold. While it is not by any means clear that even if he had secured the hand-hold before securing the foot-hold that the accident would not have happened or would not have happened with the same degree of severity, nonetheless it was a matter which the jury was entitled to take into consideration in weighing the question of the plaintiff’s negligence. In the event they have attributed 35 per cent of the fault to the plaintiff. This Court has been asked to hold that that is a gross under-estimate of the degree of the plaintiff’s negligence. Having regard to the fact that there was ample evidence to indicate that the method designated by the defendant was itself dangerous and that the jury could hold that it was dangerous, no matter in what way it was employed, though the degree of the danger might vary, in my view the appellant’s contention that the plaintiff must be held to have been at fault to a greater degree than the defendant cannot be sustained. The evidence is not such as ought to coerce any reasonable jury into so holding and indeed one might feel that in attributing to the plaintiff 35 per cent of the fault the jury was not taking a lenient view of his contribution and in my view it is a finding which is not to be disturbed.”
Daly v. Avonmore Creameries
[1984] I.R. 131
S.C McCarthy J.
“The defendants operate a factory (within the meaning of the Factories Act, 1955) at Carrick-on-Suir in the county of Tipperary. They engaged a firm of engineers, Messrs. Pettit & Co. of Cork, to act as consultants and, when necessary, to engage contractors for work on the factory premises. Some roofs on the factory required repair and repainting and Pettits retained Timothy Emery, trading as Lauriston Agencies of Fountainstown in the county of Cork, to carry out work as described in an official order form dated the 17th October, 1979. Emery engaged, to use a neutral term, James Daly and Redmond O’Brien for at least part of that work. For such relevance as it has, a factor which escapes me, Emery was an undischarged bankrupt; he had no employer’s liability insurance.
On the 21st April, 1980, James Daly was crossing a roof at the factory premises, in order to repair a damaged skylight, when he fell through what, clearly, was a dangerous part of the roof on which to walk. His widow brings this claim on her own behalf and on behalf of her children. By agreement it was tried before Mr. Justice D’Arcy in the High Court at Kilkenny on the 1st and 2nd March, 1983. The trial judge upheld the plaintiff’s claim but reduced the amount of the award by a finding that the deceased, James Daly, was guilty of contributory negligence to the extent of 20 per cent. On the following day, the 3rd March, he proceeded to the assessment of damages, which is not the subject of any substantial appeal.
The plaintiff’s case as pleaded was that “owing to the negligence and breach of duty including statutory duty of the defendant its servants or agents in causing or permitting the deceased to execute work on a dangerous roof of the defendant’s said premises the deceased was caused or permitted to fall through the roof . . .” No allegation was made as to the relationship between the deceased and the defendants; ……
Apart from a plea of contributory negligence against the deceased, the defence traversed the allegations in the statement of claim, including a denial that the defendants were under any statutory duty to the deceased. In particular, the traverse included a denial that the defendants or their servants or agents caused or permitted the deceased to execute work on the plaintiff’s [recte defendants’] premises, or that they or their servants or agents required or permitted the deceased to work on a dangerous roof or caused or permitted the deceased to fall through the roof. No plea was made that the deceased’s presence on the roof was in any way unlawful or outside the scope of his work, or that, if any servant or agent of the defendants required or permitted the deceased to work on the roof, such requirement or permission was outside the scope of the employment of such servant or agent a fairly common form of denial of authority.
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[Having referred to the provisions of s. 37 of the Factories Act, 1955, the judge continued] The plaintiff’s case on the hearing of this appeal has been significantly placed upon the provisions of sub-s. 1 of s. 37 of the Act of 1955, and particular reference was made to the construction placed by English courts upon the like section of the English Factories Act in Whitby v. Burt, Boulton & Hayward Ltd. 13 ; Whincup v. J. Woodhead & Sons 10 and Lavender v. Diamints Ltd. 12 (which cases are conveniently summarised at p. 62 of Shillman’s Factory Legislation of Ireland). The plaintiff also relied on Wigley v. British Vinegars Ltd. 11 which was cited with approval by Mr. Justice Walsh in Roche v. P. Kelly and Co. Ltd. 7 where, at p. 110 of the report, he said:
“This Court in Daly v. Greybridge Co-Operative Creamery Ltd. 6 (and the House of Lords in Wigley v. British Vinegars Ltd. 11 ) held that the provisions of the Factories Act were not of an entirely general application to any person who happened to be in the premises in the course of his duties; the true distinction was between those who were there working for the purpose of the factory, or at work incidental to it, and those who were not. It quite clearly did not exclude independent contractors as such and an independent contractor is ‘a person employed’ or ‘a person working in’ a factory when he is there working for the purpose of the factory or when his work there is incidental to the purpose of the factory: see Wigley v. British Vinegars Ltd. 11 in this context also.”
None of these English cases were referred to at the trial. Whilst Roche’s Case was concerned with the application of the Building (Safety, Health and Welfare) Regulations, 1959, the predecessors of the Regulations of 1975, the principal statement in respect of the Factories Act is isolated from those Regulations.
Quite apart from authority, and based upon the ordinary canon of construction, it seems to me that words are to be given their literal meaning and that the defendants, as the occupiers of the factory premises, were bound, so far as was reasonably practicable, to provide and maintain safe means of access to every place at which any person, including the deceased, had to work at anytime.
Section 100 in Part XI of the Act of 1955 imposes liability for a contravention of the Act in, or in connection with, or in relation to, a factory; generally speaking that liability is imposed on the occupier. It should not be overlooked that the liability is a criminal one as expressed in the statute; the civil liability derives from the statute but is not so expressed. The term”occupier” is not defined in the statute nor, indeed, in either of the corresponding statutes in the United Kingdom the Factories Act, 1937, and the Factories Act, 1961. I mention this because of the number of cases decided in the English courts, to which reference was made during the course of the argument, relevant to the issue of where the liability lies; whereas no decisions of this Court or of the High Court have been cited on that particular question.
In Turner v. Courtaulds Ltd. 14 the complaint was based on a breach of regulations at an electrical switchboard which was being installed by contractors and had not yet been handed over. The respondents were held liable as occupiers of the factory. In McWilliams v. Sir Wm. Arrol & Co. 15 occupiers of a shipyard were held liable for the failure of contractors erecting a crane to provide safety-belts for workmen at a height. Lack of knowledge of the circumstances was no defence.
In Meigh v. Wickenden 16 Viscount Caldecote C.J. said at p. 164 of the report:
“The occupier’s responsibility under the Act does not depend on proof of personal blame or even on knowledge of the contravention.”
In Smith v. Cammell, Laird & Co. 17 Lord Wright commented (p. 264) on the reasons for what might appear to be a very heavy, if not unfair, liability:
“This may appear somewhat out of the course of the common law, but the statute is remedial. It is for the protection of workpeople, and that object can best, perhaps can only, be secured by fixing liability on a single person and by defining the obligation in absolute and mandatory terms.”
In Whitby v. Burt, Boulton & Hayward Ltd. 13 Denning J., as he then was, said at p. 928 of the report:
“I hold, therefore, that, for the safeguarding of people in factories s. 26 applies, and puts the responsibility on the occupier, even though the building operations are being carried out by a contractor.”
In Hosking v. De Havilland Aircraft Co. 18 Louis J. held the occupiers liable for an unsound plank put over a ditch in the factory grounds by contractors.
Such then is the liability of the occupier pursuant to s. 37 of the Act of 1955. The duty in respect of means of access is confined to the access to every place “at which any person has at any time to work” (sub-s. 1) and when “any person is to work at a place from which he will be liable to fall a distance more than ten feet” (sub-s. 2). Both sub-sections presuppose that the “place” is one where any person has or is to work. It is not confined to employees of the occupier; it, manifestly, extends to any case where a person is lawfully at work.
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“Reasonably practicable”
On the adjourned hearing, when counsel for both parties were invited to address arguments in respect of the judgment of Mr. Justice Walsh in O’Sullivan v. Dwyer 9 , Mr. Fennelly compared the provisions of s. 37 with regulation 6 of the building regulations which were considered in O’Sullivan v.Dwyer 9 in effect as to whether or not there was a strict duty. On this question, he submitted that, in construing s. 43 of the Civil Liability Act, 1961, the determination of whether or not it was just and equitable to cast any part of the damage upon the person referred to in s. 43 would be, in part at least, determined by the question as to whether or not the precaution necessary to avoid injury was “reasonably practicable”, but then turned his argument, as I have already indicated, to the question of the application of s. 37 of the Act of 1955. Mr. Comyn, for the plaintiff, confined his argument to the issue raised by O’Sullivan v. Dwyer 9 to which I shall advert.
Other than this, no argument was addressed to the Court on the construction of the term “reasonably practicable.” There is a significant body of persuasive authority in the English and Scottish courts in cases under comparable legislation Lee v. Nursery Furnishings Ltd. 19 ; Schwalb v. H. Fass and Son Ltd. 20 ; Street v. British Electricity Authority 21 ; Edwards v. National Coal Board 22 ; Marshall v. Gotham Co. Ltd. 23 ; Coltness Iron Co. Ltd. v.Sharp. 24
More to the point, the observations of Mr. Justice Henchy in Bradley v.Coras Iompair Eireann 25 at pp. 223-4 would appear to be relevant. I am not to be taken as supporting a view that, where lives are at stake, considerations of expense are any more than vaguely material. Where a danger is very rare, such considerations may be irrelevant. There is nothing rare about the danger of a man being killed in falling through, or from, a roof. I should add, further, that, in my view, the term “reasonably practicable” is not necessarily analogous to the use of the word reasonable in considerations of negligence at common law. Lastly, under this heading of the case, I would share the view expressed in Nimmo v. Alexander Cowan & Sons Ltd. 26 that the onus of calling evidence that no safety measures were reasonably practicable is on the defendants. Such an issue can scarcely arise in the instant appeal since the very measure that would have saved the life of the deceased was one which had been taken earlier by Emery in protection of his own life.
Section 43 of the Civil Liability Act, 1961, provides: “In determining the amount of contribution or of reduction of damages under sub-section (1) of section 34 for contributory negligence the court may take account of the fact that the negligence or wrong of one person consisted only in a breach of strict statutory or common-law duty without fault, and may accordingly hold that it is not just and equitable to cast any part of the damage upon such person.”
At p. 285 of the report of O’Sullivan v. Dwyer 9 Mr. Justice Walsh, with whose judgment O’Dalaigh C.J. and FitzGerald J. agreed, said:
“A single wrong on one side may have done far more to bring about the damage than the sum of the wrongs on the other side. This seems to me to indicate that blameworthiness is involved in the sense of a party being more to blame or less to blame, as the case may be, in the normal sense as if one were to say, in respect of somebody’s action, that he ought to have known better or that he could hardly have been expected to know that. That this is so appears to be recognised by the provisions of s. 43 of the Act of 1961 which provide that where the defendant’s wrong is the breach of strict statutory or common-law duty without fault there shall be no apportionment of fault as against him.”
I pause to express my difficulty in understanding this interpretation of s. 43 which appears to me to permit absolution from fault in such a case but not to compel it. As I understood the argument of counsel for the defendants, this was his view.
Mr. Justice Walsh continued at pp. 285-6: “However, it appears to me that in the apportionment of fault this indicates that, where a defendant’s causative contribution to damage has been his breach of such strict duty, there must also be negligence on his part before any apportionment of the fault can be attributed to him. In my view, this indicates that under our law an action for breach of strict duty is not an action for negligence although some breaches of statutory duty may give rise to an action for negligence: see the definition of ‘negligence’ in s. 2 of the Act of 1961. Breach of strict duty is in itself actionable and appears to me to be a cause of action in which foreseeability is not a necessary ingredient. On the other hand the torts of negligence and of public nuisance, as distinct from the tort of breach of strict duty, are based upon personal culpability arising from the failure to avoid the foreseeable. It appears to me that this conclusion necessarily follows from the statutory distinction which the Act of 1961 makes between the wrong of breach of strict duty and the wrongs importing fault. Of course, it is possible to show that in many (if not most) cases of breach of strict duty there has also been culpable wrong or fault on the part of the defendant, but that is a different situation.
The result, however, appears to be somewhat anomalous. Under the terms of the Act of 1961 a person who has caused damage by the commission of a wrong which amounts to a breach of strict duty is liable in damages to the person injured thereby, even though the wrongdoer was not guilty of any fault, provided that the person injured was not guilty of contributory negligence. The position appears to be that, once he has been found guilty of contributory negligence, the person injured will fail to recover anything if the defendant wrongdoer cannot be shown to have been at fault. For example, the occupier of a factory may be under a strict duty not to use a certain piece of equipment unless it is of adequate strength, which is a continuing obligation; if the equipment proves not to be of adequate strength because of a defect which was not patent and which could not have been discovered by reasonable care or inspection (as in Doherty v. Bowaters Irish Wallboard Mills Ltd. 27 ) and this causes injury, the defendant would be liable in full to the injured party if the latter is not shown to have been guilty of any contributory negligence. On the other hand, if the injured party is shown in such case to have been guilty of any degree of contributory negligence amounting to causation, no part of the fault would be attributed to the defendant unless it could be shown that he was at fault in addition to being guilty of breach of strict duty. In such a case, therefore, it would be necessary to prove that the defendant was guilty not merely of breach of strict duty but also of some other causative factor from which fault could be deduced. It is right, however, to add that in a case of breach of strict duty only, a plaintiff could scarcely be found guilty of contributory negligence unless he had knowledge of the breach of strict duty found against the defendant.”
Whilst the judgment does not say so, I cannot so interpret s. 43 of the Civil Liability Act, 1961, unless the word “may” is to be read as “shall”; there is ample precedent for such interpretation but it was not expressly so held in the judgment of Mr. Justice Walsh, whose later observations at p. 286 of the report of O’Sullivan v. Dwyer 9 were quoted in the judgment of Kenny J. at pp. 226-7 of the report of Carroll v. Clare County Council. 28 Whilst Kenny J. (with whose judgment Mr. Justice Henchy and Mr. Justice Griffin agreed) said that he agreed with the principle in the passage quoted from the judgment of Mr. Justice Walsh, there appears to me to be a qualification on that passage contained in the judgment of Kenny J. Be that as it may, since the observations of Mr. Justice Walsh were related to the manner in which the trial judge should have directed the jury. The issue left to the jury in O’Sullivan v. Dwyer 9 arose directly from regulation 6; no other fault was in issue but 60% of the fault was apportioned to the defendant and 40% to the plaintiff. Accordingly, the defendant’s failure to comply strictly with regulation 6 was sufficient, apparently, to take the case outside s. 43 of the Act of 1961; it seems to me that a like result would follow here, but it may well be that the matter was not considered in that light at all.
Conclusion
In ground K of their appeal the defendants contend that the trial was unsatisfactory. I wholly endorse this view. If fault for this circumstance is to be apportioned, it seems to me that the greater proportion should be ascribed to the conduct of the defence. Whilst I am satisfied that, on the evidence, the learned trial judge was entitled to come to the conclusion to which he did, including the finding of contributory negligence against which the plaintiff has appealed, I am satisfied that justice requires that the case should be re-tried on the true issues between the parties. I would, accordingly, allow both appeal and cross-appeal and direct a new trial on all issues.”