Standard Required in Negligence
The duty applies as between the particular employer and the particular employee. What the duty requires will depend on the circumstances. The nature and extent of the duty may vary with the employee’s age, knowledge and experience. Higher standards of care are required of employers, where the employee has less experience, is disabled or has particular needs.
In each case, the question is whether the employer has failed to take reasonable care, whether by act or omission. This question may be broken down into subsidiary questions appropriate to the circumstances of each case.
In some cases, the risks and dangers may be those arising from the particular workplace, physical environment and its organisation. The issues that arise in such cases are similar to those arising in occupier’s liability cases. In other instances, the accident may arise due to activities, work activities so that the position is more analogous to the common claim in negligence arising from an incident or accident.
Significance of Statutory Duties
A wide range of legislation imposes specific duties on employers. This includes, in particular, health safety and welfare at work legislation. In many cases, what is required by the law of negligence will be fulfilled by reference to the statutory requirements. However, this will not necessarily be the case, and the general common law principles apply concurrently.
The Courts have been willing to consider general health safety and welfare legislation obligations as a benchmark for measuring the standard of care required of the employer. Even where specific statutory duties are not interpreted to create duties which are enforceable in civil claims, they may, nonetheless, define the standard of care required for the purpose of liability for the tort of negligence at common law.
There are many instances where health safety and welfare at work legislation creates absolute obligations, breach of which will either constitute negligence in itself or will give rise to liability for breach of statutory duty if loss or damage (usually personal injury) is thereby caused to an employee or another.
Proof of Standard
Industry practice is an important factor. The failure by the employer to adopt a particular practice may become obvious in hindsight after a particular accident has exposed the risk of failing to do so. In determining the employer’s duty of care, what industry practice and/ or health, safety and welfare legislation prescribe to be done in the particular circumstances, is highly material. Failure to comply may be highly probative or conclusive evidence of negligence/breach of duty.
In an employer’s liability case, expert evidence is commonly offered as to the requisite standards and requirements that apply in the particular circumstances. The statutory standards themselves are matters of law and are cognisable by the courts. Evidence may be adduced as to what is reasonable practice and industry practice in the context by experts and consultants.
In civil claims arising from workplace injuries, whether by way of breach of statute or negligence, expert evidence may be required as to what is the appropriate standard in the circumstances. The Health and Safety Authority or the UK HSE booklets and guidance may be of assistance. Numerous technical standards have been published by standards bodies. Ongoing standards have been developed at European Union level. It may be applicable in particular cases.
Employers are vicariously liable for the actions of their employees, within the scope of their employment. This includes liability for acts which are outside of what is permitted by the employer, but which is within the scope of the employment.
What is in the course of and within the scope of employment, is dependent on the circumstances. The use of an employer vehicles wholly outside of work is unlikely to be within the scope of the employment. However, the scope of employment is wider than merely specific client or customer work, during conventional work hours. Depending on the particular employment and circumstances, it may be wider.
Where an accident or injury occurs as a result of a practical joke or horseplay, the employer may, or may not be vicariously liable. In some cases, it has been held that the prank was wholly outside the scope of employment.
There are limits to vicarious liability. Where the employee acts unreasonably or in significant excess of his authority, the employer may not be vicariously liable.
An employer may avoid liability if it can show that the person whose negligence caused personal injury, was not an employee for whom it was responsible under the principles of vicarious liability. It might be in a position to show that the negligent acts did not arise in the course of employment.
Extent of Duty
The employer’s duty of care extends beyond physical injuries to psychiatric injury. An employer may be liable in negligence to an employer in respect of bullying and work-related stress. This liability may arise where the employer has failed to take reasonable steps to deal with the emerging signs of which it is aware, where such steps which would have avoided the injury or loss or limited its extent.
If the type of loss or injury is not foreseeable at all, then the employer is not responsible, even if it is negligent and even it is liable for other types of loss. This is because the loss or injury is too “remote.” Once the particular type of injury is foreseeable, then even of a greater injury than might have been foreseeable ensues, the employer / employee is liable for the full loss.
In accordance with ordinary principles of negligence, the defendant is not usually liable for pure economic loss incurred by the claimant, in the absence of the assumption of a duty of care. It is likely that in the small number of cases where this becomes an issue, that the courts will more readily find that an employer has undertaken a duty of care to its employee.
An employer may owe a duty of care in relation to his employee’s private property. The employee’s goods in the workplace commonly include cash, personal possessions and valuables, motor vehicles and other means of transport.
The extent of the duty depends on the circumstances. Where the employee’s goods are damaged or stolen, the employer may be liable in negligence for failure to exercise due care.
An employer may have a higher duty of care to employees in particular circumstances in respect of loss, damage or theft to their goods, than would apply to non-employees in the same situation. An employer may be negligent in not preventing third-party action such as theft.
Broadly speaking, the courts do not appear to apply as strict a standard as applies in respect of personal injury. The employer is not usually liable where despite the employer’s reasonable security measures, the employee’s goods are stolen.
Property damage arising in the course of or in consequence of a personal injury will be readily recoverable. If the employer is liable in respect of the personal injury, then he will be liable in the same way in respect of consequential loss of property.
Generally, an employer may not delegate its common law or statutory duties, so as to avoid them. This includes, in particular, the many statutory duties which are expressed in strict terms. Where statutory duties require an employer to take reasonable care, the duty to ensure that reasonable care is taken, remains with the employer, notwithstanding delegation.
The employer will usually retain direct responsibility, notwithstanding that he has entrusted management and control of the premises or the particular work setting to others. Even where an employee is seconded to work for another employer on a temporary basis, the employer’s general duties remain, although they may be less.
An employer is liable for the negligence of independent contractors whom it engages to carry out his duties on his own premises for works which might normally be done by the employer’s own employees or agents. There is particularly so if the negligence would be discoverable by reasonable inspection.
Apart from this principle, the employer may be liable in negligence if he selects an incompetent contractor or fails to supervise the work adequately.
In cases where the duty may not be delegated, the employer usually remains responsible or jointly responsible with the third party to whom it has delegated its duties. The third party and the employer may be each concurrently liable for negligence and / or breach of duty in these circumstances.
The common-law requires proof of “causation”. This requires that the employer’s fault or breach of duty causes the employee’s loss and damage. The employees must prove that, but for the employer’s breach of duty, the personal injury would not have occurred.
Proof of causation may be a serious obstacle in some cases. It may be shown that where was a breach of duty, but while it might be such as to cause the particular injury or damage, it may not be possible to prove this.
For example, exposure to a particular hazard might be alleged to lead to a particular disease, but there may not be a demonstrable scientific link. It might be so that the employer breached duty by failing to take particulars steps, but the relevant accident or incident might have nonetheless occurred.
The breach of duty may, for example, relate to the particular workplace arrangements, the non-provision of plant and equipment or inadequate training and procedure. This and many similar circumstances may lead to difficult questions of conjecture as to what would or would not have happened if the duty had been complied with.
There may be extraneous causes. Measures and steps which ought reasonably to have been taken, might not have been such as to have prevented the accident or incident. For example, the employer may not be liable if it can prove as a matter of probability, that had protective equipment been furnished, it would not have been worn.
The Court will ultimately determine on the balance of probabilities, whether the accident or the other loss or damage would have occurred if the relevant steps or measures had been taken. In some cases, the court will use common sense and make its own inferences. In other cases, scientific evidence of a causal link might be required.
Some occupations are inherently dangerous. Some jobs are undertaken in inherently dangerous environments. However, the employer’s duty of care is not displaced.
Where an operation is high risk in nature, the onus is on the employer to take care to avoid or at least, minimise the risk. This is the case, notwithstanding, that the occupation concerned such as that of a soldier or security guard, carries a greater level of risk than other occupations.
The employee may be obliged to accept a higher degree of risk given the employer’s inability to reduce and / or eliminate all dangers and risks that apply in the circumstances.
It must be shown that the breach of duty by the employer has caused the injury concerned. The employer may be liable where the injury is the foreseeable consequence of the employer’s failure to take due care.
Security / Military
A duty of care applies to military operations and other dangerous employments. Security firms have been found liable to employees on account of inadequate systems.
In a number of cases where negligence was claimed on the basis of military orders in situations of emergency, the Minister of Defence was found not to be negligent where swift decisions were necessary in the agony of the moment. The courts allow the military authorities a degree of latitude in emergency circumstances. The fact that the decision taken was erroneous did not constitute negligence.
Nonetheless, the courts have been willing to find, that even military authorities can be liable in negligence where inadequate steps have been taken to deal with the soldier’s safety. A duty of care has been held to subsist, even in times of war and armed conflict. A number of cases have involved the failure to provide adequate protection for persons in vulnerable location and positions.
Protection from Others
The failure to protect employees, including security guards from the dangers of criminal attacks from the public has been held to be negligent in circumstances where inadequate security measures were taken to provide for the employer’s safety. The risk and corresponding duty are higher when the employee is carrying or holding cash and is vulnerable to targeted attacks.
Issues of causation and remoteness frequently arise in such cases. If the employer can show as a matter of probability that even if a particular step or precaution have been taken, it would not have changed the outcome, then it is not liable. The employer may be able to show on the balance of probabilities, that had a particular precaution been taken, a lesser or another type of injury would have been suffered.
Employees may be liable in tort, where as a result of their negligence, they cause loss or damage to others, including their fellow employees or other persons in the workplace. Although the employer will generally be vicariously liable for the actions of the employee, the employee also remains personally liable to a person who has suffered loss or damage in consequence of this negligence.
Most commonly, the employer only will be sued. It may be an implied term of the employee’s employment contract that he would be entitled to an indemnity from the employer in respect of liabilities incurred to third parties in the course of employment.
If this is not express or implied, then it is arguable that the employer would be entitled to an indemnity from the employee in respect of its vicarious liability. This may be given practical effect where the employee has insurance, in his own right, for example in the case of motor insurance.
There are special court rules applicable to most personal injury cases, including those involving occupational injury. They are designed to make the procedure more efficient than that applicable in other proceedings. Pre-trial hearings and conferences are required, with a view to shortening trials and the pre-trial process.
Occupational injury claims, must be first referred to the Injuries Board. This stops the clock on the period for commencement of litigations. It restarts when the Injuries Board releases the case and civil proceedings may then be commenced.
Claimants in a personal injury case must deliver copies of reports and statements within three months of serving the notice of trial. They must deliver the details of their witnesses, statement of special damages, statement of losses, social welfare benefits, reports, and copies of the statements by their witnesses. There must be an exchange of a medical evidence prior to the trial.
The court has powers to encourage the parties to settle. It may adjourn the proceedings to facilitate a settlement. Certain evidence may be given in sworn documents, rather that in person. The courts are to have regard to the Book of Quantum, published by the Injuries Board.
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