Negligence and Statutory Duty
Where there has been a workplace accident, the employer may be liable to compensate the employee on the basis of negligence and / or breach of a specific statutory duty. Both are often claimed together or in the alternative.
It is likely that the more specific health safety and welfare at work obligations may be the basis of a claim for breach of statutory duty. Formerly, it was provided that general duties were not by themselves a basis for a civil claim for breach of statutory duty. This position has been reversed so that the general duties may also found a claim. In any event, the employer’s obligations under the law of negligence are measured by reference to the general and specific duties under the legislation.
Many obligations under health, safety, and welfare legislation impose absolute obligations including, for example, the requirement for safe equipment. It may be that equipment breaks through no fault of the employer, in which event the employer may be liable for breach of this strict unconditional duty, notwithstanding that the employer could not have reasonably have foreseen or prevented the matter.
The Factories Acts, which developed from the 1840s, provided specific obligations to reduce the risks posed by dangerous machinery and conditions. The Acts were extended in scope on many occasions and were consolidated and re-enacted in 1901 and 1955. Conditions of employment legislation was enacted for shops in the 1930s. Health safety and welfare legislation was extended to offices and similar premises in 1958.
The Factories Acts were replaced by the Health, Safety and Welfare at Work Act 1989. This provided a single body of modern rules applicable to all workplaces. The National Authority for Occupational Health and Safety was established with powers to enforce the legislation. The legislation was reformed and re-enacted in 2005. The NAOHS became the Health and Safety Authority.
European Union law has required the introduction of general and sectoral rules as common EU-wide harmonised standards of safety in the workplace. A significant body of health safety and welfare at work legislation derives from EU directives. The purpose is to provide a level playing field in workplace safety in the single market.
Formerly, there were different schemes of legislation for factories, mines, offices, shops and construction. Different industries were subject to differing and typically detailed rules. A vast body of detailed statutory rules applied. Most legislation was aimed at factories and industrial sectors. Some sectors were not regulated at all. The enforcement of the legislation was undertaken by Departmental inspectors in some cases and by the Local Authority in other cases.
Following the Barrington Commission in 1983, a modern general Health Safety and Welfare Act was passed. This followed the approach taken in the UK in 1974. The legislation applies to all workplaces. It provides general duties and fewer specific duties. It created a single Health and Safety Authority, which enforces by administrative action and prosecution. It places emphasis on risk management, prevention and employee participation.
Civil Liability for Breach of Statutory Duty I
Separate from civil liability for negligence, there may be civil liability for breach of statutory duty in some cases. When a civil claim is taken, it is commonly brought both on the basis of the employer’s alleged negligence and failure to meet specified statutory obligations under health safety and welfare at work legislation.
Where a statute protects a specific class of persons, the court may interpret that this thereby creates a duty, which may be the subject of civil liability if breached, causing personal injury or damage. In the employment setting, the courts will readily find that breach of a statutory obligation which is for the benefit of an employee, gives rise to a civil action for breach of statutory duty.
Civil Liability for Breach of Statutory Duty II
The 1989 Safety, Health and Welfare at Work Act specifically provided that breach of the general duties (but not necessarily the specific duties) would not have themselves confer a right of action for civil compensation for damages caused. The legislation also provided that where specific obligations were created by regulations, they were presumed to be capable of being the subject of a civil claim for compensation, unless they otherwise provided.
The 2005 legislation has not re-enacted the above provision. Accordingly, it would appear that the breach of both general and the specific statutory duties of employers may now be readily held to be the subject of its claim for breach of statutory duty.
The statutory duties themselves embody and amplify the general common law duties. Accordingly, the issue of whether the statutory obligation gives rise to a direct right of action for breach of statutory duty will have no practical consequences in many cases.
Statute Informing Common Law Duty
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. This is in addition and independent of the possibility of a claim based on breach of statutory duty. In many cases, there will be both breach of the duty of care in negligence and breach of statutory which, each of which provides a basis for liability.
The standards set out in health, safety and welfare at work legislation are likely to be followed in determining the extent of the duties owed by an employer to employee, for the purpose of a claim in negligence. The general obligations (under tort principles and /or an implied employment contract term) to create a safe system of work are fleshed out by the details of health, safety, and welfare at work legislation.
Even if the court interprets the statute so that breaches of the particular duty do not give rise to a claim in itself, the breach may be partial or total evidence of a breach of the duty of care in negligence. The statutory rules are likely to mark the standard where they deal directly with the subject matter in question.
Nature of Duties
Health, Safety and Welfare legislation creates general and specific obligations. The more specific statutory duties usually place obligations on the employer in more absolute terms than common law principles. They tend to place organisational responsibility on the employer to achieve a particular circumstance and result, which will usually be required to apply, even where there is contributory negligence on the part of the employee himself.
The legislation provides that it is the duty of an employer to ensure insofar as reasonably practicable, the safety, health and welfare at work of all of its employees. It also provides a number of further general obligations and numerous more detailed obligations.
The legislation requires a through a risk assessment in respect of all work operations and activities. The failure to undertake the statutory risk assessment and failures to implement steps to mitigate risks identified, are likely to constitute negligence as well as breach of statutory duty.
Employees have duties 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 imposes obligations on employees. This includes the duties 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;
- having regard to training and instructions, make correct use of substances or articles provided by the employer for their protection, including protective clothing and equipment;
- 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 had 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.
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