Tipp FM Legal Slot – 30th July 2013
Orlagh Wafer on Accidents At Work
Is there currently a high level of accidents in workplaces?
In 2012 the Health and Safety Authority (HSA) reported that 47 people died in Ireland as a result of workplace accidents; 21 of these fatal accidents were in the agricultural industry. These figures do not take into account the tens of thousands of people who are non-fatally injured in workplace each year.
Employers have a legal obligation to their employees and it is also in the employers’ financial interest to protect their employees as it is estimated that employers lose approximately €100million each year due to sickness and non-statutory leave.
What provisions are in place to protect employees?
There are a number of provisions in place; there is a common law provision which is dealt with by case law. In addition to the common law duties which an employer owes the Safety Health and Welfare at Work Act 2005 sets out a number of statutory duties. The Act requires that premises, equipment, systems of work and articles for use at work (including tools and chemicals) are all safe and without risk to the health of those using them. The Act also requires all employers to prepare a written safety statement for their workplace. This is basically an action programme which sets out how health and safety is managed in the workplace.
When accidents occur in the workplace do most people look for someone to be held accountable?
Yes, of course, victims, their families and those involved in one way or another typically look for someone to be accountable, but assigning responsibility is not always easy, particularly when a workplace accident occurs.
The duty and standard of care at common law is that an employer should act ‘reasonably and prudently’. The standard of care under the legislation is much higher and an employer is expected to act as reasonably practicable as possible and do everything that they reasonably can to prevent an accident.
Where an employee has an accident in the workplace, it does not automatically follow that the employer is liable for the injury suffered. Safety in the work place is not the sole responsibility of the employer. When an accident occurs it can be through negligence on the part of the employer, or on the part of the employee, or both may have contributed and in some cases – freak accidents can also occur where a set of circumstances collide which were unforeseeable and often these are described as ‘acts of god’.
In what cases can the employer be considered negligent?
An employer is required by law to take reasonable care for employees’ safety; however, the employer’s duty is not an unlimited one. The law does not require an employer to ensure, in all circumstances, the safety of employees, rather s/he will have discharged his duty of care if s/he does what a ‘reasonable and prudent’ employer would have done in the circumstances. Even where a certain precaution is obvious, in the interest of safety of the employee, there may be countervailing factors which would justify the employer not taking that precaution. It is also not enough for an employee to simply suggest his employer was negligent, s/he must actually prove s/he was negligent in order to receive compensation.
There are two main elements to proving negligence:
- That the act complained off was reasonably foreseeable; and
- That reasonable care was not taken to prevent the accident.
It is often the case that an engineer’s report will be required to support this element of the claim and to prove that the employer failed in its duty of care to his employee.
Is the care or duties owed by employers defined in the law?
The courts have developed a number of duties over the years, which are clearly outlined in the legislation. Employers have a duty to:
- Provide a safe place of work
- Provide competent co-workers so that employees are not at risk
- Provide a safe system of work which is planned and organised
- Maintain the procedures which are in place.
- Provide instructions, training, equipment and support to employees
Reported cases have also laid down some general guidelines which are useful but which are not exhaustive:
- The employer is not obliged to warn the employee of obvious risks
- The employer cannot foresee every risk that may possibly occur.
- An employer may be negligent by omission if he has forgotten to do something which a reasonable person would have done in the circumstances.
If an employee undertakes a task knowing it is dangerous, but he does not want to lose his job, what protection does the law offer?
If a person is dismissed for refusing to carry out work that is unsafe, it would amount to unfair dismissal and s/he would be protected under the provision of the Unfair Dismissals Act 1977.
Are there any time limits in terms of bring a claim as in some cases injuries may not manifest themselves immediately or may get worse over time?
Since 5th May, 2005, injured persons no longer have 3 years from the date of their injury within which they can bring a claim for compensation. The period has been reduced to 2 years.
If a person has had more than one claim will it be taken into by a judge or a tribunal when assessing damages?
It will be taken into account in a number of ways. In the Injuries Board application one of the questions asked is whether you have had a previous injury or claim in the past five years. The main reason it is asked is so that they can consider whether there is an overlapping injury from a previous injury.
Next Week – Occupational Stress
With the downturn in the economy, there has been a steady increase in the number of personal injury claims for bullying and harassment in the workplace so next week I will discuss the area of occupational stress.