The Monthly Wrap up in the following areas of litigation:
- Employers Liability
- Occupiers Liability
- Accidents and Injuries in the workplace
Recent Case Law in the Area of Litigation
1. Thompson -v- Dublin Bus & Anor– this case relates to the liability of employers and the duty that they have towards the safety of their employees
in this case the plaintiff was a bus driver employed by Dublin Bus. while driving his bus route for his employer the bus’s pneumatic suspension malfunctioned on a speed ramp which caused “a loss in cushion effect” causing an injury to Mr Thompson’s neck and back.
the case was heard in the High Court where the judge found that:
1. there was no evidence to suggest that Mr Thompson was driving too fast
2. There was sufficient evidence to establish that a proper regime of inspection and maintenance was carried out by Dublin Bus;
3. The Construction of the ramps conformed to the best practice and;
4. Mr Thompson did suffer personal injury as a result of the suspension failure which had resulted in an on-going physical deficit
Despite the fact that he referred to a sufficient inspection and maintenance regime and an absence of blameworthiness on the part of the defendant he found in favour of the plaintiff.
The decision went to the Supreme Court who looked to the EU Law an held that the EU framework Directive does not require member states to impose a “no fault liability on employers.”
the Supreme Court referred to the EC Commission -v- United Kingdom on the framework Directive and said it was clear from that decision that It was open to Member States to impose more stringent requirements that those to be found in the directives for the protection of workers
However, the Court found that had it been the case that the Regulations transposing the Directives were intended to go further than the Directives (by imposing strict liability on an employer) one would have expected the Regulations to be expressed clearly in such a way as to make it obvious that they were intended to go further than the minimum health and safety requirements. As the Directives had been transposed in the same terms, the Court held that the Regulations were not seeking to impose a greater obligation than that set out in the Directives.
The SC then looked at the Regulations themselves and the wording thereof and made the following conclusions;
1. That the employer’s obligation was to provide work equipment that was suitable for the work to be done.
2. That it was not always possible to ensure that work equipment could be used without any risk at all.
3. Consequently, it held that Regulation 19(c) provided that the obligation in those circumstances was to ensure that appropriate measures were taken to minimize any such risk.
Accordingly, Justice Dunne held that Dublin Bus took the necessary measures to ensure that the work equipment could be used without risk to the safety and health of its employees and insofar as the work equipment failed on this occasion, that it was clear that Dublin Bus took the appropriate measures to minimise the risks involved. Therefore, the High Court decision was overturned.
the Judge stated that “Dublin Bus tookthe necessary measures to ensire that the work equipment could be used without risk to the safety and health of its employees and insofar as the work equipment failed on this occasion it is clear that Dublin Bus took the appropriate measures to minimise the risks involved…”
Although this case seems to shift the balance in favour of the employer it in fact only means that a breach simpliciter will not suffice to ground a PI action if the employer has taken measures to minimise the risk associated with the use of equipment.
The duty on an employer is not absolute, it is not strict liability i.e. the courts now want some level of blameworthiness.
Therefore, if an employer can demonstrate that they did all they could to protect an employee’s health and safety with regards to their work equipment, then they may
2.Fitzgerald -v- South Dublin County Council- this case relates to Occupiers Liability and covers common areas such as green areas and recreational spaces found in housing estates for example.
A 9 year old Plaintiff playing in the common area of housing estate. There was broken glass in the grass. the plaintiff fell on this and sustained a laceration injury
The plaintiff’s mother gave evidence that for some considerable time prior to the date of t he accident, she had regularly phoned the relevant department of the defendant Council to complain of problems in relation to the triangular-shaped open space. In essence her complaints related to anti-social behaviour which included, amongst other things, young people sitting up drinking on low walls which bounded the open green space. her complaints also related to rubbish being left around and in t he vicin ity of the open space . She accepted that the defendant Council cut the grass but in relation to the presence of rubbish her view was that, more often than not, the rubbish encountered would just be pushed up against the side of t he boundary wall rather than removed.
The case was dismissed because there was no evidence upon which the court could come to the conclusion that the defendant was guilty of common law negligence.
Section 4 (1) of the Occupiers Liability Act of 1995: states that an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty –
(a) not to injure the person or damage the pro perty of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person
The plaintiff was involved in a ‘kick-about’ with some friends. They had erected a temporary goal by using some clothes. What else was this if it wasn’t a recreational activity within the meaning of the Act? The plaintiff was a recreational user of the open green space and as such the defendant’s duty towards him was that as set out in Section 4.
No suggestion in this case that the defendant intended to injure the plaintiff. Accordingly, there being no liability at common law or under s. 3 of the Act, to place an onus on the Defendant to avoid the presence of glass etc would, in fact, require constant observation and inspection of the very highest degree and one which could not be suggested as being necessary or required .”
The court is satisfied that the system of management and maintenance of the open green spaces devised and employed by the defendant prior to and at the time of the accident was reasonable and entirely appropriate for what was a general recreational area.
The expense and burden which would be placed on a local authority, such as the defendant, in protecting members of the public including children – from dangers on open green spaces created by anti-social or miscreant behaviour through discarding broken bottles or the like or otherwise, would be nothing short of immense not to mention impracticable and, in my view, intolerable.
Anti-social behaviour by its very nature is un likely to be affected by the erection of notices or the placement of refuse bins. That the defendant could be required to inspect what in this case would be over 4,000 acres of open green space more than once or at best twice in a week- never mind maintaining and cleaning such an area at any shorter interval – would neither be realistic nor reasonable. A balance has to be struck between what is reasonable and practicable in terms of maintenance and safety of open green spaces and the desirability of making such spaces available for the enjoyment of the public.
Accidents in the workplace
People are often apprehensive about making work injury claims due to the fear of losing their jobs or because they might upset an existing working relationship with the ir employer. Although the law protects people who are injured at work from being penalised or threatened with dismissal for making work injury claims, it does not always alleviate the fear of an awkward workplace confrontation on their return, or the potential for being jobless when employment is hard to find.
It is worth remembering that any work injury claims settlement is paid by your employer’s public liability insurance company, so you should not be concerned about your fellow employees suffering financially due to making a work injury claim
what are the key duties employers have towards their employees:
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, t raining, equipment and support to employees- many cases arise because employess do not receive adequate training for their jobs .
How much compensation could someone who has been injured at work expect?
If the employer is found negligent or liable for the injury- compensation can range from large amounts for catastrophic injuries to more modest amounts for more minor ones such as recoverable back injury or simple bone fractures. In many of these cases there may also be a loss of earnings element covering past and future loss of earnings.