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GAZETTE
MWH
DECEMBER 1993
Liability for Accidents at Work:
The New Regime
By Ciaran O'Mara*
One of the "old reliables" in most
solicitors' practices is the action for
damages arising out of an injury
sustained in the work place. It is fair
to say that such litigation has been
one of the staples for our profession
for a century or more. It has been well
known that an employer has a duty
towards an employee to take
reasonable care for the employee's
safety. Although the courts in Ireland
have generally looked with favour on
employee plaintiffs, the employer's
duty is not an unlimited one and there
is plenty of judicial dicta to state that
an employer is not an insurer. In
Bradley -v- C1E
[1976] IR 217
Henchy J stated that "the law does not
require an employer to ensure in all
circumstances the safety of his
workmen. He will have discharged his
duty of care if he does what a
reasonable and prudent employer
would have done in the
circumstances".
In a similar vein, the Safety, Health
and Welfare at Work Act, 1989
provides in section 5 that "it shall be
the duty of every employer to ensure,
so far as is reasonably practicable, the
safety, health and welfare at work of
all his employees". As a result of both
case law and statute Irish lawyers
have been accustomed to pleading
employers' liability cases in the
context of a duty of care and of the
need to prove some form of
negligence against the employer.
Suddenly and with little fanfare
European developments have
completely changed the basis of
liability in such cases. Any solicitor
who does not plead the new European
legislation in litigation concerning an
accident at work is not only living in a
time warp but is also at risk of being
sued for negligence.
The Single European Act revised the
i original Treaty of Rome of 1957 with
Ciaran O'Mara
a view to completing the Single
European Market by 1992. It is often
forgotten that many other changes to
the original Treaty were included. One
of these was a new article 118A which
allowed for the implementation of a
safety and health programme to be
adopted by qualified majority voting.
As will be seen, in the space of a few
years the European Union has
effectively taken over the
development of the law in this area
from the Member States.
The first major step forward in the EU
Programme was in 1989 with the
adoption of the so-called "Framework
Directive" (89/39/EEC) "on the
introduction of measures to encourage
improvements in the safety and health
of workers at work". This directive
forms the basis for a series of more
specific directives to cover particular
sectors of employment such as
construction work or particular
subject areas of importance such as
visual display units. A copy of this
directive is just as essential to a
solicitor as, say, a copy of the Civil
Liability Act, 1961.
The Framework Directive covers all
sectors of activity, both public and
private. The only workers excluded
are the self-employed and domestic
servants (it should be noted in Ireland
that the Safety, Health and Welfare at
Work Act, 1989, applies to all
employees). The key provision in the
directive, relating to employers'
obligations, is to be found in Article
(5) which states "the employer shall
have a duty to ensure the safety and
health of workers in every aspect
related to the work". Note the absolute
duty on the employer which is thus
created. This is in contrast to the
existing Irish law to simply ensure
safety "as far as reasonably
practicable". Article (5) (3) goes on to
state that "the workers' obligations in
the field of safety and health at work
shall not affect the principle of
responsibility of the employer". In
other words, contributory negligence
by a worker would no longer appear
to be a valid consideration for a court
deciding a claim for workplace
injuries .
Article 5.4 of the Directive gave
Member States an option to provide
for the exclusion or the limitation of
employers' responsibility where
"occurrences are due to unusual and
unforeseeable circumstances, beyond
the employers' control, or to
exceptional events". It is vital to
remember that Ireland has not
exercised this option in the
implementing regulations, the Safety,
Health and Welfare at Work (General
Application) Regulations, 1993
(hereinafter referred to as "the Irish
Regulations") and that, therefore,
there can be no question of a re-entry
of the concept of reasonable
foreseeability by the back door.
The wording of the Directive takes
precedence over the wording of the
Irish Regulations as Community law
is always supreme : see the
Von
Colson
and
Morleasing
cases. The
Regulations should always be read in
conjunction with the Directive.
Likewise, pleadings should cite the
relevant Articles of the Directive as
well as the Regulations.
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