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what are the prospects of the
courts' holding the employee to
have assumed the risk? We have
already mentioned the factors
wh i ch would be likely to affect the
courts in resolving this question. In
view of the fact that the defence of
volenti
has "virtually disappeared"
in emp l o y e r s' l i ab i l ty cases
(O'Hanlon -v- E.S.B.,
[1969] I.R. 75,
at 90 (Sup. Ct.,
per
Walsh, J.)), it
seems most unlikely that the courts
would find that the plaintiff waived
his right to sue. Even in a case
where the employee was acting
w i t hout any economic pressure
whatsoever to take the job, it is
probable that the courts would not
find a waiver. Indeed they might go
so far as to follow their own policy
in relation to cases of breach of
statutory duty involving employees
(see
O'Hanlon -v- E.S.B., at 90 (per
Walsh, J.)), as well as American
authorities in relation to common
law negligence (e.g.,
Barnette -v-
Doy/e, 622 P.
2d 1349 (Wyo. Sup.
Ct., 1981)), and hold that the
defence of
volenti
can have no
application in such cases. (It is
wo r th noting that in
Rafferty -v- C.
A. Parsons of Ireland Ltd.,
the
appellant conceded that no claim
could be made under the
Factories
Act 1955,
on the particular facts of
the case.)
Contributory Negligence
If we turn to the question of
c o n t r i b u t o ry neg l i gence, t he
position is again unclear. There is
a good deal of case-law to the
effect that employees who bring a
dange r ous s i t u a t i on to t he
attention of their employer should
not too readily be held guilty of
contributory negligence where they
continue in their employment even
though their employer does nothing
to remove the danger. Thus, in the
Supreme Court case of
Deegan -v-
Langan,
[1966} I.R. 373, a carpenter
injured by a nail of a type wh i ch
both he and his employer knew to
be dangerous was relieved of
contributory negligence in using
the nail since he had notified his
employer earlier of the dangers
involved. Walsh, J. considered that:
"bearing in mind their respective
p o s i t i o ns . . . it wo u l d be
unreasonable to hold that there
still remained an obligation upon
the employee to make further
representations about the matter
to the employer. In reality the
alternatives open to him were
either to do the job as he had
been instructed to do it or to
refuse to do it. He could not be
held gu i l ty of c o n t r i b u t o ry
negligence because he chose to
do the job he was directed to
do."
The position of the employee
who takes employment knowing
that it may harm him on account of
his particular state of health is
surely weaker than that of the
plaintiff in
Deegan -v- Langan.
Here
the employer is doing exactly what
the employee requests — namely,
employing him — in contrast to the
employer in
Deegan -v- Langan
who
failed to respond to the employee's
representations. Of course the
employee whose health raises
particular employment risks would
wish
to have a job wh i ch would
involve him in no health risks, but
the law will not translate that wish
into an obligation on the part of any
particular employer to employ him
on those terms. The most that it is
likely to do is to insist that the
employer,
if he chooses to employ
him,
should ensure that he is not
placed at risk to his health.
Concluding Observations
It is interesting to see how an
apparently straightforward issue
can raise such a range of legal
complexities. Although the relevant
principles are easy to state, the
problem lies in anticipating how the
courts are likely to apply them. The
problem is essentially one of
j ud i c i al policy, t o u c h i ng on
important political and philosophical
questions relating to freedom,
social welfare and the role of the
State.
The author
is a
Research
Counsellor with the Law Reform
Commission.
This article is written in a personal
capacity.
Auc t i on Apr i l 1988
(in Lots)
Irish and English Law Reports
Statutes, Acts, Digests, etc.
c. 1,500 Vols 1695 - 1976
Catalogue in Preparation £2 p.p.
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Nl Slander
Se t t l ement
A slander action brought against a
former President of the Northern
Ireland Law So c i e ty by an
apprentice solicitor, who is also a
convicted IRA member, was settled
in Belfast's High Court last week.
Mr. Bernard Tu r k i ng t on, a
prominent Belfast lawyer, had been
sued by Mr. Paul Graham, an
apprentice solicitor, for remarks
allegedly made by Mr. Turkington at
a general meeting of the Law
Society last January. The meeting
had been called to discuss legal
education and the selection of law
students by the Society. After a
one-day hearing before Mr. Justice
Nicholson, counsel for Paul Graham
announced that the matter had
been settled on terms endorsed on
counsel's briefs, and that no further
order was required.
On the first day of the hearing, an
application by Mr. Graham to have
the case heard w i t hout a jury was
resisted by Mr. Turkington and
rejected by Mr. Justice Nicholson.
A second application to have the
case adjourned because of public
feeling in the aftermath of the
Enniskillen bombing was also re-
jected. Paul Graham was originally
r e f used
r eg i s t r a t i on
as
an
apprentice solicitor by the Nl Law
Society in 1984 because of a past
conviction on IRA charges. In 1973,
aged 19, he was jailed for seven
years after being found guilty of
IRA membership and possession of
IRA documents.
On release from prison he went
to university, where he took an
Honours degree in Economics and
a Masters in Social Science before
deciding to become a lawyer.
However, the Law Society then
refused to register him as an
apprentice because of a regulation
which was thought to bar anyone
w i th a criminal record from ad-
mission. Mr. Graham then appealed
to Northern Ireland's Lord Chief
Justice, Lord Robert Lowry, for a
review of this decision, and in
1985, on the LCJ's direction, he
was permitted to register w i th the
Law Society, a decision wh i ch
caused some comment.
•
Reprinted
from
"The
Law
Magazine" of 27 November, 1987,
with the kind permission of the
publishers.
50