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GAZETTE
JANUARY/FEBRUARY
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" L i ght Wo r k"
— A Di lemma for Employers
The ques t i on whe t her an employer is neg l i gent if he emp l oys
a per son w h o is not capab le of do i ng t he j ob w i t h o ut risk t o
his hea l th raises i n t eres t i ng, but d i f f i cu l t, issues of po l i cy in
t he l aw of t o r t s. In t he present ar t i c le we w i l l exami ne some
of t he ma i n p r ob l ems.
The Rafferty Case
The question arose, but ultimately
was not resolved, in the Supreme
Court decision of
Rafferty -v- C. A.
Parsons of Ireland Ltd.,
[1987]
I.L.R.M. 98. There the plaintiff had
worked as a storeman for the
defendant company. He developed
a sore back, and consulted his
doctor, who gave him a note for his
employer requesting that he be
given light work. When the foreman
read the note, he told the plaintiff
that there was no light work
available for him and that if he was
not able to do the full work, there
would be no work for him. The
plaintiff, who required to work in
order to maintain his family, went
back to work, and later developed
further soreness in his back.
The plaintiff sued his employers
for negligence. At trial, D'Arcy, J.
wi t hd r ew the case from the jury.
The Supreme Court by a majority
of t wo (Finlay, C. J. and Henchy, J.)
to one (McCarthy, J.) affirmed.
The disposition of the appeal
was influenced by a number of
factors. The plaintiff's pleadings
had not clearly disclosed a case
based on the argument that the de-
fendants had been negligent in
allowing him to attempt to do his
normal work when he was known
by them to be fit only for light work.
There was no
s a t i s f a c t o ry
transcript or note of the evidence
at trial. Nor had the doctor's note
been adduced in evidence.
The majority, affirming D'Arcy,
J.'s withdrawal of the case, was
divided as to the grounds for doing
so. Finlay, C. J. was satisfied that:
" i t would be a wholly artificial
and unreal standard of care to
impose on employers who, on
the evidence, had adequate staff
to assist each other in loading
and unloading the vans and in
the transporting of the goods, to
hold them guilty of negligence
on the basis that they reacted to
a single application for light work
by one of their staff, even if
supported with a medical certifi-
cate suggesting that he was fit
for light wo r k, by s imp ly
informing him that they had not
by
Wi l l iam Binchy,
B.A., B.C.L., LL.M.
Ba r r i s t e r - a t - Law
got any and then took no further
action wh en he voluntarily
resumed his ordinary work and
kept at it for significant periods
for some years afterwards."
The Chief Justice regarded the
case as one involving " no
prima
facie
evidence of negligence
against the defendants", without
therefore having to address the
question whether the defendants'
negligence was redeemed by a
waiver from a willing plaintiff under
section 34(1)(b) of the Civil Liability
Act 1961. The reference to the
plaintiff's voluntary resumption of
his ordinary work is made, not in
the context of the
volenti
issue, but
rather in relation to its possible
ramifications for the defendants so
far as their alleged negligence was
concerned.
Henchy, J. disposed of the
appeal on a far narrower ground. He
considered that the evidence fell
short of showing that (as the
plaintiff alleged on appeal) the
defendants had required him to do
full work notwithstanding medical
certificates supplied to them which
showed that light work was all that
he was fit for. There was, said
Henchy, J., " no t h i ng more than a
request by his doctor that he be
given light wo r k ". Henchy, J.,
therefore did not have to decide
whether it would be negligence for
an employer to allow an employee
to attempt to do his normal work
when known to be fit only for light
work. But if this were to be held to
be the law, it would have to be
specifically pleaded, " s o that the
defendants could meet that case in
evidence and properly raise a plea
of contributory negligence and/or a
plea of
volenti non fit injuria".
McCarthy, J., dissenting, took a
d i f f e r e nt v i ew f r om t h at of
Henchy, J. on the question of
notice to the employers:
"Or d i na r i l y, in my view, a
certificate of fitness for light
work implies an unfitness for
other than light work; if it were
not so, such a certificate would
scarcely be necessary at all."
In McCarthy, J.'s view the case
should have been allowed to be
determined by the jury, w i th an
ancillary issue as to voluntary
a s s ump t i on of risk if
t he
defendants so wished.
The Problem Steted
Rafferty
t hus does not really
resolve the general issue touched
on by all the judges, though Finlay,
C. J. went furthest in determining
the question. It may be useful to
attempt to address the issue in
relation to a hypothetical situation
somewhat different from that in
Rafferty.
Let us assume a case
where the employee's physical
cond i t i on becomes such t hat
continued employment in his par-
ticular job is likely to lead to
damage to his health; let us assume
further that the employer is fully
informed of this fact, that he says
to the employee that he has no
safer work available, and that the
employee agrees to continue in that
emp l o ymen t. Three ques t i ons
arise: (1) is the employer guilty of
neg l i gence in c o n t i n u i ng t he
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