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employment? (2) Has the employee
waived his right to sue, under
section 34(1)(b)? (3) Is the em-
ployee gu i l ty of c o n t r i b u t o ry
negligence?
Some General Principles
A number of general principles of
law are well established, and have
some bearing on these questions.
It is clear, for example, that an
employee will not automatically be
held to have voluntarily assumed
the risk of an unreasonable danger
created by his employer merely
because it can be shown that he
subjected himself to that risk in the
knowledge that it was present.
Economic necessity and family res-
ponsibilities may mean that there
was no free waiver in such a case:
Smith -v- Baker,
[1891] A.C. 325,
Mcllhagger -v- Belfast
Corporation,
[1944] N.I. 37. On the other hand,
in the Supreme Court case of
Fiynn
-v- Irish Sugar Manufacturing
Co.
Ltd.,
[1928] I.R. 525, at 535,
FitzGibbon, J. noted that it had
" n e v e r been s u g g e s t ed t h at
knowledge is not a circumstance
from wh i ch acceptance may be
inferred, nor that if knowledge be
proved the question of acceptance
can be w i t hd r awn from the jury".
Under section 34 (1)(b), it is also
necessary that the acceptance
i nvo l ve s ome c ommu n i c a t i on
between the parties rather than a
"one-sided secret determination on
the part of the plaintiff to give up
his right of action":
O'Hanlon -v-
E.S.B.
[1969] I.R. 75, at 92 (Sup.
Ct., per Walsh, J.); but the issue of
the relationship between knowledge
and consent continues to require
resolution.
Most courts today would surely
accept the general principle that an
employer who negligently engages
in dangerous work practices —
s u ch as s u p p l y i ng d e f e c t i ve
equipment or organising an unsafe
system of work — should not be
permitted to " b u y " the waiver of
employees who are constrained by
economic necessity either to take
that job or face unemployment.
This is because the pressure on
these employees may be so strong
as to render their apparently free
choice an unfree one in fact. But if
we change the case to one where
the employer again engages in an
unsafe work practice but there is
no question of economic necessity
on the part of the employee — who
may be a rich young man or woman
in search of adventure — is it so
obvious that a defence under
section 34(1 )(b) would
necessarily
fail?
Laissez faire or Paternalism?
This brings us to a central policy
question, regarding the extent to
vyhich the constriction of the
volenti
defence over the past
c e n t u ry r e f l e c ts t he n a r r ow
function of protecting economically
weak employees, or the broader
f unc t i on of p r o t ec t i ng people
against exposing themselves to
risk. However much the conceptual
language of negligence law may
disguise it, the fact remains that
the issue is ultimately one of policy,
w i th possible solutions ranging
f r om a
laissez faire
approach
current many years ago (and
experiencing a revival in some
quarters today) to a paternalistic
approach which perceives law as a
useful agent in encouraging people
to have regard for their safety.
Legislation on seat belts and crash
helmets, backed by findings of
contributory negligence for non-
use
(Hamill-v- Oliver,
[1977] I.R. 73,
Sinnott -v- Ouinnsworth Ltd.,
[1984]
I.L.R.M. 5 2 3 ,
O'Connell
-v-
Jackson,
[1972] 1 Q.B. 270) are
examples of this latter philosophy.
If we turn to the hypothetical
case mentioned above, we will
i mme d i a t e ly see t h a t it is
s omewh at d i f f e r ent f r om t he
situation where an employer is
guilty of a negligent work practice.
In the hypothetical case the
only
negligence that may be alleged
against the employer is that he has
employed the employee knowing
that, on account of the employee's
particular physical condition, he will
run the risk of damaging his health
where the work he is to do is not
likely to cause any problem for the
other workers. The question thus is
the narrow one as to whether an
emp l o y er owes a d u t y to a
p r o s pe c t i ve emp l oyee not to
employ him where to do so is likely
to damage his health on account of
his particular frailty.
The "Egg-Shell Sku l l" Principle
The well-known "egg-shell skull"
principle does not answer the
question satisfactorily, since it
imposes liability for unforeseeable
injury attributable to the particular
physical condition of the plaintiff
only where the defendant was
guilty of negligence towards the
plaintiff:
Burke -v- John Paul & Co.
Ltd.,
[1967] I.R. 277. That principle
does not affect the question one
way or the other; if the employer in
our hypothetical case is guilty of
negligence, then of course the
" egg - s he ll s k u l l" principle is
capab le also of app l y i ng in
appropriate instances (though there
will be no need to invoke it in order
to find the employer liable); if,
however, the employer is not guilty
of negligence, then the plaintiff will
not be able to call in his aid the
"egg-shell skull" principle.
Negligence
A strong argument can be made
that employing a person known to
be at particular risk of injury to his
hea l th is i ndeed an act of
negligence. If we ignore for a
moment the
volenti
issue and
examine the question from the
standpoint of a third party, the
matter may become clearer. A
pedestrian who is run over by an
unconscious bus driver known by
the driver's employers (and the
driver himself) to be at risk of a
blackout will w i t hout any doubt be
ESSAYS IN
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ALEXIS
FITZGERALD
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