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GAZETTE

JANUARY/FEBRUARY

19

able to sue the employers for their

negligence. Why should their

conduct cease to be negligence

once the question shifts to that of

their liability to the driver?

One answer to this question may

be that negligence is a concept to

be viewed in terms of individual

relationships rather than as being of

general social import. A person is

negligent to A, B, C and so on,

rather than to the world at large.

This issue was at the heart of the

famous decision of

Palsgraf -v-

Long Island Railroad Co.,

162 N.E.

99 (1928), and it also arose, less

starkly, in the Supreme Court case

of

McComiskey

-v-

McDermott,

[1974] I.R. 75. See McMahon &

Binchy,

Irish Law of Torts,

1 6 2 - 1 64

(1981). On this approach it would

be possible for a court, quite con-

sistently wi th logic, to hold that the

bus c omp a ny was gu i l ty of

negligence to the pedestrian while

not being guilty of any negligence

to their driver. The court could hold

that, in view of the particular

relationship between the employer

and employee, both knowing of the

emp l o y ee 's p r o p e n s i ty to a

blackout, the employer's duty of

care to that employee was of a

constricted nature, just as, in

McComiskey

-v- McDermott,

the

duty of the rally driver to his

navigator was held to be of a

different nature from that owed to

other road users. The duty to the

navigator, said Henchy, J., was

"particularised and personalised by

the circumstances of the case". It

was necessary in every case " t o

cons i der w ho is t he person

claiming to be owed the duty of

care, who is the person it is claimed

aga i ns t, and w h a t aré t he

circumstances".

Walsh, J.'s dissent should also be

noted. In his view, it was in-

appropriate and unconvincing to

prescribe differing duties of care

t owa r ds d i f f e r e nt road-users;

instead a general duty to drive with

due care towards all road-users

w i th whom one might come in

contact should be recognised and

implied.

The implications for negligence

law of

McComiskey -v- McDermott

have yet to be addressed by our

courts. A broad interpretation of

the majority's approach would

enable what formerly would be

treated exclusively in terms of a

volenti

issue to be restated in terms

of a constricted duty of care. The

negative implications for plaintiffs

of this approach need scarcely be

mentioned. If this approach were to

be applied to the employment of an

emp l oyee w i t h a pa r t i cu l ar

susceptibility to illness or injury,

where both parties are aware of

that susceptibility, it would be open

to the court to hold that, in view of

the circumstances, the " pa r t i-

cularised and personalised" duty

was not breached by the mere

employment of the employee. On a

narrow,

and

surely

more

c on v i n c i ng, i n t e r p r e t a t i on of

McComiskey

-v- McDermott,

the

case may be explained in terms of

categorical rather than completely

individuated duties. In other words,

the rally-driver/navigator relation-

ship would constitute a different

category of legal relationship than

that of the car driver

vis a vis

other

road users in general. Applying the

same approach to the employment

context, a court might well hold

that it should not treat the duty

owed by an emp l oyer to a

physically vulnerable employee any

differently than it would the general

duty of care owed by employers to

employees.

Some Downstream Implications

There is one important policy

aspect to the duty issue which is

worth highlighting since it may

make the courts very reluctant to

impose liability in negligence on

employers who employ physically

vulnerable employees. If the court

we re to impose l i ab i l i ty in

negligence in such cases, the

almost inevitable result would be to

encourage employers, as an act of

self-protection, perhaps at the

behest of their insurers to fire

employees who are not fully fit or

who may have certain health

problems in the future. It may be

argued that, if the continued

employment of these employees is

to be regarded as negligent, then

the discharge of the employees

could scarcely be considered to be

an unfair dismissal. The broader

implications of this development

give rise for some concern.

Voluntary Assumption of Risk

Let us turn briefly to the question

of voluntary assumption of risk. If

we accept for the sake of argument

that an employer is guilty of

neg l i gence

in emp l o y i ng a

physically vulnerable employee,

Submission of Ar t icles

for the Gazette

The Editorial Board welcomes the submission of articles

for consideration with a view to publication. In general,

the most acceptable length of articles for the

Gazette

is

3 , 000-4 , 000 words. However, shorter contributions will

be welcomed and longer ones may be considered for

publication. MSS should be typewritten on one side of

the paper only, double spaced with wide margins.

Footnotes should be kept to a minimum and numbered

consecutively throughout the text with superscript arabic

numerals. Cases and statutes should be

cited accurately and in the correct format.

Contributions should be sent to:

Executive Ed i tor,

Law Soc i e ty Gazette,

B l ackha ll Place,

DUBL IN 7.

49