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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,
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