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GAZETTE

JANUARY/FEBRUARY

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.

Cumisky & Cooke

m.i.a.v.i.

Auctioneers and Valuers

28, Lr. Baggot St., Dublin 2.

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