The Gazette 1988

GAZETTE

JANUARY/FEBRUARY

19

" 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.

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. 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 The Problem Steted Rafferty

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

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