The Gazette 1988

GAZETTE

JANUARY/FEBRUARY

19

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

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

ESSAYS IN MEMORY OF ALEXIS FITZGERALD

Cost: £15.00 plus £2.10 post & packing

Available

from: Law Society, Blackhall Place, Dublin 7. Tel. 7 1 0 7 11

48