The Gazette 1988

GAZETTE

JANUARY/FEBRUARY

19

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,

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.

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

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