The Gazette 1988

JANUARY/FEBRUARY

GAZETTE

Nl Slander Se t t l ement

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.

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

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. • Law Magazine" of 27 November, 1987, with the kind permission of the publishers. Reprinted from "The

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