No Absolute Duty of Care Owed by Employers to Employees
Employers owe employees a common law duty to take reasonable care for their safety. This duty has been amplified by statutory duties that provide for the health and safety of employees in the workplace. The Safety, Health and Welfare at Work Act 2005, as amended, and the General Application Regulations, 2007 to 2016, oblige employers to do everything that “is reasonably practicable” to protect the health, safety and welfare at work of all employees.
In dealing with personal injury claims, the Courts have consistently held that there are limits to an employer’s duty of care. The law does not require an employer to ensure in all circumstances the safety of employees, and an employer will be deemed to have discharged their duty of care if s/he does what a reasonable and prudent employer would have done in the circumstances, see Keane -v- Dermot McGann Groundworks Ltd. [2018] IEHC 747.
An employer’s duty is not an unlimited one and an employer cannot be reasonably expected to provide a place of work, guaranteed to exclude any potential hazard no matter how remote a possibility, or how unforeseen it is. In Doyle v The ESB [2008] IEHC 88, Quirke J. held that ‘employers are not the insurers of their employees; they cannot ensure their safety at all times, and, are not required to do so’.
The Risk of Injury to an Employee must be foreseeable …
The Irish Courts have consistently held that an employer shall not be liable if the injury which the employee sustained is not the reasonably foreseeable result of the employer’s negligent conduct.
In McLoughlin v Carr t/a Herloes Bar [2005] IEHC 358 the plaintiff sued for personal injuries arising from an armed raid on a public bar in which the plaintiff was employed. The Court was satisfied that the event was so unique that the employer could not have foreseen such a risk. While noting the appalling nature of the incident and its devastating effect on the plaintiff, the Court held that this was not sufficient in itself to make the employer liable to pay compensation to the employee.
In Mansoor v The Minister for Justice [2010] IEHC 389, the plaintiff was a general medical practitioner and had provided medical services to An Garda Síochána. The plaintiff was requested to attend the Garda Station for the purpose of obtaining a blood or urine sample from a person who had been charged with driving while under the influence of alcohol. The driver was requested by the Gardaí to hand the urine sample he had provided to the plaintiff, but entirely without warning, he responded by throwing the sample over the plaintiff’s head.
The plaintiff brought an action for damages for post-traumatic stress disorder arising from the incident and alleged, inter alia, that the defendant was negligent as a result of exposing him to a risk of which they knew, or ought to have known. In dismissing the plaintiff’s claim, the Court held that the defendant’s duty to protect the plaintiff from foreseeable harm and risk was not breached and the actions of the driver were wholly unforeseeable and unpredictable in the extreme.
More recently, in Wilcynska v. Dunnes Stores [2017] IEHC 305, Mr Justice Barr dismissed a personal injury claim brought by a checkout till operative, on the grounds that an injury, whereby the plaintiff’s fingers were caught between a chair and a cashbox while decreasing the height of the chair, was not foreseeable to her employer, given the number of times the height of the chair would be adjusted in a given year. The Court held that “taking all relevant matters into consideration, the … accident was not reasonably foreseeable. It was an unfortunate accident, which occurred in very unusual circumstances. However, it was not one that was reasonably foreseeable to anyone looking at the system of work carried on at this workstation.”
In cases of breach of Statutory Duty, there must be a causal link between the breach of duty and the Injury sustained …
The fact that an employer is in breach of a statutory duty does not, of itself, entitle an employee to recover damages from an employer. An employee is only entitled to recover damages in respect of a breach of a statutory duty where s/he can reasonably establish a causal link between the actual breach of statutory duty and the injury sustained, see Fagan v Dunnes Stores [2017] IEHC 430.
In McLoughlin v Carr t/a Herloes Bar (considered above) Peart J. held that “the fact that the employer was in breach of a statutory duty to carry out a risk assessment, or put up a safety notice, or to provide training in matters related to security and so on, is not the end of the matter as far as the plaintiff was concerned. There must be shown to be a link between that breach and the injury suffered.”
The plaintiff had argued that his employer was in breach of a statutory duty under the Safety, Health and Welfare at Work Act, 1989 in failing to provide staff with adequate security training and failing to undertake the appropriate risk assessment. The Court held that no risk assessment would have thrown up as a possibility the event that occurred and lead to the plaintiff’s injuries.
Conclusion
An employer’s duty of care for the safety of employees only extends to those risks that are reasonably foreseeable and are also preventable. An employer will not be held liable for events that are unpredictable and beyond his or her control.
In cases where breach of a statutory duty gives rise to a personal injury claim, the breach does not automatically mean that a plaintiff will be entitled to recover damages against the employer. It is necessary for an employee to prove, on the balance of probabilities, that the breach of duty of the employer was causative or contributing factor to the plaintiff’s accident. Where the employer’s conduct amounts to a breach of a statutory duty, and where same is but a technical breach, there being no link between that breach and the injury suffered, no finding of liability will be made against the employer.
Employers must however take such steps as are reasonable and prudent in the all the circumstances to protect employees by following a vigilant and proactive approach towards the management of health and safety issues in the workplace and ensuring full compliance with health and safety legislation.
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