Common Law Duties

Employer’s Liability

The ordinary principles of negligence apply to workplace injuries and occupational diseases.  The employer’s duty to take care is not usually an absolute duty. It is a duty to take reasonable care. Issues may also arise in relation to whether an employee’s injuries could not have been reasonably foreseeable.

There are some instances of absolute duties arising where health and safety legislation creates a statutory duty, breach of which is a tort/ civil wrong giving rise to a claim for damages. Generally, however, the employer will only be liable, if he has not acted as a reasonable and prudent employer would have done in the circumstances. Even in the case of a statutory duty, the breach will commonly inherently involve fault on the part of the employer.

The employer may be liable for its own failures and for those of its other employees. The principle of vicarious liability applies in the usual way. The employer will generally be responsible for the negligence and breach of the duty of fellow employees.

Elements of Negligence in Employment

The employee must prove that the damage was caused by the employer’s failure to take reasonable care for his health and safety or by the employer’s other breach of duty. There are four principal duties on the employer for the purpose of the law of negligence.

• the employer should provide a safe place of work;
• the employer should provide a safe system of work;
• the employer should provide proper equipment;
• the employer should select proper and competent staff.

What is required by the duty to take reasonable care for the safety of employees depends on the nature of the employment and the circumstances. There must be a causal link between employer’s negligence and breach of duty and the loss or damage caused. Loss or damage is a necessary element of the claim.

Safe Workplace I

The employer is in control of the workplace. The workplace must be safe. The employer’s duty to provide a safe place of work creates duties in relation to the state, condition and operation of the employer’s premises. The duty applies to both the workplace and to its means of access and egress.

This duty supplements the positive duties under health, safety and welfare legislation to undertake a thoroughgoing risk assessment of the workplace and to act on foot of it. The duty is not absolute, and it may be impossible to prevent all accidents. Nonetheless, the duty is high are requires positive action and continuing vigilance.

Safe Workplace II

The employer usually has control of the premises, which of itself, places significant duties on it as an occupier. As an employer, it will have enhanced responsibility and will be subject to a significantly higher duty than apply to mere occupiers. The occupier’s liability criteria do not apply in this context.  The more limited “occupier’s” criteria for liability do not apply in relation to employers.

Employers cannot limit their liability to employees by notices under the Occupiers Liability Act. The Occupiers Liability Act provides that it does not limit or affect any enactment or rule of law in respect of an employer’s duties to their employees.

Although employers are not obliged to make accidents impossible, they must thoroughly inform themselves of workplace dangers and the risks that they pose to the safety of their employees. They must take positive steps to eliminate or remove those risks.

Duty to take Positive Steps

There is a duty to take positive steps to ensure the safety of the workplace.   Defects which are known or ought reasonably to have been known must be remedied.  The employer must make the premises as safe as reasonably possible. This positive common law supplements and is informed by the requirement to make and implement a thorough workplace risk assessment.

It is not sufficient to simply warn the employee of dangers in the workplace and do no more. An employee is not entitled to assume that an employee will always act in his own interests and take due care for his health, safety and welfare. Positive action must be taken to achieve and maintain workplace security.

The employer is expected to foresee lapses in care and circumstances which could cause danger, notwithstanding that they are avoidable and largely or entirely attributable to the employees’ negligence. The courts are reluctant to attribute any or significant contributory negligence to employees in relation to workplace accidents.

Duty Regarding Third Party Premises

The workplace includes everywhere where the employee works. This could be on a third party’s premises where a job is done.  Employees have been held liable for failure to assess dangers on a third party’s premises, which may reasonably have been anticipated.

There may be negligence in sending an employee to work in another premises or place where there are inadequate safety standards, even though that other premises is not under the control of the employer. The employer may be liable for the negligent assignment of the employee to the place concerned if he has or is deemed to have knowledge (as may be the case under the risk assessment requirements) of the dangers and risks at the place concerned.

Sending an inexperienced employee into a place known to be dangerous place may be negligent. Sending an experienced person to the same place, may not be negligent, all things being equal. Everything will depend on the circumstances.

Duty to Outworkers

The issue of a safe workplace commonly arises in the cases of out workers and healthcare workers, who enter other person’s homes. In one instance, the health authority was not held liable for injuries sustained by a health-care worker in entering a patient’s home, where the claimant had found the premises to be safe for many years before.

The High Court has held that An Post was potentially negligent in exposing postmen to back injury in delivering letters in low letter boxes. It had failed to secure regulations on post box height do so. However, as training had been received in relation to the issue, An Post was held not to be negligent in the particular circumstances.

An employer may owe some duty to care to an employee who works from home. This extent of this duty will depend on the circumstances. It will usually be limited to strictly work related risks.  Health Safety and Welfare at work legislation usually requires a risk analysis on the homework environment.  Safety equipment may be necessary.

Safe System of Work

The employer must take reasonable care to ensure that a safe system of work is provided and maintained. What is a safe system of work will depend on the circumstances.  The system of work must be safe so that that accidents injuries and illnesses which can reasonably be avoided, are avoided.

The employer must devise and implement a safe system of work.  The system of work must be as safe as is reasonably possible in the circumstances. The organisation and methods of working ought to be thought through and planned.

Where the work involves particular danger and risks, appropriate steps must be taken to eliminate or at least minimise them.  The required measures may vary from giving warnings, to taking specific measures to ensure the control or removal of the risks. Even if a procedure is of long-standing vintage, it may carry obvious risks.

The duty includes a responsibility to provide regular training and proper systems. Failure to provide adequate training can constitute an unsafe system of work.

Safe Systems

The safe system refers to the totality of the means and procedures by which the work is undertaken. What is required for a safe system of work will depend on the circumstances and what is appropriate to the particular workplace.

The following are some examples of what has been commonly found to constitute an unsafe system of work.

• failure to provide scaffolding;
• unstable scaffolding;
• failure to fence machinery;
• failure to fence a particular area;
• failure to provide facilities which lead to an employee taking a riskier means of access;
• the inadequate handling of dangerous materials;
• requiring an employee to drive a dangerous vehicle or improperly loaded vehicle;
• requiring work to be undertaken work in areas with slippery floors;
• requiring an employee to undertake a dangerous task without adequate protections;
• unseaworthy ships;
• undertaking dangerous work without training;
• requiring a person to work at heights without a safety net.

Lifting

The lifting of excess weights, in particular over an extended period, is a notorious source of personal injuries. The handling of weights has been regulated by statute for many years so that there is likely to be both negligence and / breach of the statutory duty in respect of inappropriate loads and handling.

A common element of such claims is the alleged failure to provide sufficient training so that the employee can work safely. This may occur, in particular, where the employer has failed to provide any or adequate training in relation to proper techniques for lifting.

The requirements for nurses and others to lift patients unaided or insufficiently trained has been found to be negligent where back injuries thereby ensued. The use of techniques for lifting, which are demonstrated to be inadequate or outdated, may constitute negligence.

Third Party Premises

The obligation to provide a safe system of work continues where employees are working off-site on a third party’s property, such as in the building industry. Employers have been held liable for failure to assess organisational risk and dangers on a third party’s premises which could have been reasonably anticipated.

Difficult issues may arise in relation to the employer’ duty of care in cases where an employee is subject to assault by a third-party. If the employer has not exercised due care in exposing the employee to this risk, then the failure to take reasonable steps to avoid it, is likely to be negligent.

Even if there are no reasonable steps which the employer could have taken to prevent the particular assault, it might be nonetheless negligence in itself to have sent the employee to a particular setting or location, which exposed him to an undue risk of assault.

Safe and Proper Equipment I

The employer must take care to ensure that proper equipment is provided. It must be in proper condition and must not be such as to cause danger or risk. The failure to provide or the provision of defective, equipment is negligent.

The equipment provided must not expose the employee to unnecessary risks. It must be maintained in good condition and working order and safe condition. Employees must be properly trained properly in the use of equipment and its manner of working.

Equipment must be maintained in proper condition. The employer may breach its common law duty of care where it has become or should otherwise have become aware of defects or wants of repair and has failed to maintain the equipment.

Safe and Proper Equipment II

Employers may be liable for failing to inspect, repair, and maintain workplace equipment. Accordingly, where there is a fault in equipment, which could have been discovered with due care, the employer’s common law duty of care may be breached by the failure to do so.

The duty to provide safe workplace equipment is not absolute.  Defects which are not discoverable by reasonable examination are usually outside the scope of the duty.  However, if an employer has been notified that equipment is defective, it is likely to be held liable, if it takes no steps to reduce the risk. Many employers have been held to have breached their duty, where they have ignored complaints about poor equipment.

The duty of care may be breached by the failure to provide proper equipment at all. Liability has been imposed on employers who have failed to provide safe and proper equipment (including safety equipment) that could reasonably have been provided.

Duty to Provide Protective Equipment

Protective clothing or equipment may be necessary for the employee to carry out his duties safely. The failure to provide the necessary safety and protective equipment is an obvious breach of the duty. There is extensive health, safety and welfare legislation, dealing with personal protective equipment. Many of the duties are in absolute / unconditional terms. Failures of compliance are likely to constitute a breach of duty, and/or negligence.

The famous army deafness cases, provide an illustration of this principle. The failure to provide hearing protectors led to extensive liability to numerous former Defence Forces personnel in respect of loss of hearing. In other cases, the failure to provide fire-fighting apparatus, causing or contributing to death and personal injury, was held to be negligent.

Liability arising from Defective Equipment

The fact that plant or equipment has been manufactured by another does not necessarily absolve the employer from its duty of care. The employer may have strict liability in some cases under health safety and welfare at work legislation. The common law duties in relation to safe plant, safe place of work and safe system of work are said to be the least capable of delegation.

Some courts have taken the view that the nondelegable nature of some employer’s obligations means that it is not possible to rely on manufacturers, even in the case of faulty goods or materials. However, this view has been criticised.  Other cases have supported the view that provided the employer takes reasonable care in the selection of the equipment and the contractor, then its duty is satisfied, and the question of a non-delegable duty does not arise.

Duty to Select Competent Employees I

An employee who is incapable of performing a particular task properly may thereby cause loss or damage to his colleagues. His fellow employee who is injured may have a claim based both on vicarious liability and on the negligence of the employer relating to the competence of the employee who has caused the loss or damage.

If an employee is injured as a result of the incompetence of a fellow employee who has not been adequately trained or instructed, the employer is usually liable. This may arise by reason of breach of this duty and/ or by reason of the employer’s vicarious liability for the actions of other employees.

Duty to Select Competent Employees II

The employer must select proper and competent fellow employees. The employer has a duty to train them and maintain their competence. The employer may be deemed to be aware of the inadequacies of the claimant’s fellow employees when their shortcomings and incapability have become apparent in the past.

This duty is in addition to the employer’s vicarious liability for the acts and omissions of its employees. Claims of negligence in relation to the selection of competent employees may overlap with claims of negligence in supervising the operations of the workplace and with vicarious liability.

The ground is less commonly relied on in modern times, given vicarious liability and the abolition of certain common law doctrines which formerly impeded employee claims, including, in particular, the notorious doctrine of common employment.

Knowledge of Fellow Employee’s Propensities

The employer must usually be shown to have been aware or to have been deemed to be aware of the incompetence of fellow employees. This may be proved by specific incidents illustrating the employee’s awareness of incompetence, bullying or horseplay.  The employee who has caused the accident may have been involved in similar incidents, to that which caused the accident.

Many claims arise from so-called play-acting or “horseplay” which goes wrong, thereby causing an injury to a fellow employee. It may be difficult in some cases to prove that an employer could have detected or apprehended the possibility of such behaviour.

Where similar incidents have come to the employer’s attention, it may be negligent in failing to take action to prevent re-occurrence. It is necessary to show that the breach of duty caused the loss or damage.

Employers have been held liable for bullying, harassment and even sexual harassment by employees, where they ought to have been aware of the risks due to a known propensity and past behaviour. Alternatively, such claims have been made and sustained on the basis of failing to provide a safe system of work.