Employers’ Liability in Irish Tort Law

Employers’ liability is one of the most heavily litigated corners of Irish tort, and almost no real claim is pleaded on a single basis. A workplace injury will usually be run simultaneously as common-law negligence, as breach of the Safety, Health and Welfare at Work Act 2005, and — where a co-worker’s wrongdoing is involved — as vicarious liability. Those routes are complementary rather than alternative, and a good answer works through all of them.

A personal duty that cannot be delegated

The starting point is that the duty runs from the employer to each individual employee. That is what makes it “personal”. It is also non-delegable, which is the practical sting: engaging a competent contractor, a safety officer or a supervisor to handle the risk does not discharge the employer’s obligation. In Lynch v Binnacle Ltd the employer was liable both for running an unsafe system and, separately, on vicarious principles for co-employees who abandoned their posts — a reminder that the two routes often run side by side on the same facts.

What the duty is not is a warranty of safety. Bradley v CIÉ Binding (IE) fixes the standard at what a reasonable and prudent employer would do, and Henchy J’s formulation is the one to quote whenever a problem question tempts you towards strict liability.

The four common-law duties

At common law the personal duty is conventionally broken into four heads. They are not four separate torts; they are four places to look for the breach, and naming the right one is what turns a vague answer into a precise one.

Competent staff

The employer must take reasonable care in selecting, training and — on an ongoing basis — supervising the workforce, and must act on a known dangerous propensity. In Elmontem v Nethercross Ltd Binding (IE) a manager’s knowledge of a chef’s violent history was imputed to the employer, which was accordingly liable. The limit is foreseeability: a wholly unforeseeable assault by a colleague does not engage the duty (see also Martin v Dunnes Stores [2016] IECA 85 IE).

Safe place of work

The employer must provide and maintain a reasonably safe workplace, including safe access and egress (Mulcare v Southern Health Board IE; McMahon v Irish Biscuits Ltd & Quinnsworth [2002] IEHC 15 IE). The head extends, carefully, to premises the employer does not itself control — off-site work and home working — though what is reasonable naturally shifts with the degree of control.

Safe system of work

This is the head that carries most claims. The method of work must be as safe as is reasonably possible in the circumstances, and it takes in instructions, supervision and provision for emergencies (Caulfield v George Bell & Co Ltd IE, Murnaghan J). Lynch v Binnacle Ltd is the classic illustration: no provision at all had been made for a lone drover. In Coffey v Kavanagh Binding (IE) the absence of a risk assessment was itself enough to render the system unsafe — a point worth remembering, because it links the common-law head directly to the statutory duties below.

Safe plant and equipment

The employer must provide and maintain reasonably safe plant, machinery and protective equipment. Here the statutory overlay can be more demanding than negligence: in Everitt v Thorsman Ireland Ltd Binding (IE) Kearns J treated the equipment regulations as imposing a virtually absolute duty, so that even a latent defect the employer could not have discovered founded liability. That is tempered by Thompson v Dublin Bus Binding (IE), which insists that regulations impose strict liability only where they are very clearly drafted to do so.

The statutory layer: the 2005 Act

The Safety, Health and Welfare at Work Act 2005 replaced the 1989 Act and now supplies the statutory duties. Section 8(1) requires every employer to ensure, so far as is reasonably practicable, the safety, health and welfare of employees. Section 8(2) then spells out twelve specific duties, covering safe systems of work, the design, provision and maintenance of the workplace, access and egress, plant and machinery, the management of the undertaking so as to prevent improper conduct, and information, training and supervision. Section 12 extends protection to non-employees at the workplace. Sections 19 and 20 require risk assessments and a safety statement, and section 13(1)(a) imposes a matching duty on the employee to take reasonable care for their own safety.

Two questions follow. First, is a breach civilly actionable? Breach of a statutory duty founds a civil action only where the statute so allows; section 60 of the 1989 Act expressly excluded it, but the 2005 Act contains no equivalent bar, and in McWhinney v Cork City Council Binding (IE) Barniville J held its provisions actionable in personal-injuries proceedings. Second, how much does “reasonably practicable” do? A great deal. It is defined in section 2(6) as taking all due care by putting the necessary protective and preventive measures in place after identifying hazards and assessing risks, unless further measures would be grossly disproportionate. As McGovern J observed in Keegan v Dunnes Stores Binding (IE), strip those words out of section 8 and you would be left with strict liability — so the court weighs the employer’s actual training, cleaning and maintenance systems against what was practicable.

Calibrating the standard to the employee

The standard is not fixed at a single level for everyone on the payroll. It flexes with the individual employee’s age, knowledge and experience — the point made by Griffin J in Dalton v Frendo Binding (IE). A young or newly-hired worker may need instruction and supervision that an experienced hand does not. The relationship is also mutual: Berber v Dunnes Stores Binding (IE) confirms a duty of trust and confidence running in both directions, which matters when the alleged harm is psychological rather than physical.

That psychological branch — workplace stress and bullying — has its own tests and its own leading authorities (Maher v Jabil Global Services Ltd, Berber, Quigley v Complex Tooling and Moulding and Ruffley v Board of Management of St Anne’s School). It is a large enough topic to be treated separately, and it is covered in full in the paid module.

The main defences

There is no single knockout defence in an employers’ liability claim; there are three ways of cutting it down.

The first is the standard itself. Because the employer is not an insurer (Bradley), an accident that a reasonable and prudent employer could not have prevented attracts no liability — the injury alone proves nothing. The second is “reasonably practicable” under the 2005 Act: an employer who identified the hazard, assessed the risk and put proportionate measures in place has met section 8, and further measures that would be grossly disproportionate are not required (s 2(6); Keegan).

The third, and the one that most often bites, is contributory negligence. Section 13(1)(a) of the 2005 Act obliges the employee to take reasonable care for their own safety, and a finding of contributory fault reduces damages proportionately. But the Irish courts apply it with a firm sense of who owed what. As Walsh J put it in McKenna v Meighan Binding (IE), the workman’s knowledge of the danger is not in itself contributory negligence. And in CT v Dublin Bus IE Cross J weighed a worker’s momentary inadvertence against the employer’s duty not to run an unsafe system in the first place. Expect a percentage reduction, not a complete answer to the claim.

Related Tort Law notes: duty of care in negligence · occupiers’ liability · all free Tort Law notes.