The Gazette 1993

GAZETTE

MWH DECEMBER 1993

Liability for Accidents at Work: The New Regime

By Ciaran O'Mara*

that the Safety, Health and Welfare at Work Act, 1989, applies to all employees). The key provision in the directive, relating to employers' obligations, is to be found in Article (5) which states "the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work". Note the absolute duty on the employer which is thus created. This is in contrast to the existing Irish law to simply ensure safety "as far as reasonably practicable". Article (5) (3) goes on to state that "the workers' obligations in the field of safety and health at work shall not affect the principle of responsibility of the employer". In other words, contributory negligence by a worker would no longer appear to be a valid consideration for a court deciding a claim for workplace injuries . Article 5.4 of the Directive gave Member States an option to provide for the exclusion or the limitation of employers' responsibility where "occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events". It is vital to remember that Ireland has not exercised this option in the implementing regulations, the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (hereinafter referred to as "the Irish Regulations") and that, therefore, there can be no question of a re-entry of the concept of reasonable foreseeability by the back door. The wording of the Directive takes precedence over the wording of the Irish Regulations as Community law is always supreme : see the Von Colson and Morleasing cases. The Regulations should always be read in conjunction with the Directive. Likewise, pleadings should cite the relevant Articles of the Directive as well as the Regulations.

One of the "old reliables" in most solicitors' practices is the action for damages arising out of an injury sustained in the work place. It is fair to say that such litigation has been one of the staples for our profession for a century or more. It has been well known that an employer has a duty towards an employee to take reasonable care for the employee's safety. Although the courts in Ireland have generally looked with favour on employee plaintiffs, the employer's duty is not an unlimited one and there is plenty of judicial dicta to state that an employer is not an insurer. In Bradley -v- C1E [1976] IR 217 Henchy J stated that "the law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances". In a similar vein, the Safety, Health and Welfare at Work Act, 1989 provides in section 5 that "it shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees". As a result of both case law and statute Irish lawyers have been accustomed to pleading employers' liability cases in the context of a duty of care and of the need to prove some form of negligence against the employer. Suddenly and with little fanfare European developments have completely changed the basis of liability in such cases. Any solicitor who does not plead the new European legislation in litigation concerning an accident at work is not only living in a time warp but is also at risk of being sued for negligence.

Ciaran O'Mara

a view to completing the Single European Market by 1992. It is often forgotten that many other changes to the original Treaty were included. One of these was a new article 118A which allowed for the implementation of a safety and health programme to be adopted by qualified majority voting. As will be seen, in the space of a few years the European Union has effectively taken over the development of the law in this area from the Member States. The first major step forward in the EU Programme was in 1989 with the adoption of the so-called "Framework Directive" (89/39/EEC) "on the introduction of measures to encourage improvements in the safety and health of workers at work". This directive forms the basis for a series of more specific directives to cover particular subject areas of importance such as visual display units. A copy of this directive is just as essential to a solicitor as, say, a copy of the Civil Liability Act, 1961. The Framework Directive covers all sectors of activity, both public and private. The only workers excluded are the self-employed and domestic servants (it should be noted in Ireland sectors of employment such as construction work or particular

The Single European Act revised the i original Treaty of Rome of 1957 with

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