Employer does not owe an employee an unlimited duty to prevent injury.

The duty an employer owes to an employee in order to protect that employee from injury does not amount to an unlimited one. The Irish Court of Appeal discussed this issue in the recent case of Martin v Dunnes Stores. In the case a checkout operator who had left her till to replace a 10kg bag of potatoes, injured her bicep lifting the bag. In the High Court Mr Justice O’Neill found that the defendant employer was liable and the plaintiff was awarded damages. The defendant company appealed. The defendant contended that the plaintiff chose not to seek assistance from her colleagues and that she had received sufficient training that she chose to ignore. The Judge in the High Court accepted that the plaintiff had  been well trained in the theory of manual handling and lifting and that the courses provided for her by the defendant were “adequate”, he nonetheless went on to conclude that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products.

The Court of Appeal upheld the defendants appeal.

The Court referred to the decision in  Bradley v. C.I.E. [1976] I.R. 217 at 223, where Henchy J. stated as follows:-“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.”

The Appeal Court acknowledged that the  duty owed by an employer  varies depending upon the knowledge and experience of the employee. Further, the more hazardous the work in which the employee is involved the more stringent the duty of the employer to protect the worker. However, their duty is met once they take reasonable and practicable steps to avoid accidental injury.

The relevant legislation is The Safety, Health and Welfare at Work Act 2005, provides at s. 8(1) thereof that:

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.” What the words “reasonably practicable” mean are defined in s. 2(6) of the 2005 Act, namely:-

For the purposes of the relevant statutory provisions, ‘reasonably practicable’, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work”.

The Appellate Court reaffirmed that it is bound by the decision of McCarthy J in Hay v. O’Grady [1992] I.R. 498 thus, findings of fact made by the trial judge which are supported by credible evidence cannot be displaced by the appellate court. This is because the appellate court, unlike the trial judge, does not enjoy the opportunity of seeing and hearing the witnesses. It held “However, insofar as inferences are drawn from circumstantial evidence, an appellate tribunal is in just as good a position as the trial judge to reach its own conclusions”.

The Court of Appeal  held that critical to their conclusions on the appeal is the extent of the onus placed on an employer to take due care for the safety and welfare of their employee.  In the context of the case at hand it said  “it is reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: see Quinn v. Bradbury [2011] IEHC per Charlton J”. 

In the decision delivered by Justice Irvine the court held that it was “quite satisfied that for an employer, such as the defendant in this case, it reasonably discharged its obligations to the plaintiff by training her on a regular basis as to the principles of safe manual handling which it was then up to her to deploy when faced with any given task. The fact that the training in respect of safe lifting techniques may have been done using empty cardboard boxes or boxes with handles cannot, on the evidence, be considered to amount to a failure on the part of the defendant to meet its common law and statutory obligations to the plaintiff. Its obligation was to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards, which it did”. 

The Court felt that “while it is impossible not to have great sympathy for the plight and predicament of the plaintiff, the law on the matter is, I fear, very clear”.

The decision of the High Court was reversed and the Appeal upheld.

Read the decision here

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