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Employers’ And Occupiers’ Liability

In discussing employer and occupier liability, the point should be borne in mind that the trade union movement’s interest in safety, health and welfare at work is not focussed on suing the employer or occupier for damages after a workplace accident or injury. If this needs to be done Legal Benefit may extend to the injured or ill member if they qualify.  The main focus of the trade union movement is identical to that of Safety Representatives. The concern is to prevent accidents and ill-health occurring in the workplace by applying, on an ongoing basis, effective hazard identification and risk assessment in order to eliminate or reduce risks, and, if this cannot be achieved, to develop safe work practices, provide training and supervision, and – as a last resort only – to equip employee’s with the appropriate personal protective equipment (PPE).

Taking action against employers for injury or illness caused to employees should be done but the evidence is that it is, in general terms, not a major deterrent to poor safety, health and welfare at work practice. Too often, it is closing the stable door after the horse has bolted.  Better to seek prevention than compensation.

Civil Liabilities

Prior to the Civil Liabilities Act, 1961, if the employee contributed to their own injury – however slightly – they could not recover any damages at common law.

Employers’ Liability

Employers’ liability for workplace accidents and ill-health arises from the common law ‘duty of care’. The duty of care is outlined in detail in Chapters 2 and 31 above.  In civil proceedings for damages arising out of a workplace accident resulting in injury or ill health to an employee, an employer must show that they discharged this duty. This can be done by showing that all safety regulations and rules were in place and adhered to and that the employer did ‘everything reasonably practicable’ to ensure the safety, health and welfare of the employee(s) concerned.

How Can An Employee Prove An Employer Was Negligent?

For an employee to prove that the employer was negligent, there must be –

  • a duty of care between the parties;

  • failure by the employer to observe the required standard of care;

  • reasonably foreseeable damage suffered by the employee.

    What Is An Employee’s Contributory Negligence?

    Contributory negligence can arise when injuries sustained are the result of two causes operating at the same time –

  • breach of duty by the employer;

  • omission on the part of the employee to use the ordinary care for her/his own safety.

    Assessment of this can vary in accordance with the age, experience, disability, training or other factors relating to any individual employee concerned.

    If an employee behaves in a totally reckless way, an employer may carry little or no liability.

    Three possibilities thus arise –

  • employee totally negligent - no damages;

  • employer totally negligent – 100% damages;

  • both parties negligent – negligence is apportioned and damages will reduce by the percentage attributed to the employee.

    To show negligence – in part or in whole – by the employee, the employer must demonstrate contributory negligence.

    Personal Injuries Assessment Board (PIAB)

    The establishment of the Personal Injuries Assessment Board (PIAB) was announced in October, 2002. Under the slogan ‘driving insurance reform’, the PIAB will be a priority in legislation currently being drafted and a PIAB Implementation Group will report as soon as they can. An Interim PIAB has been set up and, after legislation is enacted, it will be a Permanent Board.

    The main motivation is to reduce the costs and length of time involved in pursuing personal injury claims which is impacting on the attendant costs of insurance and legal fees. The PIAB will assess cases and award damages if appropriate. The PIAB will be representative of the trade unions, employers, insurance industry and Health & Safety Authority (HSA).  Whilst broadly welcoming the concept of providing low cost, speedy access to claims settlements and reducing overall costs in industry, trade unions have some reservations that the PIAB may be seen by some interests as a way of reducing the costs of compensation. In short, to whatever limited extent the cost of accident compensation and insurance cover acts as an incentive to employers to improve the quality of their safety and health management, nothing should be done to lessen that.

    Statute Of Limitations And Accidents

    The Statutes Of Limitations, 1957 and 1991, provide that claims for personal injury as a result of negligence or breach of duty must be brought within three (3) years from the date of the accident or cause. This may be later if, in the case of an occupational injury for example, symptoms only manifest themselves well after the accident, event or exposure. In the case of exposure to asbestos, asbestosis or mesothelioma may only manifest itself twenty or more years after that exposure. In this case, the claim must be made within three (3) years of that date.

    The ‘date of knowledge’, contained in the Statute Of Limitations (Amendment) Act, 1991, refers to the date the employee first had knowledge of the following facts –

  • that individual had actually been injured;

  • that the injury in question was significant;

  • that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;

  • the identity of the defendant;

  • if it is alleged that the act or omission was by another person, then the identity of that person and the facts supporting the bringing of an action against that person.  This ‘knowledge’ would normally be supported by persons with medical or other expert knowledge and the injured party must have taken all reasonable steps to acquire such knowledge.

    State Occupational Injuries Scheme

    The Social Welfare (Occupational Injuries) Act, 1966 replaced the Workmen’s Compensation Acts. The Act provides for the payment of benefits to insured employees injured by an accident at work – an occupational accident – or suffering from a Prescribed Occupational Disease.

    What Is An Occupational Accident Or Prescribed Occupational Disease?

    An accident is an occupational one if it occurred in the course of employment – that is while

    an employee was doing something they were employed to do. The course of employment may

    last from the time of arrival at work to the time of leaving it. Accidents that occur in meeting

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    an emergency at work are also covered.

    Accidents due to the employee(s) ‘horseplay’ or misconduct by fellow employee(s) may be covered, provided the injured person is not at fault.

    Prescribed Occupational Diseases are those prescribed by the Minister. The term applies not only to the disease but the condition which is a result of the disease.T hey include brucellosis, byssinosis, carpal tunnel syndrome, and noise induced hearing lost, to name but four. A complete list is available from the Department Of Social Welfare or the Health & Safety Authority (HSA).

    What Entitlements Are Provided By The Social Welfare (Occupational Injuries) Act, 1966

    The Act covers all employees in employments insurable at PRSI Class A, D, J or M. Civil Servants recruited prior to April 1995 and insured at Class B may only qualify for limited Occupational Injuries benefits. The Act provides for a number of benefits which are –

  • Injury Benefit is payable to employees who cannot go to work as a result of an accident at work or a prescribed industrial disease. It lasts for a maximum of twenty-six (26) weeks from the date of the accident or development of the disease. If an employee is still unable to return to work at the end of 26 weeks, Disability Benefit may be claimed;

  • Disablement Benefit is a sum calculated in accordance with the percentage disablement –loss of physical or mental faculty. A medical assessment may be necessary to judge the degree of loss of faculty and the rate of Benefit is based on this. Payments are made on the basis of incapacity and will be paid whether or not an employee is able to work. Where attendance at work has not been affected by the incapacity, this benefit will be paid. If attendance is interrupted, this benefit will only be paid when Injury Benefit ceases.  Disability Benefit may then be paid in addition. Payment can either be a pension or a lump sum. Pension is payable if the disablement is 20% or more. It may be awarded for life or for a shorter period where recovery is expected. The lump sum is payable where incapacity is 20% or less. It will vary according to the length of time for which disablement is likely to remain. If it is for life, an employee may opt for a pension instead;

  • Unemployability Supplement is a weekly supplement that may be paid if the employee is not eligible for Disability Benefit. The employee must be receiving Disablement Benefit and be permanently incapable of work;

  • Constant Attendance Allowance is a weekly allowance for those so seriously disabled as to need someone to help in the home on a daily basis to provide for personal needs;

  • Medical Care costs, if incurred by an employee as a result of an occupational accident or prescribed occupational disease, will be paid from the Occupational Injuries Fund.  Claimable costs are those not covered by the Health Board or Treatment Benefit Scheme and include doctor’s visits and prescriptions, certain medical or surgical appliances and their replacement or repair, dental or optical treatment, certain qualified nursing at home, ambulance or certain travelling expenses to hospital. The cost of private or semi-private accommodation and treatment cannot be recouped;

  • Death Benefit is payable where an insured employee dies as a result of an occupational accident or disease. It is payable to the dead employee’s dependants. It may also be payable to the dependants of a person who was in receipt of Disablement Benefit of 50% or more at the time of their death, regardless of cause of death. The benefits are Widow’s/Widower’s Pension, Orphan’s Pension, Dependant Parent’s Pension and Funeral Grant.

    How To Apply For Occupational Injuries Benefits

    An employee injured at work or exposed to factors that may lead to disease or illness, should immediately record the event on Form OB 13. This registers the accident or occurrence with the Department Of Social Welfare and may prove significant evidence later on when the effects of the injury or disease actually manifest themselves.

    To find out more about Occupational Injuries Benefit Scheme contact Injury Benefit Section, Social Welfare Services Office, 157-164 Townsend Street, Dublin 2 –Tel 01 874 8444.

    Origin And Purpose Of The Occupiers’ Liability Act, 1995

    The Occupiers’ Liability Act, 1995 became law on 17 July, 1995. It provides that an occupier of premises owes a statutory duty towards three classes of entrant –

  • visitors;

  • recreational users;

  • trespassers.

    What are Visitors, Recreational Users & Trespassers?

    A ‘visitor’ means an entrant who is lawfully on the premises of the occupier – an employee, client or customer, contractor or delivery person.

    The duty owed to the visitor is to take reasonable care that they and their property do not suffer injury or damage by reason of any danger existing on the premises of the occupier. This is a standard ‘duty of care’ in ordinary negligence and may be affected by the negligence of the ‘visitor’.

    A lesser duty of care is owed to recreational users and trespassers.

    How Should Occupiers Warn Of Danger?

    The Act provides that there must be written notices that are simple, clear, reasonable, placed in prominent positions and carefully drafted to enable occupiers to restrict, modify or exclude their duties under the Act. Notices must be prominently displayed at entrances warning of danger or hazards, advising of the need for personal protective equipment for all entrants beyond that point, or indicating that a restrictive area lies ahead.

    What About Contractors?

    There is a legal duty under the Safety, Health & Welfare At Work Act, 1989 and the Safety, Health & Welfare At Work (General Application) Regulations, 1993, SI 44, for employers and occupiers to alert contractors and others entering their premises of the hazards they may face by providing them with copies of the Safety Statement. In turn, contractors must provide the main employer with copy of their Safety Statement. This ‘duty to co-operate’ is designed to facilitate the exchange of information and the briefing of both employees and contractors as to what hazards each may face from the other. Some safety, health and welfare regulations impose particular duties on employers and occupiers to display particular signage – for example, signs indicating the mandatory wearing of personal protective equipment beyond a certain point or that a fire, explosive, biological or radioactive hazard lie ahead.  If this is done, the occupier limits his liability for actions done by the contractor and the contractor similarly regarding the occupier.

    In the construction industry, the Safety, Health & Welfare At Work (Construction) Regulations, 2001, SI 481 impose specific duties on contractors at various stages from design to construction on all jobs. These Regulations – briefly outlined in Chapter 32 above – should be consulted.

    Should The Occupier Carry Insurance?

    Yes. The appropriate employer and public liability insurances should be in place.

    Accident Prevention Not Compensation

    Remember that trade unions are far more interested in accident prevention than accident compensation.

    Unlike wage claims, there is no retrospection on a person’s safety and health.




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