“Duty of care” is a phrase that you will hear bandied about often.
What does it mean, though? What is the extent of that duty of care?
What happens if an employer is in breach of that duty?
Let’s take a look, shall we?
It is well-settled law that an employer owes a duty of care to his/her employee(s). The employer’s duty is not an unlimited one though, and he is not an insurer.
He will have discharged his duty if he does what a reasonable and prudent employer would have done in the circumstances.
Therefore for an employee to succeed in a claim of negligence he must prove how and why the employer was in breach of his duty of care.
Courts have not laid down one single duty of care but have recognised that it will vary in the circumstances depending on the employee’s age, experience, knowledge, and the risks inherent in the particular type of work.
The Courts have laid down general guidelines as to the extent of the duty of care:
- There is no obligation to warn of obvious risks
- Reasonable care is what is required of the employer
- An argument that an employer was guilty by omission will be closely scrutinised on the basis that it is easy to be wise with the benefit of hindsight.
Employers’ Liability in Negligence v Breach of statutory duty
The negligence action depends on whether the employer acted unreasonably or not. A claim for breach of statutory duty depends on the precise terms of the particular statutory provision and what is the duty set out. The Safety, Health and Welfare at Work Act, 1989 and 2005 looms large in this context.
An employee can sue for either or both of these causes of action.
Is the employer only liable for physical injury?
No, provided a duty of care can be established an employee who suffers a psychiatric/psychological injury or pure economic loss as a result of the employer’s negligence should be entitled to compensation.
An employer who is or ought to be aware that an employee is working under such pressures as to cause his mental health to break down owes a duty to take reasonable steps to deal with the problem. (Please refer to this article and this article for more information about non physical injuries in the workplace).
There is a reluctance of the courts to accept that the employer is liable for an employee’s property damage where there is no physical injury/damage. Therefore, it is clear there is an obligation on the employer in respect of physical injury but not property damage on its own.
Assessment of Employer’s Liability
The scope of the duty of care is generally assessed under 4 headings:
- The provision of competent staff
- The provision of a safe place of work
- The provision of proper equipment
- The provision of a safe system of work.
It will need to be shown that the employer was aware of the staff incompetence. It may also be the case that failing to provide competent staff may fall under the heading of failing to provide a safe system of work through inadequate supervision of employees.
Safe Place of Work
The employer must ensure a reasonably safe place of work. The employer’s obligation is not to make accidents impossible, and it will be “a matter of degree and fact” in every case involving premises not under the employer’s control, for example, a worker visiting a house as a home help.
Again, the employer has a legal duty to take reasonable care to provide proper appliances/equipment and maintain them in a proper condition.
However, where the employer supplies a standard tool with a latent defect which he had no means of discovering, the employer may avoid liability in negligence if the employee is injured.
Safe System of Work
There is no definition of a safe system of work and safe will mean “as safe as reasonably possible in the circumstances”. This will obviously depend on the particular job.
Lifting weights would be a significant part of a safe system but at the employer only needs to take reasonable care to withstand a negligence claim the 3employhee will probably have greater protection from the various statutory provisions/regulations made concerning health and safety, lifting weights etc.
Ensuring a safe system in work would certainly involve proper training, depending on the job eg lifting weights, turning patients etc.
From an employer’s perspective, it is not enough to merely provide a safe system but he must ensure that the system is adhered to.
The provision of a safe system can cause particular difficulties for the defence forces and security firms.
Employer’s Negligence Must Have Caused the Injury
It is not enough to show the employer was negligent; the injured party must show this negligence caused the injury complained of and the injury was reasonably foreseeable.
The contributory negligence of the employee will be a factor in assessing any case but in an employment situation it will be the employer who will be setting the standard of care. Also, the junior status of an employee may prohibit him from complaining and an employee’s desire to get on with the job may be praiseworthy rather than amounting to contributory negligence on his behalf.
Voluntarily Assumption of Risk
It used to be a defence that the employee voluntarily assumed the risk; however, this defence has practically disappeared in cases of common law negligence.
The employer’s duty of care will be discharged if he does what a reasonable and prudent employer would have done in the circumstances.
If he has not done this he may be liable for an injury arising from that failure, provided the negligence caused the injury.