Today’s article looks at the case of Patrick J. Lynch .V. Binnacle Limited trading as Cavan Co-Op Mart, a recent decision that has important health and safety implications.

Case Name And Reference: Patrick J. Lynch .V. Binnacle Limited trading as Cavan Co-Op Mart, [2011] IESC 8

Court Or Tribunal: Supreme Court

Jurisdictions/Subject Matter: Warning to Employers on Duty to Monitor Safe Work Systems


Facts

This matter relates to an Appeal of a High Court decision which is sure to send a shiver down the spine of our male readers.

The appellant was employed as a yard man and drover for the respondent. On the 24th October 2003, the appellant passed by a Limosuin bullock in a small single pen in order to open a gate allowing the bullock to access the sales ring. Unfortunately, as the appellant passed behind the bullock, he suffered a direct kick to the scrotum and right testis, which gave rise to a haemorrhage, causing considerable injury to the appellant’s right testicle.

The respondent had a system of work in place whereby a second drover was to be positioned at the dividing pens to herd the cattle into two individual pens, and a third drover was to position himself in the vicinity of the weighbridge to release the cattle individually into the weighing area, prior to their entering the sales ring. However, on the day in question the other two drovers involved in the system of work with the appellant absented themselves to take care of their own business at the market, leaving the appellant to do the job alone.
High Court proceedings issued against the respondent in respect of the personal injuries sustained. However, Mr. Justice White dismissed the appellant's claim on the basis that the appellant was the author of his own misfortune and there was no negligence on the part of the respondent.


Determination

A three judge Supreme Court reversed the High Court decision on appeal. It was held that while the system of work was safe when three drovers were present, the system became unsafe in the absence of two of the drovers. The court was satisfied that the respondent was vicariously liable for the actions of the two absent employees even if the absences were unauthorised. It was known that employees absented themselves from work from time to time which rendered the system of work unsafe, which, in turn, resulted in the appellant’s nasty injury. Interestingly, the appellant was deemed to have a contributory negligence of 33% given his 33 years' experience on the basis that he failed to request one of the drovers to remain at work, he did not cease processing the cattle and he sought no assistance.


Legal Review

Vicarious Liability

One of the most significant lessons to be learned from this Supreme Court decision is that the principle of vicarious liability is alive and well. The Salmond Test was once again given a seal of approval by the Irish courts and I believe it is worth setting out the fundamental principle again:

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. But a master... is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes, although improper modes – of doing them”.

The doctrine remains very onerous on employers.

Safe System Of Work

An employer is under a statutory and common law duty to provide its employees with a safe system of work. In McSweeney v J. S. McCarthy LTD [Supreme Court unreported 28th January 2000], Murray J. emphasised that the provision of a safe system of work is incumbent directly on the employer and is not capable of being delegated.

Essentially, in this case, the employer had a safe system of work in place. Nevertheless, once the system was rendered unsafe due to the absence of two of the drovers, the employer bears the responsibility. The moral of the story is that it is not enough to simply have a safe system of work in place; what is required of an employer is to ensure that the system is controlled and supervised. An employer must take the additional step. It is not good enough to have a system in place if you fail to implement that system.

This Supreme Court decision is not particularly remarkable from the point of view of developing new law concerning the scope of vicarious liability. However, it serves as a strong reminder to responsible employers who have policies and procedures in place, to take the next step and ensure their effective implementation in the workplace.