Supreme Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IESC/2015/S22.html
Cite as: [2015] IESC 22
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Judgment
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THE SUPREME COURT [Appeal No. 231/2010]
[High Court Record No. 2007/5400P] Denham C.J. Murray J. Hardiman J. McKechnie J. Dunne J. BETWEEN VINCENT THOMPSON PLAINTIFF/RESPONDENT AND
DUBLIN BUS/BUS ÁTHA CLIATH FIRST NAMED DEFENDANT/
APPELLANT AND
SOUTH DUBLIN COUNTY COUNCIL SECOND NAMED DEFENDANT Judgment of Ms. Justice Dunne delivered the 5th day of March, 2015 The plaintiff/respondent (Mr. Thompson) is a bus driver employed by the defendant/appellant (Dublin Bus). South Dublin County Council is the local authority with responsibility for the construction and maintenance of the public road at Kiltipper in County Dublin. No issue arises in this appeal against South Dublin County Council. Background Findings of fact
(b) There is sufficient evidence to establish that a proper regime of inspection, maintenance were carried out by the first named defendant. (c) The construction of the ramps which had been undertaken by the second defendant conformed to the best practice. (d) The plaintiff did suffer personal injury as a result of the suspension failure which has resulted in an ongoing physical deficit.”
Dublin Bus has appealed from the decision of the learned trial judge finding that there was a statutory duty on the part of Dublin Bus in respect of the safety of equipment provided for the use of its employees which had not been discharged. In essence, the question to be determined in this appeal is whether the Regulations applicable in the circumstances of this case impose absolute duty on the employer in relation to the safety of equipment provided for the use of its employees. The Regulations
(a) the necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health (b) in selecting the work equipment, account is taken of the specific working conditions, characteristics and hazards in the place of work having regard to the safety and health of the employees and any additional hazards posed by the use of such work equipment; (c) where it is not possible fully to ensure that work equipment can be used by employees without risk to their safety or health, appropriate measures are taken to minimise any such risk; (d) where the use of work equipment is likely to involve a specific risk to the safety or health of employees - (i) the use of such work equipment is restricted to those employees required to use it; and (ii) in cases of work involving repairs, modifications, maintenance or servicing of such work equipment, the employees concerned are competent to carry out such work; (e) the necessary measures are taken so that employees have at their disposal adequate information and, where appropriate, written instructions on the work equipment; and (f) information and instruction referred to in paragraph (e) contains at least adequate safety and health information concerning - (i) the conditions of use of work equipment (ii) foreseeable abnormal situations, and (iii) the conclusions to be drawn from experience, where appropriate, in using such work equipment; and that such information and any such written instructions are comprehensible to the employees concerned.”
(i) the provisions of any relevant directive of the European Communities relating to work equipment which is applicable; and (ii) the minimum requirements laid down in the Fifth Schedule, where the provisions of no other such directive apply. (2) It shall be the duty of an employer to take the measures necessary to ensure that throughout its working life work equipment is kept, by means of adequate maintenance, at a level such that it complies with the provisions of paragraph (1). (3) The requirements of the Fifth Schedule shall apply having regard to the provisions of this Part and where a corresponding risk exists for the work equipment in question.” Legislation and Directives Article 5 of the Framework Directive sets out general provisions. Article 5(1) provides as follows:
Member States need not exercise the option referred to in the first subparagraph.”
In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question. (2) Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimize the risks.”
Paragraph 2 of the annex states as follows:
Except where necessary for certain control devices, control devices must be located outside danger zones and in such a way that their operation cannot pose any additional hazard. They must not give rise to any hazard as a result of any unintentional operation. . . ..”
(2) Except where necessary, control devices shall be located outside danger zones and in such a way that their operation cannot cause additional hazard, and cannot give rise to any hazard as a result of any unintentional operation. . . ..”
The fact that Article 5(4) of the Framework Directive makes provision for the exclusion (or limitation) of employers’ responsibility in certain circumstances, for example, where occurrences are due to unusual and unforeseeable circumstances, could lead to the inference that unless the Member State made such provision, an employer would have absolute liability in respect of occurrences which interfered with the health and safety of workers. Nevertheless it should be observed that the Recitals to the Framework Directive contain the following provision:
Regulation 19(1)(a) imposes the duty on employers to ensure that
As pointed out in the written submissions of Dublin Bus the focus of Regulation 19 and 20 is somewhat different. Regulation 19 deals with the suitability of equipment provided to employees while Regulation 20 is directed to the compliance of work equipment with prescribed standards. In that context, Regulation 20 provides that the requirements of the Fifth Schedule are applicable. Of particular relevance in the context of this case is Clause 7 of the Fifth Schedule which provides:
I have already set out the findings made by de Valera J. in the course of his judgment and his conclusion that Regulation 19 appeared to impose an absolute duty on employers in respect of the safety of equipment provided to employees. His conclusion in that regard was based on the decision of Kearns J. in Everitt v. Thorsman Ireland Ltd. [2000] 1 IR 256. Having referred to Regulation 19(a) and to Regulation 20 and what is described inadvertently as Regulation 20(7) but is in fact Clause 7 of the Fifth Schedule, he observed as follows:
‘Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employer, these Regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without a remedy. As Mr. Justice O’Flaherty pointed out an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.’ In these circumstances while I accept that the first named defendant carried out a proper system of inspection, maintenance and repair and that no blameworthiness attaches to it, it has a statutory duty which has not been discharged and therefore the plaintiff is entitled to succeed in his claim against the first defendant.”
The view from Europe
44. That argument cannot, however, be upheld. It is apparent from the legislative history of Directive 89/391, and in particular from the joint statement by the Council and the Commission recorded in the minutes of the Council meeting of 12 June 1989, that the insertion of such a clause was suggested in order to resolve the problems that formulating the employers’ duty to ensure safety in absolute terms would have raised in the common-law systems, bearing in mind the obligation on the courts concerned to interpret written law literally. 45. Against that background, the refusal to insert a clause comparable to the disputed clause in Article 5(1) of Directive 89/391 cannot suffice to justify an interpretation of that provision to the effect that the employer is subject to a form of no-fault liability in the event of accident. 46. Such an interpretation cannot be based on the scheme of Article 5 of Directive 89/391 either.”
88. Basically, those Member States pointed out that, in the field of the safety and health of workers, British and Irish courts, unlike courts in the civil-law systems, have no margin of discretion in interpreting written law. Consequently, if the duties incumbent on employers contained in the proposed directive were worded in absolute terms, the application in the common-law countries of the requirements of the framework directive would have been made unduly more severe. They therefore proposed introducing into the relevant provisions of the proposed directive a flexibility clause, such as the ‘so far as is reasonably practicable’ clause, which had already appeared in the so-called ‘first generation’ directives.”
92. It follows that, even in the light of the arguments based on the legislative history of the framework directive, it is difficult to attach to the provision contained in the first subparagraph of Article 5(4) the meaning that the Commission wishes to attribute to it. 93. Finally, it is necessary to point out in passing that the Commission’s argument seems also to encounter limitations in the legal basis of the framework directive, since it is not in fact clear whether on the basis of Article 118a of the Treaty — which merely provides for the adoption, in the form of directives, of ‘minimum requirements for gradual implementation’ — the Community legislature was empowered to undertake harmonisation of the liability regimes in force in the Member States.”
101. In that context, I agree with the parties that this definition must be established in the light of all the provisions of the framework directive, and, in particular, Article 6 thereof, which defines the employer's general obligations, although it seems to me possible to derive some material indicators from the wording of the text of Article 5(1) itself. 102. First of all, it seems to me clear that that provision requires the person subject to the duty to take positive action, consisting in the adoption of measures designed to pursue the objective of protecting the safety and health of workers. 103. Secondly, since the duty in question consists in ‘ensuring’ that this interest is safeguarded, those measures must be appropriate and sufficient for that purpose. In other words, in view of the wording of Article 5(1) of the framework directive, the duty which that provision places on the employer requires, in my view, the adoption of all necessary measures to ensure the safety and health of workers in every aspect related to their work. 104. That finding is further confirmed by the first subparagraph of Article 6(1) of the framework directive, according to which ‘[w]ithin the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers. . .’. 105. Thirdly, the objective of protection which Article 5(1) of the framework directive is designed to secure makes it necessary to interpret the duty placed on the employer as being essentially a duty of prevention. That duty therefore takes the form both of anticipating and assessing risks to the safety and health of workers resulting from the undertaking’s activities and of determining and taking the requisite preventive measures. . . . 108. Fourthly, since technical progress and developments in the production systems may result both in the creation of new risks to the safety and health of workers and in the diversification and improvement of protective measures, the employer's duty to ensure safety must be interpreted as an evolving responsibility, requiring constant adjustment to circumstances which may affect the quantum and extent of the risks to which workers are exposed as well as the effectiveness of the measures required to prevent or reduce them. 109. To that effect, Article 6(2)(e) of the framework directive stipulates that, in adopting preventive measures, the employer must adapt ‘to technical progress’. 110. Finally, it is clear from the general criteria for prevention laid down in Article 6(2)(b) — which, as we have seen, requires the employer to evaluate ‘the risks which cannot be avoided’ — and Article 6(2)(f) — which requires the employer to replace ‘the dangerous by the non-dangerous or the less dangerous’ — that the general duty to ensure safety laid down in Article 5(1) of the framework directive does not extend so far as to require the employer to provide a totally risk-free working environment. 111. The analysis set out at points 102 to 110 above allow of the conclusion that, pursuant to the duty of safety laid down in Article 5(1) of the framework directive, an employer is required to prevent or reduce, so far as possible and taking into account technical progress, all of the risks to the safety and health of workers that are actually foreseeable. 112. Translated into terms of liability, the above considerations imply that both the occurrence of foreseeable and preventable risks to the safety and health of workers and the consequences of events which constitute the realisation of such risks will be attributable to the employer, since both are a result of a breach of the general duty to ensure safety as defined above. 113. Conversely, the occurrence of risks that were unforeseeable and/or inevitable and the consequences of events which constitute the realisation of such risks will not be attributable to the employer on that same basis.” He then rejected the suggestion that that conclusion was invalidated by the wording of the first paragraph of Article 5(4) in terms of the option available to Member States to exclude or limit the liability of the employer in the cases envisaged by that provision. The views expressed by Advocate General Mengozzi and the Court of Justice are of assistance in the interpretation of the Framework Directive. In the context of interpreting the Regulations, I would gratefully adopt the observations of Clarke J. in the recent decision of OCS One Complete Solutions Limited v Dublin Airport Authority plc., (Unreported, Supreme Court,, 30th January 2015) at paragraph 5.1:
28. It is for the national court to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.” 5.3 It is, however, important to recognise that there may be circumstances where, on a proper interpretation of a directive, a Member State is left with some degree of discretion or margin of appreciation as to the manner in which it may implement its obligations under the relevant directive. In accordance with European Union law a court should, unless it is impossible to do otherwise, ensure that the interpretation of domestic implementing law is not inconsistent with the directive. However, where the relevant directive is not mandatory in respect of any particular aspect of a regime then it will be a matter of construing national law (including implementing measures) to determine the applicable legal position subject only to the overriding consideration that the result of any interpretation of national law should, to the greatest extent possible, leave national law in conformity with the requirements of the directive. 5.4 Thus the relevant directives in this case are potentially of importance in construing the Regulation but only to the extent that it might be said that any particular interpretation of the Regulation would leave the law in this jurisdiction in a state where it was inconsistent with the obligations imposed by the directives.”
Strict Liability Under the Regulations? Waller L.J. in the course of his judgment stated at page 1022:
He was also constrained to accept that if a Member State wished to impose an absolute obligation in an area where the Directive simply required a minimum obligation of a lesser nature, there was nothing in the Directive which prevented a Member State from so doing, but, submitted Mr Storey, the Member State would have to use clear words. It seems to me that all that can be said of the Work Equipment Directive 89/655 is that it sought to bring in minimum requirements. It positively encouraged more stringent requirements if they already existed, and there is nothing in the Directive to discourage a Member State in fulfilling its obligations under the Directives from imposing more stringent duties than the minimum required. The draftsman here has used language construed as imposing a strict obligation over many years in the context of the Health and Safety of employees. That language gives effect to the minimum obligations, but it also goes further. I cannot see that there is any discouragement of the implementation of a higher standard if the Member State chooses to impose it.” Counsel on behalf of Dublin Bus also relied on that decision and emphasised that the U.K. courts have repeatedly contrasted the terms used in the U.K. Regulations with those of the EU Directive and have emphasised that the parent Directive differs from the U.K. Regulations in that it does not require absolute liability to be imposed. On that basis it is argued that while it was open to Member States to impose absolute liability on employers, the Irish Regulations in using the terms and language of the Directives in the Regulation did not thereby impose such liability. The Regulation at issue in the Stark case, Regulation 6(1) provided:
For example, as was accepted by Mr Redfern, breach of section 22 of the Factories Act 1937 led to criminal sanctions but, by section 155, provided, so far as criminal sanctions were concerned, for some escape for the employer. Under section 155 if an employer was to be convicted it would be necessary to prove ‘that he failed to take all reasonable steps to prevent the contravention.’ In relation to breaches of regulation 6(1) the criminal sanctions are imposed by section 33 of the Health and Safety at Work Act 1974. Under that section there is no similar escape provision. Mr Storey thus submitted that the inclination of the court should be to construe regulation 6(1) so far as possible not to impose a criminal responsibility. In this regard he cited London and North Eastern Railway Company v Berriman [1946] AC 278 and a dictum of Lord Simonds at 313. Lord Simonds cited first the well-known passage of Lord Esher in Tuck & Sons v. Priester (1887) 19 QBD 629 at 638 in the following terms: - ‘We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.’ Lord Simonds also however referred to the words of James L.J. delivering the judgment of the Privy Council in Dyke v. Elliott (1872) L.R. 4 P.C. 184 at 191 as follows: - ‘Where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.’”
(a) to fail to discharge a duty to which he is subject by virtue of sections 6 to 8, 9(1), 10, 11, 12(5) to (8), 13(1) and (5), or (b) to contravene sections 9(2), 12(1) to (4), or (c) to contravene a provision of a regulation made under section 28.”
(b) on conviction on indictment to a fine.” The obligation is to provide work equipment that is suitable for the work to be done. However, it is recognised that it is not always possible to ensure that work equipment can be used without any risk and consequently in Regulation 19(c) it is provided that the obligation in those circumstances is to ensure that appropriate measures are taken to minimise any such risk. The recognition of the fact that it is not always possible to ensure that when the work equipment provided is suitable for the use which is intended, it is not possible to guarantee that the work equipment can be used without risk and that consequently, the obligation is to take appropriate measures to minimise such risk, seems to me to preclude the possibility of construing Regulation 19(a) and (c) as imposing absolute liability. I am reinforced in this view by virtue of the fact that criminal liability is imposed for a breach of the Regulations. It is not necessary to repeat the provisions of Regulation 20 but it does provide that work equipment should comply with the minimum requirements laid down in the Fifth Schedule of the Regulations including Clause 7 which is of relevance in this case to the effect that “Where there is a risk of rupture or disintegration of parts of work equipment, likely to pose significant danger to the safety and health of employees, appropriate protection measures shall be taken.” The obligation is to take appropriate protection measures. On the facts of this case, it is difficult to anticipate what further steps could have been taken by Dublin Bus to prevent the collapse of the bus’s suspension. During the course of submissions reference was made to a number of other statutory provisions from the Factories Act 1955 and the Mines and Quarries Act 1965 and to decisions such as Doherty v. Bowaters Irish Wallboard Mills Ltd. [1968] I.R. 277 and Gallagher v. Mogul of Ireland Ltd. [1975] 1 I.R. 204 which considered statutes imposing what was said to be absolute liability. There is an interesting discussion in the case of Gallagher by Walsh J. as to the appropriate test to be applied in the context of s. 49(1) of the Mines and Quarries Act 1965 which stated:
However, the important phrase is ‘as may be necessary’. It is submitted that the use of this phrase imports a connotation of a duty less than absolute duty. In my view, that is not a correct construction of the statutory provision. If a road or working place can be made secure or kept secure by the provision of a sufficient amount of support by way of the provision of a sufficient control of movement, then the failure to provide the safeguards in the sufficiency actually required is a failure to provide the necessary amount. In my view, the trial judge was quite correct in his application of the decision of this Court in Doherty v.Bowaters Irish Wallboard Mills Ltd. In that case the Court held that an absolute duty was imposed by a statutory provision which contained a requirement that a chain or rope or lifting tackle should not be used unless it was of ‘. . . adequate strength . . .’. In the context of the provision of the Factories Act in issue in that case and the present statutory provision, I do not see any distinction which can be drawn between the use of the word ‘adequate’ and the use of the word ‘necessary’. If anything ‘necessary’ imports a greater sense of obligation than the word ‘adequate’. If the road or working place becomes insecure by reason of a deficiency in the support to the roof or sides of the road or working place, or a deficiency in the degree of control of movement of the strata in the mine, then it is clear beyond doubt that the support and control which was provided was less than was necessary. The test is not ‘less than was reasonably foreseen to have been necessary’. Therefore, I am of opinion that, where the working place or the road is not secure and where it could have been made secure by a sufficient degree of control or support, there has been a failure to provide the necessary degree of control or support. The statutory obligation is absolute in the sense that it is independent of what could reasonably have been foreseen or of what was capable of being ascertained only after the event. But even in respect of this stringent statutory obligation the Oireachtas has provided the statutory defence contained in para. (a) of s. 137 of the Act of 1965. In other words, in legal proceedings to recover damages based on the contravention of sub-s. 1 of s. 49 it is still a defence for the defendant to prove that it was impracticable to avoid or prevent the contravention, even in a case where the precautions which the statute required to be taken could only have been ascertained after the event. In my view, therefore, the appeal against the ruling or finding that the defendants were guilty of breach of statutory duty in failing to keep the working place secure should be dismissed.” The only other decision which may be of some assistance is the decision of the High Court in the case of McGrath v. Trintech [2004] 4 I.R. 382. In that case, Laffoy J. in the context of proceedings for, inter alia, breach of contract, negligence, breach of statutory duties arising out of the plaintiff’s allegations that he was subjected to grave work related stress and pressure which resulted in injury to his psychological health and wellbeing. In the course of the case, Laffoy J. considered the provisions of s. 6(1) of the 1989 Act and the 1993 Regulations and in particular Regulations 5, 8, 9, 10, 11 and 13 thereof. The argument made before Laffoy J. was to the effect that the Regulations of 1993 impose virtually an absolute duty on employers in relation to the health and safety obligations imposed by the Act of 1989 and the Regulations of 1993. Reliance was placed on the decision in Everitt referred to above. In her conclusion on the issue of liability for breach of statutory duty she commented at page 437 of the judgment as follows:
By way of general observation, if the submissions made on behalf of the plaintiff were correct, in my view, the law would impose a wholly unrealistic burden on employers.” Decision
(a) the necessary measures are taken so that the work equipment is suitable for the work to be carried out . . . and may be used by employees without risk to their safety and health.” Had it been the case that the Regulations transposing the Directives were intended to go further than the Directives by imposing a standard other than the minimum requirements set out in the Directives by imposing strict or absolute liability on an employer, then in those circumstances it is to be expected that the Regulations would have been expressed clearly in such a way as to make it absolutely obvious that that was the intention in transposing the Directives by means of the Regulations. By transposing the Directives in the same terms, it does not seem to me that the Minister in making the Regulations was seeking to impose a greater obligation than that set out in the Directive. That being so I have come to the conclusion that in this case there has not been a breach of any statutory duty imposed by the Regulations. Dublin Bus took the necessary measures to ensure that the work equipment could be used without risk to the safety and health of its employees and insofar as the work equipment failed on this occasion it is clear that Dublin Bus took the appropriate measures to minimise the risks involved. Unfortunately, Mr. Thompson received injuries in the course of his employment with Dublin Bus but it is difficult to see on the facts of this case what further steps were required to have been taken by Dublin Bus in order to comply with their obligations under the Regulations. The obligations under the Regulations do not, in my view, impose absolute liability on the employer. In those circumstances, I would allow the appeal. | ||||||||||||||||||||||||||||||||||||||
