Thompson -v- Dublin Bus & anor [2015] IESC 22 (05 March 2015)

Judgment


Title:	Thompson -v- Dublin Bus & anor
Neutral Citation:	[2015] IESC 22
Supreme Court Record Number:	231/10
High Court Record Number:	2007 5400 P
Date of Delivery:	05/03/2015
Court:	Supreme Court
Composition of Court:	Denham C.J., Murray J., Hardiman J., McKechnie J., Dunne J.
Judgment by:	Dunne J.
Status:	Approved


Judgments by	Link to Judgment	Result	Concurring
Dunne J.	Link	Appeal allowed	Denham C.J., Murray J., Hardiman J., McKechnie J.

___________________________________________________________________________

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
Mr. Thompson was driving a No. 201 bus on the Tallaght/Boharnabreena route on the 27th September, 2005 at approximately 7.55pm. The route in question traversed a number of roadways on which there were a large number of ramps which it was found by the learned trial judge (de Valera J.) conformed with best practice in terms of their dimensions. In the course of driving along the 201 bus route, having traversed a number of ramps and at approximately the fourth ramp at Kiltipper, the pneumatic suspension of the bus malfunctioned causing a loss of “cushion effect” and thereby causing an injury to Mr. Thompson’s neck and lower back.

Findings of fact
The following findings of fact were made by the learned trial judge:

“(a) There is no evidence to suggest that plaintiff was driving too fast.

(b) There is sufficient evidence to establish that a proper regime of inspection, maintenance were carried out by the first named defendant.

(d) The plaintiff did suffer personal injury as a result of the suspension failure which has resulted in an ongoing physical deficit.”

The learned trial judge went on to indicate in the ex tempore judgment that he accepted the closing submissions on behalf of the plaintiff to the effect that unless the evidence established that the plaintiff was driving excessively fast then the cause of the suspension collapse was a failure of equipment. He pointed out that if the action was grounded solely on Dublin Bus’s common law duty as an employer then in those circumstances the plaintiff’s claim would fail as the learned trial judge was satisfied that a proper maintenance regime existed. However he went on to consider the question of the statutory duty which had been pleaded in the case and on the basis of the statutory duty at issue in the case he concluded that the relevant statutory provision, Regulation 19 of the Safety, Heath and Welfare at Work (General Application) Regulations 1993 (S.I. No. 44 of 1993) appeared to impose what was “In practical terms an absolute duty on employers in respect of the safety of equipment [provided] for the use of their employees”. In coming to his conclusion the learned trial judge referred to a decision of the High Court in the case of Everitt v. Thorsman Ireland Limited [2000] 1 IR 256, a judgment to which I will refer later in the course of this judgment, and concluded as follows:

“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 issue
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
Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 (S.I. No. 44 of 1993) provides at Regulation 19 as follows:

“It shall be the duty of every employer, to ensure that -

(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.”

Regulation 20 provides:

“(1) Without prejudice to the provisions of Regulation 19, it shall be the duty of an employer to ensure that any work equipment provided before the 31st day of December, 1992, for use by employees at a place of work complies with the minimum requirements of the Fifth Schedule, and that work equipment which has to be provided for use by employees and which has not been put into use before that date, shall comply with -

(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.”

The provisions of the 1993 Regulations were subsequently amended in the Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2001 S>I> No. 188 of 2001). As the Regulations at the heart of these proceedings are Regulation 19(a) and (c) of the 1993 Regulations and no amendment has been made to those provisions, I do not propose to set out the amending provisions contained in the 2001 Regulations. For completeness I should note that the Regulations at issue in these proceedings have since been revoked. (See the Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)).

Legislation and Directives
The Safety, Health and Welfare at Work Act 1989 was enacted on the 19th April, 1989 and provided, inter alia, for the making of regulations in furtherance of the objectives set out in the legislation. The “Framework” Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC) was adopted on the 12th June, 1989 (hereinafter referred to as the Framework Directive). A further Directive (being the second individual Directive) is of relevance, namely, the Directive of the 30th November, 1989 concerning the minimum safety and heath requirements for the use of work equipment by workers at work (89/655/EEC) (hereinafter referred to as the Work Equipment Directive). The 1993 Regulations effected the transposition into Irish law of the Directives.

Article 5 of the Framework Directive sets out general provisions. Article 5(1) provides as follows:

“The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.”

Of particular significance is Article 5(4) which provides as follows:

“This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.

Member States need not exercise the option referred to in the first subparagraph.”

Article 6(1) provides as follows:

“Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.”

The Work Equipment Directive also contains provisions as to the employers’ obligations. These are transposed into Irish Law by Regulation 19 of the 1993 Regulations. Article 3(1) provides as follows:

“(1) The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.

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.”

Article 4(2) provides as follows:

“The employer shall 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(a) or (b) as applicable.”

The Work Equipment Directive contains an annex which is in similar terms to Schedule 5 of the 1993 Regulations. It is headed: “Minimum requirements referred to in Article 4(1)(a)(ii) and (b)”.

Paragraph 2 of the annex states as follows:

“Work equipment control devices which affect safety must be clearly visible and identifiable and appropriately marked where necessary.

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. . . ..”

By comparison the Fifth Schedule to the 1993 Regulations provides at (1) as follows:

“1. (1) Work equipment control devices which affect safety shall be clearly visible and identifiable and appropriately marked where necessary.

(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. . . ..”

It can be seen that the Annex to the Regulations mirrors the Annex to the Work Equipment Directive. Clause 2.7 of the Annex to the Work Equipment Directive and Clause 7 of the Fifth Schedule are also in almost identical terms and state as follows:

“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 only significant difference between the two provisions is the use of workers in the Directive and the use of employees in the Regulations. Nothing turns on that difference.

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:

“Whereas Article 118A of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers;”

Further, it is clear from the full title of the Framework Directive that its purpose is the introduction of measures to encourage improvements in the safety and health of workers. Thus one can see from a consideration of the Recitals and the title of the Framework Directive that its primary purpose is focused on providing minimum standards for the health and safety of workers. Given that the Framework Directive specifies that Member States can limit or exclude employers’ responsibility in certain circumstances it becomes necessary to examine how the Framework Directive and the Work Equipment Directive have been transposed in this country and thus it becomes necessary to look at the 1993 Regulations and in particular Regulation 19 and 20 thereof and furthermore to consider the decision of Kearns P. in the case of Everitt v. Thorsman (Ireland) Ltd. [2000] 1 IR 256 in which the Regulations arose for consideration.

Regulation 19(1)(a) imposes the duty on employers to ensure that

(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.”

It is recognised that all risks cannot be eliminated and thus Regulation 19(c) provides that -

“where it is not possible fully to ensure that work equipment can be used by employees without risk . . . appropriate measures are taken to minimise any such risk.”

It would appear, therefore, that the duty of an employer is to ensure that necessary measures are taken so that work equipment is suitable for use but where it is not possible fully to ensure that work equipment can be used without risk, the duty is to take appropriate measures to minimise any such risk. When one considers Regulation 19(a) and (c) together, the question has to be asked, could Regulation 19 (c) have any relevance or effect if the duty imposed in Regulation 19(a) was an absolute duty? That question illustrates the difficult issue arising in this case. It will be important to bear in mind that the wording of Regulation 19(a) and (c) follows closely the wording in Article 3(1) and (3) of the Work Equipment Directive. Regulation 20 also has some bearing. In the first instance, Regulation 20(1) provides that employers must ensure that the work equipment specified therein complies with the minimum requirements of the Fifth Schedule. Regulation 20(2) imposes a duty to take the measures necessary to ensure that work equipment is adequately maintained throughout its working life so that it complies with the requirements of Regulation 20(1).

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:

The High Court Decision
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:

“This matter was considered in the High Court in 1999 in the matter of

Everitt v.

Thorsman Ireland Ltd.

[2000] 1 IR 256 where Mr. Justice Kearns having considering Regulations 19 and 20 of the Safety Health and Welfare at Work (General Application) Regulations 1993 (S.I. No. 44) went on to state:

‘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.”

It is apparent from the judgment of Kearns J. that he was not referred to the Framework Directive or the Work Equipment Directive underlying the provisions of the 1993 Regulations. Further the conclusion of Kearns J. appears to be based on the view that the Regulations were there for sound policy reasons namely to ensure that an employee who through no fault of his own suffered an injury by using defective equipment would not be left without any remedy. It is in those circumstances that he concluded that the provisions of Regulation 19 imposed what he described as virtually an absolute duty on employers. There is an interesting comment on this judgment in Safety, Health and Welfare at Work Law in Ireland: A Guide by Raymond Byrne (Nifast) the first edition of which was published in 2001. He commented at paragraph 3(12) as follows:

“It is notable that Kearns J. stated that there had been ‘no blameworthiness in any meaningful sense’ by the employer in this case. But because he also noted that there was ‘virtually an absolute duty’ under the 1993 Regulations, he concluded that there had been a breach of statutory duty in this case. On this basis the plaintiff was entitled to claim against his employer. He did not actually consider whether the finding of ‘virtually an absolute liability” was consistent with the fact that the 1989 Work Equipment Directive, implemented in the 1993 Regulations, lays down ‘minimum standards’.”

It was also noted by the author that in that particular case the employer was ultimately found to be entitled to a one hundred per cent indemnity and contribution from the supplier of the defective equipment. Thus, while the Framework Directive and the Work Equipment Directive may be viewed as imposing minimum standards on employers, it would appear that the interpretation placed on the 1993 Regulations by Kearns J. in Everitt resulted in the imposition of a standard of absolute liability.

The view from Europe
The European Court of Justice considered the effect of the Framework Directive in a case entitled Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case C - 127/05) 2007 ICR 1393. In that case the Commission took the view that s. 2(1) of the Health and Safety at Work Act 1974 which imposed a duty on every employer “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”, represented an incorrect implementation of Article 5(1) of the Framework Directive in that it unduly limited both the general duty of safety to which employers were subject and the no fault liability which in the Commission’s submission Article 5(1) imposed on employers in the event of an accident, subject only to the force majeure provision in Article 5(4) which was to be narrowly interpreted. In those circumstances, the Commission applied to the Court of Justice, (ECJ), for a declaration that by so restricting the duty on employers the United Kingdom had failed to implement its obligations under Article 5(1) and (4) of the Framework Directive. The ECJ dismissed that application concluding that Article 5(1) of the Framework Directive embodied the general duty of safety to which employers were subject, without specifying any form of liability, and therefore did not require the imposition of no fault liability on employers; that the Commission had not indicated in precisely what way it alleged that the “so far is reasonably practicable” clause in s. 2(1) of the Health and Safety at Work Act 1974 offended against the duty on employers required by the Directive. Since the Commission had not established that the clause limited (in this regard of Article 5(1) and (4) of the Directive) either employers’ responsibility, by excluding a form of no fault liability or the duty of employers to ensure the safety and health of workers, it had not established that the United Kingdom had failed to fulfil its obligations under those Articles of the Directive. The following passages from the judgment of the ECJ commencing at para. 43 are of interest:

“43. The Commission submits that its suggested interpretation of Article 5 is borne out by the legislative history of Directive 89/391. It maintains that, since the request of the United Kingdom and Irish delegations for the disputed clause to be incorporated in the definition of the employer's responsibilities was expressly rejected in the course of the discussions of the working party set up by the Council of the European Union, it can accordingly be accepted that there is no-fault liability on the part of the employer.

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.”

The judgment continued at paragraph 49:

“49. As Advocate General Mengozzi observed at point 82 of his Opinion, it is apparent from the wording of that subparagraph that it is intended to clarify the scope of certain provisions of Directive 89/391 by explaining the margin of manoeuvre available to the Member States in transposing those provisions into national law. On the other hand, it cannot be inferred from that provision, on the basis of an interpretation

a contrario

, that the Community legislature intended to impose upon Member States a duty to prescribe a no-fault liability regime for employers.”

Advocate General Mengozzi in his Opinion explained the background to the insertion of Article 5(4) in the Framework Directive. Thus he commented at paragraph 86:

“It is clear from the case-file that Article 5(4) was inserted into the text of the directive to meet requests made by the United Kingdom and Irish delegations during the discussion which took place within the Council on the proposed framework directive. . . .

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.”

He then went on to observe at paragraph 91 as follows:

“Article 5(4) was therefore inserted into the framework directive as a result of the discussion within the Council concerning how to resolve the problem that wording in absolute terms the employer's duty to ensure safety would have raised in the common-law systems, bearing in mind the obligation incumbent on courts in those systems to interpret written law literally.

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.”

He went on at paragraph 95 to examine the nature of the duty imposed by Article 5(1) and thus at 100 he said:

“I have already stated that the provision sets out the duty incumbent on the employer to guarantee the safety and health of workers. It is now necessary to define specifically the substance and extent of that duty, which, as we have seen, is formulated in absolute terms.

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 concluded therefore that “Although defined in particularly broad terms, the employer's liability resulting from Article 5(1) and (4) of that directive is in fact liability based on fault, which flows from a failure to discharge the duty to ensure safety devolving on the employer.”

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:

5.1 “It is, of course, the Regulation which governs the law in this jurisdiction. It is equally clear, however, that the Irish courts, in interpreting the Regulation, are required, as a matter of European Union law, to attempt to construe the Regulation in conformity with the obligations on the State arising from the relevant directives and in a manner designed to achieve the result pursued by the Directives. The principle of harmonious interpretation was developed by the ECJ in Case 14/83

Von Colson and Kamman v. Land Nordhein-Westfalen

[1984] ECR 1891 in which the Court stated:-

“26…[I]n applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No. 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article 189 [now Article 288 of the Treaty on the Functioning of the European Union]…

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.”

5.2 In Case C- 106/89

Marleasing SA v. Law Comercial Internacionale de

Alimentacion SA

[1990] ECR I -4135 the ECJ held that, when applying national law, whether the provisions were adopted before or after the directive at issue, the national court is required to interpret the provisions of national law “as far as possible” in the light of the purpose of the directive in order to achieve the result pursued by the directive. In

Marleasing

there was no domestic legislation implementing the directive, and the ECJ found that in those circumstances it was necessary for the national court to harmoniously interpret domestic law which predated the directive. Additionally, in Cases C- 397-403/1

Pfeiffer and others v.

Deutsches Rotes Kreuz

[2004] ECR I-8835, the ECJ ruled that “the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law” to ensure that the directive is fully effective.

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.”

Having regard to those observations and bearing in mind the clause at issue in the Commission v. U.K, it is interesting to look at s. 6(1) of the 1989 Act which provides as follows:

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees.”

Thus the wording used in s. 6(1) is identical to that used in the Health and Safety at Work Act 1974.

Strict Liability Under the Regulations?
Counsel on behalf of Mr. Thompson contend that, despite the decision of the European Court of Justice which makes it clear that the Framework Directive sets the minimum standards for employers, as presumably do the Directives which are derived from it including the Work Equipment Directive, the duty contained in Regulations 19 and 20 of the 1993 Regulations imposes strict liability on an employer if work equipment fails. In support of their contention, reliance was placed on the decision of the Court of Appeal of England and Wales in Stark v. Post Office [2000] ICR 1013. In that case, a post office employee was seriously injured when the front brake stirrup of the delivery bicycle provided for him broke and he was thrown over the handlebars. He brought a claim for, inter alia, damages for personal injuries suffered as a result of negligence and/or breach of statutory duty. The Judge held that there was no liability in negligence and that there had been no breach of the employer’s duty under the United Kingdom’s Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 to ensure that the work equipment was maintained “in an efficient state, in efficient working order and in good repair”. The plaintiff appealed contending that Regulation 6(1) imposed an absolute duty on the employer which was unaffected by any lesser duty contemplated by the Work Equipment Directive. It was held by the Court of Appeal allowing the appeal that the purpose of the Work Equipment Directive was to provide for minimum requirements for encouraging improvements in the standards of health and safety of employees of Member States; that, although the language of the Directive was not such as to compel a Member State to introduce absolute obligations, it recognised that, if Member States already imposed obligations in respect of the levels of protection higher than those minimum obligations sought to be imposed by the Directive, the higher obligations should be maintained. That Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 clearly imposed an absolute obligation on the employer, in language construed over many years in respect of the health and safety of employees as imposing a strict obligation; and that accordingly since the bicycle was not in efficient working order when the stirrup broke, the employer was in breach of its statutory duty.

Waller L.J. in the course of his judgment stated at page 1022:

“The Directives recognise that, if Member States already impose obligations higher than those minimum obligations sought to be imposed by the Directives, those higher obligations should be maintained. For this reason, although section 22 of the Factories Act 1961, the predecessor of which was construed in

Galashiels Gas Co.

Ltd. v. Millar

[1949] AC 275 as imposing an absolute obligation, has been somewhat amended to give effect to certain requirements of the Directive 89/655 [the Work Equipment Directive] to keep maintenance records, Mr Storey was clear that the absolute nature of the obligation previously imposed remained. He did not submit that there was any question of the court being required to reinterpret section 22 in the context of the Directive and the amendments brought about to implement the Directive.

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.”

In those circumstances it was found that Regulation 6(1) did impose an absolute obligation and accordingly the plaintiff’s appeal in that case was allowed.

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:

“Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.”

The Work Equipment Directive provides at Article 4(2):

“The employer shall 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(a) or (b) as applicable.”

This form of wording is not entirely dissimilar from the provisions of Regulation 6(1) but as was explained by Waller L.J. in the course of his judgment:

“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.”

A further extract from the judgment in that case provides some guidance on the approach to be taken in this case. At page 1020 Waller L.J. stated:

“Mr Storey also suggested that it was important to compare the criminal responsibility which was imposed under the regulations the subject of the old authorities with those imposed for breach of regulation 6(1).

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.’”

The words quoted by Waller L.J. from the judgments of Lord Simonds are worth bearing in mind. They emphasise a point which is also relevant in the context of this case. Accepting as I do that the Directives lay down minimum standards and that those standards of themselves do not impose absolute liability while leaving open the possibility for Member States to impose absolute liability if so desired, it has to be borne in mind that s. 48 of the 1989 Act provides as follows:

“(1) It shall be an offence for a person -

(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

Thus the breach of the general duty set out in s. 6(1) of the Act is an offence as is a contravention of a provision of a Regulation such as Regulation 19 or 20 of the 1993 Regulations. The penalties for a person guilty of an offence are set out in s. 49. Thus a person guilty of an offence under s. 48(1) shall be liable:

“(a) on summary conviction to a fine not exceeding 1,000 or

(b) on conviction on indictment to a fine.”

Echoing the words of Lord Simonds, it seems to me that great care must be taken in construing the Regulations in circumstances where a breach of the Regulations is an offence involving the imposition of a penalty.

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:

“It shall be the duty of the manager of every mine to take such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of every road or working place as may be necessary for keeping the road or working place secure.”

It was a case in which the plaintiff was engaged in drilling operations in a mine when he was injured by a fall of rock from the roof of the tunnel where he was working. The trial judge directed at the trial of the action before judge and jury that as a breach of s. 49 had been proved the defendants were liable absolutely for that breach as they had not attempted to ground their defence on the provisions of s. 137 of the Act which provided that in any proceedings to recover damages based on a provision of the Act it was a defence “to prove that it was impracticable to avoid or prevent the contravention”. Accordingly the jury found that the plaintiff had been negligent. On appeal it was held in disallowing the appeal that the statutory duty imposed by subs. (1) of s. 49 of the Act of 1965 is absolute in the sense that liability for a breach of that duty is not dependent upon what could or could not have been reasonable foreseen by the person alleged to have contravened the sub-section. Walsh J. considered the approach in the English case of Brown v. The National Coal Board [1962] AC 574 but took a different approach from the approach taken in that case. At page 213 of the judgment of the Supreme Court he stated as follows:

“. . . I do not think the duty imposed upon the manager is a general one to keep the road and working place secure but rather it is one to keep the road and working place secure in so far as the same can be made secure by the control of movement of the strata and the support to the roof and sides of the road or working place.

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.”

It was emphasised on behalf of Dublin Bus that having regard to the reasoning of Walsh J. in the course of the passage referred to above it was clear that it was necessary to show that preventative measures could have been taken which were not. They submitted that on the facts of the present case it was clear that preventative measures were taken in relation to the maintenance of the bus which as it happens, did not prevent the defect but having taken such preventative measures the duty of the employer was discharged.

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:

“The issue is not whether the stress the plaintiff suffered was caused by work, but whether the stress-induced injury was a consequence of a breach by the first defendant of its statutory duties. Where an employee is injured because of the malfunction of a faulty piece of equipment given to him by his employer, the causative link is obvious. The injury would not have been inflicted if the faulty piece of equipment had not been given to the employee. The question which arises here is whether it can be said, as a matter of probability, that if the first defendant took all of the steps which the plaintiff contends it was statutorily obliged to take (dealing with workplace stress in the safety statement, having in place a system for monitoring stress and an employee assistance programme and providing further training for the plaintiff) the plaintiff would not have suffered psychological injury. In my view it cannot.

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.”

Relying on that authority it is submitted on behalf of Dublin Bus that the judgment of Laffoy J. expressed some unease at the extent of the burden identified in the case of Everitt by virtue of the Regulations.

Decision
The 1993 Regulations in Regulation 19 set out the duties of an employer in relation to work equipment. The manner in which the Work Equipment Directive has been transposed involves the use of the same language apart from minor details which do not affect the overall effect of the Directive or indeed the Regulations. Thus Article 3(1) provides that the employer shall take the measures necessary to ensure that the work equipment made available to workers . . . is suitable for the work to be carried out . . . and may be used by workers without impairment to their safety or health while Regulation 19(1)(a):

“It shall be the duty of every employer, to ensure that -

(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.”

Again Article 3(2) is in similar terms to Regulation 19(c). It is clear from the Work Equipment Directive and indeed from the Framework Directive that it is intended to provide for the minimum safety and health requirements for the use of work equipment. That that is so was made clear in the decision in the case of EC Commission v. United Kingdom on the Framework Directive. It is also clear from that decision that it is open to Member States to impose more stringent requirements than those to be found in the Directives for the protection of workers if that is deemed appropriate by the Member State. Thus in the case of Stark v. Post Office, the U.K. Court of Appeal found that the language used in that jurisdiction imposed higher obligations on employers than the minimum obligations contained in the Directive. A breach of the Regulations is as pointed out previously a criminal offence. On indictment it is punishable by way of a fine which is unlimited.

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.

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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Thompson -v- Dublin Bus & anor [2015] IESC 22 (05 March 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S22.html Cite as: [2015] IESC 22

Supreme Court of Ireland Decisions