No absolute duty on the employer in relation to the safety of work equipment

In Thompson v Dublin Bus and Another [2015] IESC 22, Dublin Bus appealed from the decision of the High Court (de Valera J., 4 June 2010) that there was a statutory duty on their part in respect of the safety of equipment provided for the use of its employees which had not been discharged. The Supreme Court was asked to determine whether Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 (the Regulations) imposed an absolute duty on the employer in relation to the safety of equipment provided for the use of its employees.

The Supreme Court held that the obligations under the Regulations did not impose absolute liability on the employer.

Background
Mr Thompson was a bus driver employed by the Dublin Bus and on the 27 September 2005 he was driving a bus on route number 201.  The route in question traversed a number of roadways on which there were a large number of ramps.  It was found by the High Court that the ramps conformed to best practice in terms of their dimensions.  In the course of driving along the bus route, having traversed a number of ramps the pneumatic suspension of the bus malfunctioned causing a loss of “cushion effect”, causing an injury to Mr Thompson’s neck and lower back.

High Court Decision
The High Court found that (1) there was no evidence to suggest that Mr Thompson was driving too fast; (2) there was sufficient evidence to establish that a proper regime of inspection and maintenance was carried out by Dublin Bus; (3) the construction of the ramps conformed to the best practice; and (4) Mr Thompson did suffer personal injury as a result of the suspension failure which had resulted in an ongoing physical deficit.

In finding against Dublin Bus, the High Court held that Regulation 19 of the Regulations 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”.

Supreme Court Decision
On appeal, the Supreme Court found that the employer's obligation was to provide work equipment that was suitable for the work to be done.  However, the Court recognised that it was not always possible to ensure that work equipment could be used without any risk at all.  Consequently, it held that Regulation 19(c) provided that the obligation in those circumstances was to ensure that appropriate measures were taken to minimise any such risk.

The Court referred to the Work Equipment Directive and the Framework Directive and said that clearly both intended to provide for the minimum safety and health requirements for the use of work equipment.  The Court also referred to EC Commission v. United Kingdom on the Framework Directive and said that it was clear from that decision that it was open to Member States to impose more stringent requirements than those to be found in the Directives for the protection of workers.

However, the Court found that had it been the case that the Regulations transposing the Directives were intended to go further than the Directives (by imposing strict liability on an employer) one would have expected the Regulations to be expressed clearly in such a way as to make it obvious that that was the intention in transposing the Directives by means of the Regulations.  As the Directives had been transposed in the same terms, the Court held that the Regulations were not seeking to impose a greater obligation than that set out in the Directives.

The Court came to the conclusion that there had not been a breach of any statutory duty imposed by the Regulations. Dunne J. stated: "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, the appeal was allowed.
Link to judgment

For further information please contact Alison Fanagan at afanagan@algoodbody.com or Jason Milne at jmilne@algoodbody.com.

Date published: 10 March 2015