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Strict Liability?

Many claims against employers can and will fail when the claim is made as one of negligence by the employer. However, because of the multitude of duties imposed on employers by statute, it is common for the employer to be found liable to the employee for an injury even where the employer has not been “at fault” (meaning, here, “negligent”).

The duty imposed by Regulation 28 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 is a case in point. Its predecessor, Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 was described in Doyle v Electricity Supply Board [2008] IEHC 88 as

“In the instant case, I have found that the plaintiff has not established a breach by the defendant of any duty at Common Law owed by the defendant to the plaintiff as his employer.
However, with effect from 22nd February, 1993, (when the Regulations of 1993 came into force), a statutory duty was imposed upon the defendant which has been described (by Kearns J.at p. 263 in Everitt) “as virtually an absolute duty” which requires the defendant “ . . . to ensure that . . . 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”.”

Regulation 28 (and Regulation 19 before it) imposes duties on employers relating to work equipment. The equipment must be suitable and free of risk to the employee. It is not necessary to prove that the risk was known to the employer; all that is required is to prove the injury and relationship of the injury to the equipment.

Legal Advice

1. It was (arguably) beyond the remit of the High Court inspector to make exhaustive comment on the giving of legal advice to Mr. Jim Flavin (“Flavin”) on the legality of the sale by Flavin of Fyffes’ shares.

2. However, the advice was wrong, the inspector says. (He could hardly say anything else, given that the Supreme Court effectively said the same thing).

3. Consequently, the question as to whether the solicitor who gave that advice was negligent could arise. Hopefully, the solicitor knew this and qualified the advice with the use of some formulation like “…on the one hand this… on the other hand that…”.

4. But then Flavin would have been in a quandary. He would not have been able to sleep with worry about the possibility that he was about to commit a crime.

5. But what of the solicitor? Is his sleep of no consequence? If he says, positively, that the sale of shares is legal; is not a crime, and is nonetheless wrong, is he not liable to the client? How can he sleep with the worry that his advice will prove to be wrong?

6. Even if he has nerves of steel and a will of iron, what can he say to the client who returns to him after the trauma of even a successful defence of the client’s actions? Did he not advise the client of the possibility, indeed the likelihood of litigation? If he did, surely the client had grounds to doubt the legality of what was proposed and if he did not surely the client, learning of the decision in C. W. Dixey and Sons Ltd. v Parsons [1964]192 E G where the court said;

“In the present circumstances the solicitor owed a duty of care to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against the risk of being involved in litigation… It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor would have gone to see his clients and advised them not to sign.”

would be rightly aggrieved at the advice the solicitor had given.

7. Of course, there is another way of seeing the situation. There are some things upon which a solicitor should not venture an opinion or advice and clients should not seek such opinion or advice.

The Viewing

Judge McMahon travelled to Lissadell to see the subject of the dispute between the owners and Sligo County Council about “public rights of way” on the estate.

From an evidential point of view this is equivalent to looking at the murder weapon in a criminal trial, or looking at a large machine which cannot be brought to court with convenience.

It is normal for the parties to the dispute to be given the opportunity to accompany the judge (or the jury, as the case may be) with legal advisors in the “viewing” by the finder of fact.

The reason for this is to ensure the adoption of fair procedures and to preclude the possibility of some novel (and irrelevant) element, unseen and unknown by, and to, the parties colouring the judge’s perception and opinion.

Bad Language again

The Irish Times reports Mr. Seamus Lyons (who, it says, is an assistant city manager) as announcing the intended publication (by him, I think) of a report from the Economic and Social Research Institute.

Amusingly, he is quoted as saying that:-

“The claim that there will not be enough waste available for the incinerator, we refute that, as we believe the ESRI will next week.”

Why bother with the expense and tedium of publishing the ESRI report if the claim is already “refuted”?

The reason is, he does not know the meaning of the word “refute”.

See this blog HERE on the point.

We can be confident, whatever the merits or demerits of the ESRI report, it will not refute “the claim”.

Conveyancing CPD

Solicitors acting for land/building purchasers deliver “Requisitions on Title” to the vendors. The requisitions are direct questions addressing a range of issues of possible concern. Now that there is little or no conveyancing to be done it would be best to look at the process now and again to keep it fresh in the mind of the profession.

So, what to answer if asked,

Given its position, please confirm that the property has never suffered from flooding.”

Well, in this case HERE the reply was:-

Our clients confirm that the property has never suffered from flooding during their 14-year occupation.”

The sale closed and the purchasers found that the Thames river (at the bottom of the garden) flooded the property.

The purchasers have sued the vendors; the case is ongoing.

In cross-examination the vendor emphatically denies misleading the purchasers; he meant “the building” when he referred to “the property”. The building had never been flooded; just the garden, and that less than claimed by the purchasers.

So, Irish conveyancers, my reply to that purchaser’s requisition would have been:-

this is not a requisition on title”

On receipt of rejoinders my reply would have been:-

purchasers should make their own enquiries”.

We in Ireland have a precedent for this case and consequently practitioners should wake up when they see the reference to “the Vendors…say…..” in replies to requisitions.

Vendors often say more than their prayers.

Appearances

As this is written, the public perception of AIB and Bank of Ireland is that they are solvent. They may not be. If they are not, the Government, or part of it, knows it. The Government, although it is silent on the point, is in that case, in effect. perpetuating the illusion of the banks’ solvency. This split between what is officially the case and what is really the case is common. We have seen recently that, although they were not directly protected by the State, we slowly, and by chance, learned that Liam Carroll’s property interests were financially unsustainable with Paddy Kelly’s likewise, followed by Bernard McNamara’s. These truths, easily comprehended when brought to view, are part of the more obscure greater truth, that the crash of these property interests was facilitated by massive Government failures and that the possible insolvency of the banks was caused by the Government.

The recent apology from the British Government to the victims of the Thalidomide scandal reminds us of what is required when important issues are denied or ignored; quality journalists.

In the UK they had the Sunday Times “Insight” team under Harold Evans. As editor of the Sunday Times, Evans refused to knuckle under in the face of Distillers’ court injunction preventing the newspaper from publishing the truth (to the extent then known) about the cause and history of the dreadful birth defects that had appeared as a result of the use of the Thalidomide drug by women. (Distillers was the distributor of Thalidomide).

(Ironically, given the title to this post, a newspaper of the name “Sunday Times” continued to exist after Harold Evans left it, but it was not what it had been; Rupert Murdoch owned it then).

At the crucial time and on the central issue, openness, the UK courts came down emphatically on the side of Distillers and attempted to impose secrecy.

Here in Ireland, if there were to be a reprise of that struggle we can not be sure that the courts’ response might not be equally inadequate.

The reasons for this are twofold; access to public records is still regularly denied as a consistent Government policy, and, within the court system, access to paper and electronic records is a matter of chance and whim. The Government has not only set the policy of “closed” administration, it has written the legislation to make it legal to refuse access to public records.

Advisors

There has been general astonishment at the findings of the High Court inspector into the “Fyffes” and “DCC” insider dealing transactions.

The inspector found that, Mr. Jim Flavin, having received legal advice, broke the law as to insider dealing, but, in the light of the advice, did so inadvertently.

Oddly, the judge who appointed the inspector to conduct the investigation said, in making the appointment:

The earlier proceedings were concerned only with the civil law and did not have to address culpability or responsibility of persons who may have advised or planned the transactions.”

How did that interesting idea fall by the wayside, as it appears to have done?

Mode of Business

We learn from the Sunday Business Post that NAMA may pay less than it previously indicated for the Irish Banks’ loans to be handed over to it (starting this very month, reputedly). We do not know anything further about this. We do not know if the report is accurate. We do not know if the report is a malicious falsehood leaked to the SBP to mislead critics of NAMA.

NAMA is a scandal. It is a scheme to transfer taxpayers’ money to private institutions without a rational justification. The irrational justification (“long-term economic value”) was mooted by the EU Commission, but it hedged it about with many conditions. We have no idea if the Irish Government and the Irish Banks have complied with those conditions. The EU did not mandate secrecy like this.

That the SBP can publish its, presumably, bona fide report and miss the real story; that its sources are unreliable and clearly manipulative of public opinion; that NAMA clearly thinks it is acceptable in this polity to behave in such a fashion and is to be condemned for it (rather than facilitated) and that covert administration is Wednesbury irrationality and a basis for Judicial Review of NAMA is a howler of a journalistic error.

Barmy

The Minister for Transport has suggested that he will require the occupiers of premises adjacent to public footpaths to clear them of snow and ice.

He has also, unfortunately, indicated that the occupier will be exempted (by the Minister) of legal liability arising from that obligation.

Why bother?

If the occupiers are free of consequences for failure, they won’t clear the pavement in the first place.

The Minister’s proposal is not suitable for legislation; it is suitable for a proclamation. He is, in effect, proposing to issue a call to arms, directed to the Nation, enjoining the citizens to embrace goodness and to avoid evil.

(The title to this post comes from one of my Christmas presents; a series of DVDs of episodes of “Jeeves and Wooster”, starring Hugh Laurie as Bertie and Stephen Fry as Jeeves. My particular interest is in the Drones club and its members; it helps to understand current Irish politics by realizing that the Drones are in charge)

(Slippy pavements are not our major problem; NAMA is the big problem).

The Waste Bin

Our offices are, almost, in Lower Bridge Street and I travel down Clanbrassil Street daily to get to them. It is an ironic occasion every morning for me to join the single lane of traffic traveling north on Patrick Street in front of St. Patrick’s cathedral. Until recently there were two lanes for the north-bound traffic; now, one is a dedicated bus lane.

In 1953, Dublin Corporation determined to ensure that traffic would not be hindered by narrow streets like Clanbrassil Street and Patrick Street. They should be widened, it felt. The Corporation persisted in this feeling from 1953 to 1989 when it finally built a “dual-carriageway” along [some of] Clanbrassil St. and on into Patrick Street.

The fact that the planned Compulsory Purchase Order, to implement this, undermined the values of the properties along the west side of Clanbrassil Street and Patrick Street, from 1953 onwards, is neither here nor there.

What is of moment is this: we no longer care about traffic, that is, the private motor car. We have changed our viewpoint. We cheerfully squeeze it daily into a narrow traffic lane in Patrick Street. That’s not the only change. Dublin Corporation is now Dublin City Council: it hasn’t gone away and it is still an institution of vision.

Currently, it has a vision for a waste incinerator in Ringsend. Perhaps we need such a thing. But will we always? Will we always think it a good thing to burn rubbish? To burn it within the city?

The answer is yes, because the operator of the proposed incinerator will compel us to do it, under the terms of a contract signed by it and Dublin City Council.

Peculiarly, the property rights in rubbish may be more easily defended than the property rights in buildings.

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