Decision on Vicarious Liability Hits Employers Where it Hurts

Anyone who has seen Hans Moleman Productions’ beautifully crafted Man Getting Hit By Football will appreciate the primeval hilarity of a guy taking a smack to the groin.  That’s why the facts giving rise to a claim for damages in the case of Lynch v. Binnacle Limited appear, at first glance at least, quite comical.  But when you go on to read the particulars of the personal injuries sustained by this poor man, the mirth quickly evaporates.

On 24 October 2003 Lynch was employed as a yard man and drover at the cattle mart in Cavan being operated by Binnacle Limited (a company through which Cavan Co-op Mart was trading).  He was one of three drovers who were operating a system being used to convey animals from the mart yard to the sales ring via a weighbridge.

At the time that the accident occurred the two other drovers who had been operating the system with Lynch had temporarily absented themselves to go and look after their own affairs at the mart.  This resulted in Lynch having to enter a pen in which a bullock was present and crossing behind the animal so as to open the gate into the weighbridge, something he would not have had to do had his other co-workers been present.

Lynch suffered a severe direct kick to the groin when he entered the pen holding the Limousin bullock, resulting in him being admitted to Cavan Hospital with swelling of his right testis having suffered severe trauma to both the scrotum and testis.  This gave rise to a haemorrhage, which ultimately caused the loss of his right testicle.

Lynch issued proceedings against his employer in the High Court for compensation for the personal injuries which he had sustained.  In doing so, he was relying on the well-established legal principle of vicarious liability.

This is a legal doctrine which imposes liability on employers for the wrongdoings committed by their employees while conducting their duties of employment.  It’s a legal principle which is extremely important to injured parties in practical terms as it allows those injured to have an effective means of compensation – you’ll generally find that the employee who causes the accident won’t be nearly as well resourced or adequately insured as the company for which he or she is working.

Lynch’s case was heard by Mr Justice White in the High Court.  The judgment leaves the reader in no uncertain terms that the learned judge didn’t exactly take a shine to the plaintiff.  He found Lynch (as well as others) to be “cagey and evasive in the manner in which they answered questions put to them.”  After stating that he had “question marks over the credibility” of the plaintiff the judge confirmed that he was prepared, “with more than a degree of hesitation”, to conclude that Lynch had sustained his injury in the manner that he had stated in evidence.

Mr Justice White went on, however, to find that there was no negligence on the part of Lynch’s employer, observing that it was never suggested in evidence that at any time Lynch had sought and been denied a replacement drover to assist him in his duties or that that he would not have received the co-operation and assistance of the management if he looked for it.  The judge therefore determined that Lynch was the “author of his own misfortune” and dismissed his case.

A three-judge Supreme Court heard the vanquished Lynch’s appeal against the High Court decision, delivering its judgment on 9 March 2011.  In allowing the appeal, the Supreme Court found that the trial judge had erred in law in concluding that Lynch’s employer was not vicariously liable for the injuries sustained.

In coming to his finding that Lynch’s claim should succeed Mr Justice Fennelly noted that when Lynch’s fellow workers abandoned assisting him in the task of getting the animals from the pens into the sales ring they were acting within the course of their employment.  In doing so, they committed a breach of the duty of care owed to Lynch, for which their employer was vicariously responsible.  The judge was satisfied that this liability attached to Lynch’s employer irrespective of the failure of the two co-workers to seek permission to leave their posts or the fact that the absence of both men at the same time was apparently unique.

He went on to find that liability could alternatively be attached to the employer having regard to the fact that the otherwise safe system of work was not in operation on the day of the accident due to the absence of the other drovers.  The employer bore primary responsibility for ensuring that this system was safe and was not entitled to delegate this task in any circumstances.

For her part, Mrs Justice Denham noted that while the two other drovers’ absence was unauthorised, it was clearly known to the employer that drovers did absent themselves from work on occasion and no evidence had been shown of the existence of any system of supervision by the employer to ensure against any such unauthorised absences.  As their absences were connected with the acts they were authorised to do, the employer was vicariously liable for the unsafe system of work which resulted.

It wasn’t all beer and skittles for Lynch, though.  After finding in his favour on the vicarious liability point the Supreme Court went on to observe that Lynch didn’t ask the two other drovers to remain at work, nor did he even ask one to remain.  He didn’t ask anyone to help him.  He didn’t stop processing the cattle and sought no assistance whatsoever.  Being an experienced handler of cattle, Lynch should have appreciated the risk of going into a pen alone with a single bullock.  Taking all of these factors into consideration the level of Lynch’s contributory negligence was assessed at 33%.

This means that when the High Court now goes about the task of assessing Lynch’s damages it must consider what he would have been entitled to if he did not bear any fault for the accident and then lop off one-third of this amount.  Still, I’m sure you’ll agree that two-thirds of something is a damn sight better than 100% of nothing.

This decision is an important and welcome one for individuals who have sustained injuries at work.  It reiterates the courts’ clear determination not to see vicarious liability being watered down and it sets out plainly that an employer cannot delegate or dodge out of the duty to ensure that his employees carry out their duties in a safe place of work using a safe system of work.

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John specialises in personal injury and medical negligence claims. His practice focuses on high value compensation cases. He has extensive experience in this area of litigation for over 10 years. Read more