In Duke v Dunnes Stores and Greene v Dunnes Stores, the Court of Appeal overturned two High Court judgments which held the employer, Dunnes Stores, liable for the injuries of two separate employees who slipped on “conspicuous” or “obvious” wrapping in store. In welcome judgments for employers, Mr Justice McGovern both cited and upheld the principle that “…the duty of an employer to their employee is not an unlimited one.” So how did the employer in these cases successfully discharge their duty of care, and why did the Court of Appeal overturn the findings of liability against them? Let’s take a closer look at the judgments.

The facts and original decisions

The Duke case

In this case, the plaintiff became entangled in, and slipped on, shrink wrapping attached to a pallet and on the floor as he was retrieving frozen pizzas in the employer’s store freezer room. The plaintiff fractured his cuboid bone in his right foot.

The plaintiff accepted he had received training from the employer which stressed the importance of housekeeping, keeping floors free from obstruction and to “clean as you go”, both upon induction and as a refresher course. The plaintiff also accepted that the shrink wrap on the pallet and floor was obvious and that he should have seen it.

It was also accepted that the shrink wrap on the pallet and floor was likely to have been caused by another employee and as such the employer could be vicariously liable for that employee’s actions.

The plaintiff was awarded €36,320 in damages (accounting for 20% contributory negligence by the plaintiff).

The Greene case

In this case, the plaintiff left her checkout position to exchange two bottles, and she apparently slipped on a wrapper which would have been wrapped around a roll of refuse bags for sale and injured her shoulder, arm and elbow.

The employer provided evidence from a security manager, who also walked the floors in a hygiene capacity, that five minutes prior to the accident there was nothing on the floor. The security manager also had a floor cleaning inspection record to support his evidence. The employer also provided evidence from a Consulting Forensic Engineer who informed the Court that the wrapping on which the plaintiff slipped was conspicuous and would have been seen by a person keeping a proper lookout. The engineer also described the cleaning and inspection system operated by the employer as “first class”. Neither of these points of evidence were challenged by the plaintiff.

The High Court found that the probable cause of the source of the wrapper was a member of the employer’s staff and concluded that it was put there when the security manager or another member of staff was not in a position to identify it. The wrapper created a hazard and, having been put there by a member of staff, the employer was vicariously liable.

THE LAW

Section 8(1) of the Safety, Health and Welfare at Work Act 2005 (“SHWWA”) provides “Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.” [Emphasis added]

“Reasonably practicable” under section 2(6) of SHWWA “in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”

Under section 13 of SHWWA employees are also under a responsibility to “take reasonable care to protect his or her safety, health and welfare…”.

The Court of Appeal

In the Duke case, the Court of Appeal held:

• when looking at the duty of an employer, the Court must look at section 8 of SHWWA;
• the inclusion of the words “so far as is reasonably practicable” is important and means there is not strict liability upon employers;
• where an employer raises a defence of a proper training programme and a proper cleaning and maintenance regime, the Court has a duty to analyse such evidence in the context of what is reasonably practicable.

The Court of Appeal concluded that the High Court had not analysed the evidence to determine whether the employer had established a defence that they had ensured the health and safety of the employee so far as is reasonably practicable. Nor had the trial judge engaged with the employee’s common law and statutory duty to take reasonable care for his own safety and follow the instructions he had been given in training.

The Court of Appeal considered that, while it is true to say that the accident would not have occurred but for the negligence of another employee leaving the shrink wrap on the pallet and floor, the proximate cause of the accident was the failure of the employee to keep a proper look out and adhere to the instructions he had received in training.

In relation to the Greene case, the Court of Appeal held:

• it was not necessarily a member of staff who was responsible for the wrapper on which the plaintiff slipped – taking into account the security manager’s evidence that he did not see a wrapper shortly before the accident, it was plausible the wrapper could have been put on the floor by a customer;
• the unchallenged evidence was that the wrapper was conspicuous and the inference which can be drawn from this is that the plaintiff ought to have seen it;
• it was accepted that the employer had a “first class” system of cleaning and inspection;
• the employer had trained the plaintiff and other employees, emphasising the need for good housekeeping and that employees should clear as they go, which would involve picking up any item from the floor which might represent a hazard.

Again, the Court of Appeal held that the trial judge failed to engage with the issue as to whether or not the employer had fulfilled its common law and statutory duty to ensure health and safety so far as is reasonably practicable. There was no reference to the training that the plaintiff received on the system of cleaning and inspection. Accordingly the Court failed to apply the proper legal test in assessing liability.

In both the Duke and Greene cases the decisions of the High Court were overturned and the appeal by the employer was upheld.

ADVICE for employers

The employer in these cases was able to avoid liability for the slips at work due to its “first class” cleaning and inspection system, employee training on the system, and the failure by the particular employees in question to see a “conspicuous” or “obvious” hazard. These Court of Appeal decisions are welcome reminders that:

1. employees also bear responsibility for their own health and safety at work; and
2. 2employers are not strictly liable for all accidents which may happen at work. An employer’s obligation is to ensure, so far as is reasonably practicable, the safety, health and welfare at work of its employees.

To reduce the risk of being found liable for workplace accidents, we would recommend:

• An assessment is conducted to consider what risks or hazards are potentially posed to employee health and safety at work.
• Training is created to provide employees with the tools, equipment and processes to prevent or mitigate the potential health and safety risks.
• Training should be provided at employee induction, and at regular intervals throughout employment, to take into account fading memories and possible changes to the work environment generally or for a specific employee.
• Care must be taken to ensure employees understand the content of any training, e.g. by assessment.
• Records are retained of employee attendance at health and safety training and attendance is mandatory.
• Efforts are made to culturally embed the health and safety ethos and requirements of the company, e.g. employees hold each other accountable to adhere to safety standards.