CONFERENCE ON
ROAD SAFETY
LEGISLATION
PERTINENT TO
EMPLOYERS, COURT
JUDGMENTS &
FREEDOM OF
INFORMATION
20 MAY 2016
1. INTRODUCTION
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2a. Legislation:
(i) Safety, Health & Welfare at Work Act, 2005
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Section 8:
General Duties of an Employer:
Every employer shall ensure, so far as is reasonably
practicable, the safety, health and welfare at work of his
or her employees.
•
Section 9:
Information for Employees
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Section 10: Instruction, training and supervision of employees
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Section 12: General duties of employers to persons other than their
employees
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•Section 13: Duties of employee
•Section 15: General duties of persons in control of
places of work
•Section 19: Hazard identification and risk
assessment
•Section 20: Safety Statement
(ii) Safety, Health & Welfare at Work (Construction)
Regulations 2006 to 2013
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2b. Brief discussion on pertinent case law
and examples.
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2c. Criminal Liability:
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Section 80 of the Safety, Health and Welfare at Work Act, 2005:
personal liability of directors and senior officers of undertakings in relation to the health and
safety of employees;
on conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term not
exceeding 2 years or both.
•
Guidance for Directors and Senior Managers on their Responsibility for Workplace Safety and Health:
The Health and Safety Authority (2007) states:
All directors and officers of undertakings who authorise or direct any work activities
must understand their legal responsibilities and their roles in governing safety and
health, upholding core safety and health values and setting good safety and health
standards for their business. The most senior management in the organisation
must ensure that all board members have a clear understanding of the key safety
and health issues for the business and are continually appraised of the risks likely to
arise. Whatever role directors play in the running of the undertaking, they must have,
or ensure the availability to the undertaking of, the basic knowledge and safety and
health competence that their role requires.
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The Corporate Manslaughter Bill, 2013:
creates an offence of corporate manslaughter where an undertaking causes the death of a
person by gross negligence which it is proposed will attract criminal liability and monetary
penalties.
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3a. Doctrines of Misfeasance and Nonfeasance
The doctrine of misfeasance
provides that liability in negligence
will arise following the improper
performance of an otherwise lawful
act,
e.g. where there is an act of
positive negligence.
Where a local authority performs
its duty of repairing a highway but
does so in a negligent manner, it is
guilty of misfeasance.
The doctrine of nonfeasance
operates to limit the liability in
negligence to only positive acts but
not for a passive failure to act:
The pothole: ‘wear and tear’ v
negligent construction;
The doctrine has been applied to
the provision of lighting, temporary
dangers on the road (such as oil,
water, snow and ice), the erection
of signage, the clearing of ditches,
the lopping of overhanging
branches and repair of negligently
created defects caused by
predecessor authorities.
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3b. Précis of Case Law
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Local authorities have a non-delegable duty at common law to keep
the highway in repair. If a council carries out or causes to be carried
out works on the highway and by those works negligently injures a
third party, the council is liable for the resulting damage, as in
Clements v. Tyrone County Council. [1905] 2 IR 542
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(Vacated) Loughrey v. Dun Laoghaire County Council: [2012] IEHC 502
Cross J. stated that:
“[the] local authority in this case is acting as the highway authority and the
duties of the defendants as highway authority are similar in relation to
pavements as on roadways.
The law in Ireland is that whereas a highway authority may be liable for
misfeasance i.e. acts of a positively negligent character regarding the
maintenance or repair of the highway, they will not be liable for nonfeasance,
that is, the failure to maintain the highway, however negligent that failure may
have been. In Kelly v. Mayo County Council [1964] I.R. 315, Lavery J. at p. 318 to
319, stated: "As such authority they are liable in damages for injuries suffered
by a road user if they have been negligent in doing repairs or in interfering with
the road. They are not liable for injuries suffered or caused by the want of
repair of a road. This is the familiar distinction-they are liable for mis-feasance
but not for non-feasance." The legislature, by virtue of s. 60 of the Civil Liability
Act 1961, provided that a road authority will be liable for damages caused by
reason of their failure to maintain adequately a public road in certain
circumstances.”
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(Vacated) Loughrey v. Dun Laoghaire County Council: [2012] IEHC 502. (Contd.)
Cross J continued;
“It is trite law, however, that this section was specified as not to come into
operation until a day fixed by order of the Government and no such order has
yet been made. The Supreme Court in The State (Sheehan) v. Government of
Ireland [1987] I.R. 550, held by a majority that s. 60 was an enabling provision
only, vesting a complete discretion in the Government. Since the enactment of
the Civil Liability Act, generations of skilful civil engineers have struggled
manfully to give practical effect to the intentions of the legislature in relation
to s. 60; however, the law still remains in its ancient purity in this jurisdiction.”
Cross J. held that as a matter of probability this differential between paving
slabs of 5mm to 6mm or a tenth of an inch. did not arise due to normal wear
and tear but was caused by negligence in construction or specification.
This Judgment was vacated following resolution on filing of a Notice of Appeal.
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4. Freedom of Information Act, 2014
The three main rights that were provided for under
the 1997 & 2003 Acts are replicated in the 2014 Act
and are as follows:
a legal right for individuals to have personal
information relating to them amended where
it is incomplete, incorrect or misleading under
section 9;
(ii) a legal right for any person to obtain reasons
for an act of a FOI body which affects them and
in which they have a material interest under
section 10; and
(iii) a legal right for any person to access records
held by a FOI body under section 11.
An individual can request the following records:
(i)
Any records relating to the individual
personally, whenever they were created;
(ii)
All other records created after the 21st
October 1998 for all Local Authorities.
(i)
A record can be a paper document or information
held on computer. It includes, for example,
printouts, maps, plans, microfilm, audio-visual
material, disks and tapes.
The 2014 Act provides for a completely new fees
regime.
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4. Freedom of Information Act, 2014 (Contd.)
Exemptions:
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Part 4 of the 2014 Act:
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section 29: Deliberations of FOI bodies.
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section 30: Functions and negotiations of FOI bodies.
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section 31: Exempt from production in court proceedings on legal professional privilege grounds.
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section 32: Could prejudice or impair the fairness of criminal or civil proceedings.
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section 35: Information obtained in confidence.
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section 36: Commercially sensitive information.
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Section 5 of the Data Protection Act, 1988, as amended
It is advisable that there is communication between FOI & Data Protection Officers & Insurance Handlers
within an organisation & that organisation specific advice is sought on foot of requests
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