Sometimes it is difficult for lawyers to recognize who is the boss.

In Kerr v Molloy and Sherry (Lough Egish) Ltd. [2006] IEHC 364, the defendant contended that the Plaintiff, a contract packer, was more experienced than his then supervisor, an assistant Operations manager and was therefore responsible for the accident in which he was injured. In fact he was working with the supervisor and gave evidence that he believed that the boxes they were stacking were improperly stacked and had informed the supervisor of this. The boxes fell on the Plaintiff. The defendant contended the Plaintiff should have refused to continue the work in the light of his perception. The judge said of this:

“At the hearing of this action, the claim of contributory negligence on the part of the Plaintiff was advanced on a single ground, that the Plaintiff had more experience in stacking these boxes in containers than Mr. O’Donoghue, so that, even though Mr. O’Donoghue was Assistant Operations Manager of the first named Defendant and, the Plaintiff a contract packer provided by the second named Defendant, the Plaintiff ought to have refused to continue with the work when Mr. O’Donoghue, for whatever reason, continued to build up the row of boxes without staggering the vertical spaces between the individual boxes. I find that the evidence did not support the contention that Mr. O’Donoghue had less experience in this work than the Plaintiff, so that he should be regarded as the helper and the Plaintiff found to be the person in charge of the operation. Mr. O’Donoghue’s own evidence clearly demonstrated that he had ample knowledge and very considerable experience of stacking these boxes in containers. In cross examination Mr. O’Donoghue accepted that he would not expect the Plaintiff to challenge him on any aspect of the job. The Plaintiff protested that having pointed out to Mr. O’Donoghue the possible danger involved in stacking the boxes in the manner in which he was doing it, he could hardly be expected to leave the job and go across to the office and complain to Mr. Bannigan, the Operations Manager. I find that it would be wholly unreasonable to expect the Plaintiff to do this.”

What is often overlooked on these occasions is the effect of a finding of breach of statutory duty against an employer.

On this point the judge said:

“In the Plenary Summons and in the Statement of Claim, the Plaintiff pleads his case both in negligence at common law and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act, 1989 and, in particular s. 6 and the Fifth Schedule of that Act. I find that the Plaintiff was not guilty of contributory negligence in relation to his claim based upon breach of statutory duty and is therefore entitled to succeed in full against the first named Defendant. It is unnecessary for the court in these circumstances to go on to consider the position in relation to his alternative claim based upon negligence at common law.”

This is a standard outcome of claims against employers by employees.