The musings by the Director of Public Prosecutions as reported HERE warrant a book written on them. He has pointed to the need for, and social value of whistleblowers.

This being a blog, a posting will have to suffice.

His musings were followed by a proposal from the Minister for Justice, the terms of which are currently obscure.

Assuming that there is no co-ordination between the Minister for Justice and the DPP, and assuming them to be decent, well-meaning office holders, why do these pronouncements appear as if the speaker was the first to address the problem?

The Labour Party tabled a Whistleblower’s Bill and it went nowhere. It was within the power of the Minister’s party to drive it, or to kill it. It was killed.

Transparency International has compiled a review of the lack of protection for whistleblowers in Ireland. See it HERE.

Transparency International recommend one single piece of legislation to protect (and promote) whistleblowing. As they point out, the UK did exactly that in 1998 with the Public Interest Disclosure Act. See it HERE
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Of particular interest to this blog (we are personal injury lawyers, albeit multi-tasking) are the provisions of Section 27 of the Safety Health and Welfare at Work Act 2005. See it HERE.

Now read the obligations imposed on employees HERE by Section 13 (h) of the Safety Health and Safety at Work Act 2005.

The DPP thinks that recourse to the Employment Appeals Tribunal is cold comfort for a dismissed employee whistleblower.

Surely the Government knew this in 2005, if the DPP can know it now?

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.

There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

The government seems to have a furnace somewhere to dispose of old banknotes, such is their fondness, to the point of habit, for burning public funds.

Why else does the taxpayer have to pay for a contaminated pork recall?

After all, we know with reasonable, if not perfect, certainty where the contaminated pork originated.

We appear to know that the output of that factory accounted for 10% of Irish pork in the retail market. That, in the judgment of the Government, justified the recall.

Why is the taxpayer the unwitting insurer of the farmers, the factory, the processors and the retailers?

Was the recall not, again, an incident of a market loss? Is there some large Irish Insurer whose policies cover this loss and whose business cannot be allowed to fail for unknown reasons?

Is there a peculiar and particular meaning to the phrase “a perfect market”, in Ireland?

Vibration would not be readily seen, by workers, as a danger to health in the workplace. It is, and the injury can be serious.

Many industrial machines transmit vibration to the body. Some, like vehicles, can transmit the vibration to the full body. Others affect a limb or part of a limb.

Sustained exposure to vibration can produce permanent damage. Nerves and blood vessels may degrade and the limb will lose sensation. “Whitefinger” is a term for this kind of damage.

If alleviated promptly the sensation may return to the limb. Without attention, the onset of gangrene is a possible end result, requiring amputation of the affected limb or part.

A typical location for vibration injury is the carpal tunnel in the hand. The median nerve and nine flexor tendons pass through the carpal bones. With damage, the nerve can be pinched and produce numbness, tingling, burning, clumsiness and pain in the hand.

If machinery has not been properly designed the expense of “retrofitting” to eliminate the vibration may dissuade the employer from its obligations to keep the worker safe.

is a common and infrequently recognised cause of injury. It is an avoidable result of using many industrial tools such as chain saws, grinding, sanding, hammering or polishing tools.

Retrofitting is not easy when the whole machine is the cause of the vibration.

In a study in 1960 of 371 tractor drivers, long periods of tractor driving over rough terrain was shown to cause stomach complaints and spinal disorders. There was a direct relationship between the severity of the complaints and the length of service of the drivers. Kidney damage was also indicated by the presence of blood in urine.

For specific statutory duties on vibration see Part 5 Chapter 2 of the Safety, Health and Welfare at Work (General Application) Regulations 2007

See HERE for the Employers’ duties .

Repetitive Strain Injury is a common work-related injury.

It results from inflammation of the muscles, tendons and nerves of some part of the body. Despite its name, it does not always result from a repetitive action, although it is commonly found to result from that. A constant load on the body or a part of the body can cause the condition. It can be very severe and debilitating.

The condition is on the increase in Ireland.

Assembly workers in some employments may be exposed to very high repetitions of movements daily. The condition may have different names; Synovitis, Bursitis, Tenosynovitis, Tendinitis, Peritendinitis, Epicondylitis or even Carpal Tunnel Syndrome.

Symptoms can consist of: Pain, Tingling, Numbness, Swelling, Crepitus, Disability, Loss of function.

Symptoms may continue even after work. The condition can become permanent.

It is generally agreed that skin disease is the commonest occupationally-caused disease. According to the United Kingdom Health and Safety Executive it accounted for 59% of all reported occupational disease in 1978-79. This reflects the Irish experience in proportional terms, although the total Irish figures are deceptively low. Although the skin is a remarkable and complex organ, the stresses applied to it in some workplaces are extreme and it is unable to perform it’s usual valuable functions. These include the provision of a barrier to harmful bacteria and retention of liquid in the body tissues.
The skin has a number of layers, the uppermost consisting of a thin layer of acid fat soluble secretions from the sebaceous glands. Solvents or prolonged immersion in water will remove this layer. The lower layers are subject to damage from acids, abrasions, cuts, and solvents.
The effects vary, but dermatitis is by far the most frequent manifestation, representing 80% to 90% of the problem. It may arise from a number of causes including physical sources such as heat or cold or excessive exposure to water but most of it is caused by contact with a chemical agent of one or more kinds. Some of these will cause dermatitis in every person exposed to sufficient concentrations, while others are active only as an allergic reaction in sensitive individuals. The symptoms are similar whether the agent is irritant or allergic. They can consist of redness, rash, dry scaling, wet weeping, sores or crust formation.
The agents are very numerous; they include cement, rubber, paint, some woods, tars, dyes, detergents, bricks, oil, leather. The following also cause dermatitis;

1,2-dichloroethylene, 1-2-dichloroethane
2,4-dinitro-O-cresol, Acetates
Acetic anhydride, Acetonitrile
Acrylonitrile, Alkalis
Allyl alcohol, Anthraquinone
Antinomy, Barium Compounds
Benzene Hexachloride (Lindane), Calcium cyanamide
Chloride of Lime, Chlorinated biphenyls
Chlorinated naphthalenes, Chloronitroanilines
Chloronitrobenzenes, Chlorprene
Dinitro-phenols, Epoxy resins
Ethyl acetate, Hexachlorobenzene
Hexamethylene tetramine, Hydroquinone
Isocyanates, Malathion
Naphtols, Pentachlorphenol
Phenols, Picric acid
Piperazine, Polychlorinated Biphenyls
Pyridine, Tetryl
Tin compounds, Toluene di-isocyanate
Vinyl acetate, Xylenols

Dermatitis is caused by exposure and appears at the point of contact. The agent may be air-borne, in which case any exposed skin will show symptoms. Skin covered by clothing will be untouched, often resulting in a sharp border line between affected areas and clear skin. If direct contact is involved, the hands are obviously most at risk, but the forehead or other parts of the head may be also affected through contamination from the hands. Occasionally, the wearing of gloves will have protected the hands and only the head will show symptoms. Sometimes the thighs are affected, even through clothing, by rubbing with the hands during work.
Allergic dermatitis requires a period of sensitization to the active agent. This may occur over a variable period of time during which there will be no symptoms. Thereafter, symptoms will appear with each contact with the agent.
Dermatitis is a prescribed occupational disease.

An employer owes duties to employees under Common Law and statute. The common law duties have been developed by the courts as they decide cases on accidents at work.
The employer’s Common Law duties are:
a) To provide a safe place of work
b) To provide proper tools and equipment
c) To provide a safe system of working
d) To provide competent staff

In addition an employer owes duties under statute to safeguard employees in the workplace.
Under the Safety, Health and Welfare at Work Act 2005, (”SHWWA”) (Section 8)) the employer’s duty is to ensure the safety of employees and in particular;

a) to provide by management and action, safety at work;
b) to provide by management and action that improper conduct does not occur;
c) to provide a safe place of work;
d) to provide safe plant or equipment;
e) to provide safe a safe system of work;
f) to provide safety information, instruction, training and supervision to employees;
g) to make a risk assessment and to implement measures to protect workers from those risks;
h) to provide protective clothing or equipment where hazards can not be completely eliminated;
i) to make emergency plans; and revise them as required;
j) a guard against hazards of particular articles or substances;
k) to provide welfare facilities and maintain them;
l) to provide a competent person to ensure safety and health at work of his employees.

Assessment of risk is the subject of academic study. It has the appearance of common sense but is far removed from that. For the purposes of SHWWA 2005, it involves four aspects.

• The risk must be identified in the first place.

• Secondly, it must be than assessed or quantified as a statistical possibility. In other words the likelihood of the perceived possibility must be measured.

• Thirdly, the measure of damage potentially arising must be identified.

• Fourthly, the practicability of avoiding the risk must be assessed.

This last matter is a question firstly, of physical possibility and secondly, cost. There is no certainty that each of these aspects can be perfectly ascertained. This is the norm In risk assessment
The standard of knowledge demanded of an employer in discovering the hazards in the workplace is that of the best available information. If the information becomes available, the employer is expected to promptly become aware of it. Such information is likely to first become available in countries other than Ireland. Employers must monitor the field of occupational safety and health on a global basis. Most occupational hazards in Ireland will, already, be well known as such.
Having recognized the hazard or risk, the employer must calculate the probability of its occurrence. This assessment is normally based upon inadequate evidence from a purely scientific point of view. This is not a real handicap or valid criticism. “Scientific” standards are not the norm in practical affairs and risk assessment is a practical matter. In addition, if scientific research is available to assist, it is very valuable, but it need not be conclusive. Usually, the assessment is based upon information arising from previous accidents, insight and skill in engineering or other technology, and/or information arising from experiments on animals with subsequent extrapolation to humans.
This mix is unlikely to be sufficient to produce a perfectly scientific statistical assessment of risk. So what? In practice decisions cannot be postponed. Only the available information can be used and, therefore, it must be used.
It may become more obvious in some circumstances than in others that risk assessment involves some ordering of values or priorities. Even continuing the status quo is a decision based on a value judgement. Cost effectiveness is a frequent determinant on such occasions. The value which society places on human health or life is another, even if no reference is made to it overtly.
If the full extent of the potential for damage amounts to something no worse, to speak in terms of farce, than the scuffing of the patent shoes of the sales manager, then the risk to be guarded against is negligible. This judgement remains valid even if the statistical probability shows that there is a risk of the damage occurring every six months. If, however, the full extent of the potential damage amounts to the loss of a limb of a worker or the death of a worker the risk to be guarded against is very large. This will apply even if the measured probability of the occurrence is as remote as once every 50 years.
What if the probability is very remote and the foreseeable damage is catastrophic? The final arbiter will be cost. This is not a reference to the capacity of the employer to pay for the avoidance of the hazard. That issue is irrelevant. It is a social judgement on the value of the money spent on avoiding the risk. If the amount of money required to be spent is large compared to the remoteness of the risk and the potential for damage, the risk need not be guarded against. Following the Alpha Piper oil-rig disaster in the North Sea, the U.K. Government set up a committee of inquiry into the event. Following the delivery of the report of Lord Cullen, the UK Department of Energy stated that mathematical standards of acceptable and non-acceptable risks would be introduced throughout the industry for the first time. The report itself went on to criticise Occidental Oil, the owners of the oil-rig, and the Department of Energy. It recommended that all offshore installations adopt a formal safety assessment system “involving the identification and assessment of hazards over the whole life cycle of a project……. The techniques used include hazard and operability studies; quantitative risk assessment; fault free analysis; human factors analysis; and safety audits”.
The sum considered proper to be spent to guard against a catastrophe is substantial, probably irrespective of the remoteness of the risk.
What does this mean in every day terms? It might require the closing down of a factory. This might happen because the risk cannot be guarded against, or the employer cannot, or will not, spend the money required to install the protection. There are mechanisms in the SHWWA 2005 for imposing this judgement on an employer. However, the decision may remain with the employer. There are hard reasons why the employer will not close down where the circumstances call for it.
There are in place standards for the assessment of value of loss or damage. Under the Civil Liability Act, the basis for compensating dependents and close relations of a deceased person have been in use for many years. The principle of compensation is approached from two directions. The Act sets out the sums of money to be paid for the pain and grief on the loss of the deceased. It varies with the relationship. Beyond that, the compensation is calculated on the basis of the financial loss suffered by the dependent on the death of the deceased.
There are serious drawbacks with this approach. It means that all lives are not of equal value. In addition, it hardly reflects the views of the deceased person. Put another way, the prospect of death from a known and avoidable risk is not readily faced by most people in circumstances where it is not guarded against for reasons of cost benefit.
Cost benefit has been shown to produce strange results. Dr. John Adams of the Department of Geography at University College London has suggested, on the basis of the Roskill Inquiry report (on the third London airport), that the net benefit to the economy, given the cost benefit value of a female human life, lay in having an aircraft crash on a woman.
Cost benefit analysis is of greater familiarity to managers than risk assessment. The opinion of where a cost benefit lies varies with the industry or business. It also varies with the society. It is a fact that the levels of compensation for personal injury in Britain are low. In the United States they may be too high. Given such variation, cost benefit analysis cannot be said to be straightforward and generally acceptable. For a manager making a decision to spend money, or not to spend money, such matters may not appear relevant. He will feel, having ascertained the statistical probability of an event, that a particular risk is acceptable. He will know nothing of the survey methods of the study that produced the probability figure. It may have included people who are not and never were at risk. They were not in the “danger zone”. Their presence in the survey makes a risk appear more remote than it really is, for the people who really matter, the people who are actually exposed.
There is another view to be taken: there is a social cost to a death or injury as much as an industry cost. The Environmental Risk Assessment Unit of the University of East Anglia identified a United Kingdom social cost of a life at about £266,000. This included £135,000 for lost output; £128,000 for pain and suffering; £1,300 police and medical costs; £1,750 damage to property.
This is higher than the amount the Nuclear Industry in Britain is prepared to spend on saving a life, if the person whose life is in issue is an employee. For an employee it will spend £500,000: for a member of the public it will not spend more than £200,000. The difference is based upon the perceived differences of exposure to risk.

Three babies in Letterkenny General Hospital have been infected with MRSA.

Clearly, the Hospital is answerable for these infections. They have occurred in the health care setting; the babies cannot be accused of any contributory negligence in the matter.

Their respective parents cannot be held responsible either; they had contact, in each case, with just one baby.

Indeed, these are absurd notions, born of desperation to dodge responsibility.

They have meaning only to medical practitioners and health care managers willing to delude themselves that they can avoid shouldering responsibility for such infections in the absence of being confronted with a video or other visual record (and therefore, presumably unchallengeable) of the mechanism of infection.

What is now clear is that the Chief Executive of Letterkenny General Hospital knows someone in the Hospital is the source of these infections.

He is obliged in criminal law to ensure that person does not cause any more infections.

John Breslin has received a letter. Read the letter HERE. His post is interesting, and, as Paul observes, raises unanswered questions. What springs to mind is the challenge in trying explain the issue to the Irish Supreme Court (or any court) if the need arose.

PS. Having seen what happened to Raj Persaud, I expressly confirm I got my tip on this topic from a member of my office team. (I have no desire to find myself investigated like Raj or pursued for what momma saw, or thought she saw).