Health And Safety Duties To Persons Other Than Employees

Author:Mr Deborah Spence and Deirdre O'Mahony
Profession:Arthur Cox
 
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In addition to the duties owed to employees, employers have legal obligations to safeguard the health and safety of others, including visitors and trespassers, at their workplaces. Failing to address those obligations exposes employers to criminal and civil liability.

Criminal Liability

The Safety, Health and Welfare at Work Act 2005 (the "2005 Act"), under Section 12, imposes a duty on every employer to "manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare." In addition, Section 15 imposes a duty on persons in control of a non-domestic place of work where persons other than their employees are working to ensure, so far as reasonably practicable, that the means of access to and egress from that workplace, or any article or substance provided for use at that workplace are safe and without risk to health.

Breach of either duty is an offence, which may result in potential fines of up to €5,000 or imprisonment for a term of up to 12 months, or both, for each offence prosecuted in the District Court or, for more serious offences prosecuted on indictment in the Circuit Court, to a fine of up to €3 million or imprisonment for a term of up to two years, or both, for each offence. In a recent (July 2011) Dublin Circuit Criminal Court prosecution, an employer company was fined €250,000, under Section 12, for the fatal injury of a member of the public struck by a bundle of fencing which fell from the top bay of storage racking at a garden centre.

Civil Liability

Employers may also be exposed to civil liability in respect of persons other than their employees, under the Occupier's Liability Act 1995 (the "1995 Act"). The 1995 Act imposes duties on occupiers towards trespassers and recreational users (not to injure or damage his/ her property intentionally and not to act with reckless disregard for the person or his/her property) and towards visitors (to take reasonable care). In determining liability, the 1995 Act sets out specific criteria which must be considered by the courts, including:

whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises; whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person...

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