The Irish Supreme Court handed down its judgment in Lynch v Binnacle Ltd t/a Cavan Co-Op Mart [2011] IESC 8 on 9 March 2011. The case concerned the question of whether an employer could be vicariously liable for an injury occurring in the absence of employees who were required for the successful operation of a safe system of work.

The appellant was employed as a drover at a cattle mart operated by the respondent company, and his duties included helping to operate a weighbridge system. At the time that the accident occurred two other workers who had been operating the weighbridge system with the appellant had temporarily absented themselves to attend to their own affairs at the mart. This meant the appellant had to enter a pen in which a bullock was present in order to open the gate into the weighbridge, something he would not have had to do had his other co-workers been present. The appellant suffered a severe direct kick to the groin from the bullock, which ultimately resulted in the loss of his right testicle.

The appellant had issued proceedings in the High Court against the respondent on the basis that it was vicariously liable for the injuries which he had sustained. While questioning the credibility of the witness, the judge stated that he was prepared, “with more than a degree of hesitation”, to conclude that the appellant had sustained his injury in the manner that he had stated in evidence. The Court did find, however that there was no negligence on the part of the respondent, observing that it had not been suggested that the appellant had at any time sought and been denied a replacement drover to assist him in his duties, nor that he would not have received the co-operation and assistance of the management had he requested it. The judge therefore determined that the appellant had been the “author of his own misfortune” and dismissed the case.

Denham J, delivering the lead judgment of the Supreme Court, held that the trial judge had erred in law by concluding that the respondent was not vicariously liable for the injuries sustained and allowed the appeal.

Noting that while the other drovers’ absence was unauthorised, it clearly was known to the respondent that drovers did absent themselves from work on occasion and no evidence had been shown to support the existence of any system of supervision by the respondent to ensure against any such unauthorised absences. Their absence was so connected with the act they were authorised to do that the respondent was vicariously liable for the unsafe system of work which resulted as to result in an unsafe system of work.

Fennelly J of the Court noted that when his fellow workers left the appellant in the task of getting the animals from the pens they were acting within the course of their employment, and in doing so, they committed a breach of the duty of care owed to the appellant, for which the respondent was vicariously responsible. This liability attached to the respondent irrespective of the failure of the two co-workers to seek permission to leave their posts or the fact that the absence of both men at the same time was unique.

He further held that the same result could be reached alternatively by attaching liability on a vicarious or non-delegable basis. The otherwise safe system of work was not in operation on the day of the accident due to the absence of the other drovers, and for this the respondent bore primary responsibility. In addition, the respondent was not entitled to delegate this task in any circumstances.

Both judges, however, noted that the appellant, an experienced drover, had not asked the two other drovers to remain and nor had he sought no assistance whatsoever, and thus the appellant would have a contributory negligence of 33%.