According to the Health & Safety Authority, vehicles and machinery are the main cause of farm accidents in Ireland, accounting for 50pc of all farm deaths in the past ten years.
Silage season is a time when contractors and farmers are working even longer hours than usual and unfortunately, accidents do happen.
Here are a few common questions that can arise during peak silage time:
Who is responsible if a tractor driver gets injured on the farm during the silage cutting?
It is difficult to give a definitive answer to this question, as it largely depends on the specific circumstances of the accident and the relationship between the parties concerned.
If we assume that the tractor driver is an employee of the contractor, then the contractor is the first to be pursued.
Various factors would be considered in any such case, such as the roadworthiness of the tractor, the training provided by the contractor, risk assessments/safety statements of the contractor, and any negligence or dangerous practices on the part of the contractor would be examined.
This is not an exhaustive list and the investigations required would depend on the particular circumstances of the accident.
The actions of the driver would also be examined to determine whether that person contributed to the accident happening.
The landowner unfortunately will most likely also be pursued as the owner of the property on which the accident took place.
The farmer must be able to show that he/she took all reasonable precautions to ensure there were no hazards on the farm and that the accident could not be reasonably foreseen by him/her.
The Safety, Health and Welfare at Work Act 2005 places a legal obligation on farmers to prepare and implement a safety statement unless they have three or less employees, in which case they can follow the HSA's Code of Practice for Preventing Injury and Occupational Ill Health in Agriculture, and complete the risk assessment therein.
It is important for every contractor and landowner to regularly review their insurance policies with their brokers to ensure appropriate insurances are in place to provide for all farming activities.
Who is responsible for the upkeep of a tractor if a driver uses their own tractor to work for a contractor?
It is important to establish from the outset what type of relationship exists between the contractor and his/her drivers.
For example, is the driver an employee of the contractor or is he/she an independent contractor?
The Revenue Commissioners have a comprehensive code of practice for determining employment status.
Such considerations include whether the person provides labour only; is exposed to any personal financial risk in carrying out the work; is paid a fixed weekly/hourly wage; works for one person/business; can provide the same service to more than one business; provides equipment/machinery; is under the control of another person who directs how, where and when the work is to be carried out.
If the driver is deemed to be an independent contractor, it can be assumed he/she is responsible for ensuring their tractor is roadworthy.
The main contractor and the driver should discuss this issue prior to any work being done and reach an agreement regarding the responsibility for the upkeep/maintenance of the tractor while carrying out work for the contractor.
More importantly, they should also discuss whose insurance policy would be paying out in the event of an accident occurring.
Both parties should also discuss the matter with their insurance companies before starting work.
Who is responsible for damage caused on the farm by an employee of the contractor?
If a farmer's property is damaged due to the negligent actions of the contractor's employee, then the contractor is liable.
Negligence is where someone fails to exercise proper care when doing something - for example, a driver who fails to check his mirrors before reversing a tractor and trailer resulting in him knocking a pillar on the farm.
In this instance, it is a reasonable expectation of the farmer that the driver would exercise sufficient care on his farm so as not to cause any damage, and the contractor should compensate the farmer for the cost of rectifying the pillar.
Whether the contractor can recoup from his employee the money he had to pay to the farmer for any such damage depends on the terms of the employment contract.
Deirdre Flynn is from a farming background and practises as a Solicitor at Deirdre Flynn Solicitors, Tralee, Co Kerry
The information in this article is intended as a general guide only.
While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising.
You should seek legal advice in relation to your particular circumstances at the earliest possible time.