Posted By Philip McAleenan
Kevin,
Duty of care derives from the common law obligation to act towards another in a manner that is reasonable in all circumstances, so as to avoid injury to him or his property. It requires that there is a sufficiently proximate relationship between the parties such that obligates them to behave towards each other in way that will not lead to loss or injury either through a reckless act, an unintentionally careless act or an omission. There is a long established history of the courts upholding the duty of care principle and in the modern world the duty is often incorporated into contracts and statutes, which define the nature of the relationship between parties, e.g. employers/ employees, client/ contractor, the specifics of any duty owed by one to the other and the remedies that may be sought for breaching the duty. Nevertheless, the general duty of care, as outlined, continues to exist through the nature of the relationship between the parties, regardless of any contractual obligations.
In this regard it may be argued that statute law, from the primary legislation through its supporting regulations and codes of practice add substance to (make specific) the fundamental duties and rights necessary for the proper functioning of social relationships. Statute law and the courts interpretations, although often the final arbiter, do not present the final word. The qualification of Duty of Care by the legislatures of many States is indicative of the universality of the principle.
For those countries that are party to the intergovernmental OECD the development of and adherence to the corporate governance principles will ensure that the interests and rights of stakeholders are taken into account and respected by the Boards of corporate bodies . The principle is further made manifest through the UN wherein the International Labour Office promotes social justice and internationally recognised human and labour rights in a tripartite structure that involves employers, employees and governments through the development of standards and conventions applicable to the world of work. With 178 member countries , there is little doubt as to the universality of the principle and the advent of Decent Work Agenda (2002), which advocates the necessity for safe work guarantees that the prevention is an international (if not yet a universal) responsibility.
Remember an understanding or awareness of the universality of the principle of duty of care does not automatically translate into knowledge of how we are obliged to act. The issue often only arises when there has been a failure of that duty and individuals or organisations are faced with defending their actions.
Concept of Reasonableness
Where duties are made manifest in statute and contract, the issues are very clear; “what we must do is often prescribed by these statutes and therefore the test of failure, is simplified in proceedings”. Did I fail to do something that was specifically prescribed? If yes, then I have breached a statutory duty, if no, then I have not”. Furthermore was the act or omission such that it would constitute a gross breach of duty ?
However in the generality of the principle above and beyond specific statutes, the issue appears much less clear. The duty of care principle does not prescribe or prohibit any specific actions or behaviours, but requires that we exercise reasonable care in our relationships with others so as not to negligently bring about any foreseeable harm or injury.
It has been argued that this is all to encompassing to have any sensible meaning in the real world or that as an historical accident the duty of care principle is superfluous as cases may well be decided on other grounds that do not depend upon a duty at all . The argument goes that statute law has been developed and has quantified what the principle means, which effectively limits the duty to practical considerations. Yet the principle is neither embedded in some insubstantial realm of academic intellectualism nor is it one that leads to impracticable or unworkable situations. The courts have had a long time to assess and pronounce on the different elements of the principle and have come up with clear interpretations that ensure that the principle is not only workable, but is in many ways stronger than the statutory interpretations that have been developed to make it manifest.
· Negligence is the failure to take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour.
· Foreseeability is the faculty to contemplate the consequences of an act or omission that results from a reasonable standard of competence on the part of the actor .
· Reasonable in the circumstances of the particular case is that which is required from an average and prudent person who is guided by considerations that ordinarily regulate the conduct of human affairs .
When we apply this to the world of work where does that take us?
With respect to risk assessment (a prevention strategy tool), practised in many countries, the concept of “reasonable foreseeability” has been well established since the 1970s, when many of the principal occupational safety and health (OSH) Acts came into force. However, an important yet little publicised court decision by the Irish Supreme Court in 1977 introduced an enlightened understanding of what duty of care means when applied to the work situation, thus further strengthening the case for a universal principle of prevention. In the case of Dalton v Frendo , it was held that having due regard to the age, skill and experience of a worker, he or she will know the hazards associated with their work and be able to apply the controls necessary to prevent harm. In other words, competence entails the ability to carry out work in a safe manner.
((c) Part paper, "Prevention - A Universal Responsibility" presented to the World Safety Congress 2005)
Regards, Philip