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D is for duty of care

In UK civil law a person can seek compensation if they can show they were injured by another party’s negligence or by their breach of a statutory duty, and that the defendant owed a duty of care.

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The question of to whom we owe a duty of care was extended by the “ginger beer” case of Donaghue v Stevenson in 1932. The initial judgment had been that Ms Donaghue could not seek compensation for her illness caused by the rotting snail found in the ginger beer bottle because she had not bought the drink herself.

However, the House of Lords held that the manufacturer owed a duty of care to whoever consumed the drink if it was reasonably foreseeable that a failure to take care might lead to an injury. The duty of care was owed to all “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question”.

Feeding decaying gastropods to consumers of fizzy drinks is fairly obviously a lapse in your duty of care but there are limits on how far the duty extends.

Caparo, a business involved mainly in the steel industry, decided to buy shares in a company on the basis of an audit report prepared by accountancy firm Dickman. The report was not accurate about the profits of the company, causing Caparo to make a loss. The House of Lords appeal (Caparo Industries v Dickman, 1990) determined that, if anyone reading the report could claim for damages, this would open the floodgates to further claims, and an additional test of whether it is “fair, just and equitable to impose a duty of care” was introduced.

This was challenged by those who counted themselves as victims of the Hillsborough stadium disaster in 1989, not for being at the ground and involved in the crush that resulted in nearly 100 deaths and injuries to more than 750 people, but for the psychological harm they suffered watching the disaster on television. In the 1991 case against the chief constable of South Yorkshire police, the appeal judges ruled that, though it was foreseeable that those watching the football at home – knowing their loved ones were in the crowds – would suffer psychological distress, it would not be reasonable to extend the duty of care this far.

Feeding decaying gastropods to consumers of fizzy drinks is obviously a lapse in your duty of care

Duty of care is relative, not absolute. The greater the foreseeability and the greater the risk of harm, the greater the duty of care. In the 1951 case of Paris v Stepney, garage worker Mr Paris was using a hammer to remove a “u” bolt when a piece of metal flew off and blinded his one good eye. His employer was deemed to owe him a greater duty of care because the loss of his one good eye had a greater impact on him than a two-eyed worker losing a single eye. A similar principle runs through more recent cases of work-related stress – once an employer knows that an employee has a stress condition, the duty of care obligation is greater than towards an employee who appears to be coping well with their workload.

In successful cases against directors, prosecutors can normally point to a decision by a director that contributed to the accident. Does a director who avoids safety and health issues stay out of the duty of care loop? In Leading Health and Safety at Work (bit.ly/1yjrgbq), the Health and Safety Executive (HSE) warns: “Directors cannot avoid a charge of neglect ... by arranging their organisation’s business so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.”

In a case in 2012, in which three directors of Lion Steel Equipment were originally accused of the gross negligence manslaughter of an employee, the Crown Prosecution Service argued that the trio owed every employee a duty of care. This was regardless of their relationship with the employee or of their management responsibility for the safety system and safe place of work. This was never fully tested because the individual charges were dropped when the company pleaded guilty to corporate manslaughter.

However, it is clear that organisations cannot abdicate duty of care to consultants or contractors. A quarrying company charged with having inadequate risk assessments for respirable silica exposure thought that the consultant it had appointed could take the penalty. The consultant and the employer were both fined; the HSE principal inspector pointed out: “You cannot outsource your responsibilities – the duty of care remains with you as an employer and the selection and use you make of consultants is crucial.”

Attempts to extend an organisation’s duty of care to those in their supply chain – as in the case against Canadian retailer Loblaw and its auditor Bureau Veritas in relation to the loss of lives at the Rana Plaza building in Bangladesh – have so far been unsuccessful. However, as similar cases are brought, organisations would be smart to consider a wider scope for their duty of care.

 

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Bridget Leathley is a freelance health and safety consultant, providing risk management support in facilities, retail and office environments.  She delivers face-to-face safety training including IOSH and bespoke courses, and contributes to e-learning courses through evaluations and design work.  She has been writing for health and safety publications since 1996.  

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