Moral reasons for managing health and safety at workplace
It is fair to say that when people go to work they do not expect to be injured or worse. Every employee expects that in return for the duties they perform they can expect to work in a safe environment and return to their families and friends at the end of their shift. It is also fair to say that whether or not you are a risk taker in life you should not be taking risks at work that jeopardize not only your own safety and health but also that of your colleagues.
It is for these reasons that management has a moral duty to their workforce and others who may use their premises or services (i.e. contractors, visitors, customers etc.) A Duty of Care exists between employer and employee (and those others affected by their actions).
What is Duty of Care?
Duty of care is the obligation to exercise a level of care towards an individual that is reasonable – in all circumstances – to avoid injury to that individual or his property. Duty of care is therefore based upon the relationship of the parties, the negligent act or omission and the reasonable foresee ability of loss to that individual.
A negligent act is an unintentional but careless act that results in loss. Only a negligent act will be regarded as having breached a duty of care. Liability for breach of a duty of care very much depends on the public policy at the time the case is heard.
Differences in the UK Jurisdictions
In Scotland this area of the law is called Delict while in England, Wales and Northern Ireland it is called the law of Tort.
Delict and tort differ from the law of contract. Contracts generally specify the duties on each of the parties and the remedy if these duties are breached. Upon entering into a contract, the parties obtain specific rights and certain duties. In delict or tort these duties exist through the nature of the parties’ relationship regardless of the contractual obligations.
In both jurisdictions, delict and tort attempt to strike a balance between the individual’s wrongful conduct and compensating the victim for his loss.
Much of the law in this area has been developed by the Courts. However, there are now several statutory rules which apply in particular to employment, disability discrimination, health and safety, data protection and occupier’s liability to name but a few.
The development of the law surrounding duty of care has been similar in the different jurisdictions but there are a number of differences between them, for example, the law of defamation in Scotland in comparison to libel and slander in England, and the law of nuisance. However, many of the general principles and the law of negligence are now more or less the same.
The authority for duty of care is the leading Scottish case of Donoghue v Stevenson 1932 SC (HL) 31. This is often referred to and remembered as ‘the one with the snail’. The principles laid down by the Court in this case still form the basis for establishing a duty of care under Scottish and English law.
An outline of the events surrounding this case is set out below:
By an action brought in the Court of Session the appellant, who was a shop assistant, sought to recover damages from the respondent – who was a manufacturer of aerated waters – for injuries she suffered as a result of consuming part of the contents of a bottle of ginger-beer which had been manufactured by the respondent, and which contained the decomposed remains of a snail.
The appellant by her condescendence averred:
- That the bottle of ginger-beer was purchased for the appellant by a friend in a cafe, at Paisley, Glasgow, which was occupied by one Minchella;
- That the bottle was made of dark opaque glass and that the appellant had no reason to suspect that it contained anything but pure ginger-beer;
- That the said Minchella poured some of the ginger-beer out into a tumbler, and that the appellant drank some of the contents of the tumbler;
- That her friend was then proceeding to pour the remainder of the contents of the bottle into the tumbler when a snail, which was in a state of decomposition, floated out of the bottle;
- That as a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger-beer which she had already consumed, the appellant suffered from shock and severe gastro-enteritis.
The appellant further averred:
- That the ginger-beer was manufactured by the respondent to be sold as a drink to the public (including the appellant);
- That it was bottled by the respondent and labelled by him with a label bearing his name; and
- That the bottles were thereafter sealed with a metal cap by the respondent.
She further averred that:
- It was the duty of the respondent to provide a system of working his business which would not allow snails to get into his ginger-beer bottles,
- That it was also his duty to provide an efficient system of inspection of the bottles before the ginger-beer was filled into them, and
- That he had failed in both these duties and had so caused the accident.
The general principles for duty of care were highlighted in this case as:
Does a duty of care exist?
This depends on the relationship between the parties, as a duty of care is not owed to the world at large, but only to those who have a sufficiently proximate relationship. The courts have found that there is no liability if the relationship between the parties is too remote.
Is there a breach of that duty?
Liability will only arise if the action breaches the duty of care and causes a loss or harm to the individual that would have been reasonably foreseeable in all the facts and circumstances of the case.
Did the breach cause damage or loss to an individual’s person or property?
When Donoghue was decided, it was thought that duty of care would only be applicable to physical injury and damage to property; however, this has now been extended, in some circumstances, to where there is only pure economic loss.
Another Moral Reason for managing safety is stated by Dr Tony Boyle in his book Health and Safety: Risk Management as
“An expectation on the part of society in general those organizations will take reasonable care to ensure that the people and activities they manage do not harm other people or their property”.
This expectation has changed over the years with general shifts in the attitude of society to health and safety. What was acceptable twenty years ago in many aspects of life is no longer acceptable today. This is perhaps noticeable in relation to environmental issues which were not even generally discussed twenty years ago.
However people in general are now less tolerant of lack of health and safety. It seems likely that, as people’s expectations of life in general increase, their expectations for a healthy and safe life also increase.
It is therefore a moral responsibility of management to ensure that safe and healthy working environments are provided for their workforce.