Andrew Douglas
Principal, Douglas Workplace and Litigation Lawyers
Introduction
WorkSafe Victoria recently
formed an Alliance
with OHS professional associations and educational institutions to better
support Victorian employers in making their workplaces safer. This Alliance is called Health
and Safety Professionals Alliance (HaSPA).
The aims of the Alliance
are to:
- Promote OHS as
an area of professional practice, - Enhance the
quality of OHS professionals, - Improve OHS
service delivery to workplaces, and - Improve OHS in
Victorian workplaces.
In particular, the Alliance
aims to provide assistance to small and medium sized employers, and to promote
the value of working with professional associations. It is expected that each OHS
service provider will remain independent, but will maintain a
connection with an association. It is hoped that this will improve the quality
of OHS practitioners, give practitioners the opportunity to be supported by a
professional body, result in updated service standards and improve
professional development. It is also hoped to achieve complaints handling
systems that are transparent and consistent.
As a first step HaSPA has recently completed and launched a
new Code of Ethics and Service Standards for Professional members of OHS
Associations. The goals of the Standards are to develop minimum standards of
ethics and service for professional members of OHS associations, and to promote
self-regulation across the industry. The Standards also set down a procedure
for the certification of professional member of an OHS Association.
As the role of
independent health and safety consultants is promoted, the question arises as
to whether safety professional could incur personal liability for advice given,
or for any other act or omission.
The starting point
is that every health and safety practitioner, manager
or consultant has a professional responsibility to the employer they are
working with, as well as to the people who may be affected by his or her actions
or omissions. This is no different from other professions, who owe an implied
duty to take reasonable care when providing professional services.
It is
important to remember that the actual tasks performed by safety professionals
vary greatly. It may include education, rehabilitation, the provision of risk
assessments etc. The degree of potential liability will vary, depending on the
professional’s role. The task of risk assessment and advice is certainly one of
the activities that would incur the highest exposure to liability.
Types of Legal Liability
Professional liability potential for the health
and safety professional may be divided into three basic categories.
First, there is civil tortious liability for
damages suffered by an individual or corporation that has relied upon the
advice, representation or actions of the health and safety professional. A
safety professional (who is not on the staff of the business) may be held
liable if their advice, representations, or actions are held by a court to fall
below a reasonable and acceptable standard of care.
Secondly, as the consultant’s relationship with
the business rests on contract, liability for breach of contract may arise if a
term of the contract relating to the provision of services is breached. In the
case of professionals, the relevant term is generally an implied promise to
take reasonable care in the provision of the advice. Since contractual
liability in the case of professional services closely mirrors tortious
liability, the two can be discussed together.
Thirdly, there is quasi-criminal liability which covers
personal liability for the contravention of a health and safety statute or
regulation.
Contractual
or Tortious Liability: Negligence
An independent health and safety professional
could incur civil liability for a workplace injury that results from advice
which they have given. In the civil law of tort, a duty of care falls on anyone
who is placed in a position where he can as a reasonable individual, forsee
that his actions may cause harm to others.
For a safety professional to be liable for
negligence, the court must find all of the following:
-
that the safety professional owed the plaintiff
(the injured person) a duty of care; -
that the safety professional breached the
standard of care required by that duty in the circumstances. The standard of
care expected of a person is higher when the person holds themselves out as
having a particular skill; -
that this breach was a cause of the damage, and
that the damage was not too remotely connected to the breach.
This means that a safety professional will owe a
duty of care to a plaintiff if it is reasonably foreseeable that the professional’s
act could cause some harm, and the plaintiff is a person in a group which would
be reasonably foreseeable to suffer from that harm. The harm doesn’t have to be
forseen – it only has to be harm that a reasonable person would have forseen.
As a safety professional is in the position of
representing himself or herself to have expertise in the area of health and
safety, the expectations placed on the professional as to what is reasonably
foreseeable will be higher than in the case of an ordinary person.
Civil liability might also arise where the
employer relies on the advice of a safety professional regarding risk
assessment, and the employer (in relying on that advice) suffers a penalty for
breaching OHS legislation. It is conceivable that an employer could take action
against the safety professional for negligent advice, and claim damages to
recover the penalty from the professional.
Defences
There are two main defences that can apply:
contributory negligence and voluntary assumption of risk.
Contributory negligence refers to a situation
where the plaintiff has contributed to the harm suffered by failing to take
care of him or her self. If contributory negligence is made out, liability between
the plaintiff and the defendant may be apportioned.
The defence ‘voluntary assumption of risk’
requires the defendant to demonstrate
that the plaintiff knew the risks and accepted them. That is, that the
injured person understood the risks flowing from the negligence of the safety
professional, but agreed to it anyway. Given the expertise that the safety
professional brings to the job (relative to employees), it is difficult to
imagine a case where an employee had sufficient knowledge of the risks, such
that it can be said he or she voluntarily assumed them.
Likelihood
of Success
The case law indicates that this has not been a
fertile area of litigation. Having said that, it is an area where the role of
independent professional has vastly increased in recent times, and we can
expect the incidence of litigation to increase.
Further, as all business carries insurance and insurers seek to share
blame/liability to reduce their exposure, OH&S professionals should be
aware that they will become targets. The
more established the OH&S discipline – the more aggressively they obtain
media – the more likely they will be parties to litigation.
As indicated, civil liability rests on
demonstrating that the professional failed to observe a reasonable standard of
care. Courts are likely to determine reasonableness by considering the state of
knowledge in the relevant industry as the time.
For example, in 1960 in Brown v Rolls Royce ( case where the employee sued the employer in
negligence), the plaintiff contracted dermatitis through contact with machine
oil. The employer did not supply barrier cream, as medical opinion on its
usefulness was divided at the time, and the company’s medical officer advised
that it not be used, although most other employers provided it. The court found
there was no negligence by the employer as it could not be proven that barrier
cream was an effective precaution against dermatitis in this job. The court clearly
took into account the fact that there was no consensus on proper measures to be
taken.
Note: the OHS professional has duties to both
the employer and the employee. However, the primary duty is to the employee,
and it is not the job of the OHS professional to make economic decisions on
behalf of the company. Their task is to place information about likely risks
before management so the latter can make an informed decision. If the
professional finds evidence that there is a real risk of injury, it is his duty
to communicate it to employers, however much preventive measures may cost.
OH&S professionals do have duties to
employers, employees and other visitors on site surrounding the identification
of risk. The failure to identify risk,
when engaged to do so, or the wrongful prescription of a cure could lead to
OH&S practitioners being sued by a number of people.
Exemption
Clauses and Professional Indemnity Insurance
While there are no reported Australian cases
where a safety professional has been sued in negligence, it is really only a
matter of time. For that reason, safety professionals who regularly give advice
should consider the inclusion of a carefully worded exemption clause in their
service agreements to minimise liability.
Further, they should also consider professional
indemnity insurance, which will ordinarily cover civil liability. There is no need for “in-house/employed” safety advisors to have
professional indemnity cover as they will be covered by the principle of vicarious
liability. However, there is a good case for independent safety professionals
to have it. In this respect, I note that 2.4.4 of the Standards requires
Consultant Professional Members to have adequate insurance cover.
Finally, the best defense is to clarify
the scope of work and the discipline to not comment or work outside of the
scope. Unfortunately, it is often the
brief, gratuitous advice that proves fatal.
Think carefully before you speak.
Criminal Liability
Charges against safety professionals (staff or
non-staff) are rare under Australian health and safety legislation. Indeed, it
is a rare occurrence in most Western countries. Under the Victorian Occupational Health and Safety Act 2004, self-employed persons can be criminally
liable for risks arising from the conduct of their undertaking (section 24) but
it is a stretch that this could apply to safety consultants.
One of the few known cases of a safety
consultant being prosecuted over a workplace injury occurred in the UK in
2004. Christopher Hooper was an experienced consultant who prepared a risk
assessment of a woodworking machine. The assessment fell significantly short of
the standards required, particularly in its failure to identify the danger of
the machine snatching at pieces of wood. While Mr. Hooper had many years health
and safety experience, he was not familiar with wood working machinery. An employee
of Hooper’s client injured his hand whilst operating the machine. Hooper was prosecuted
under section 36 of the UK
Health and Safety at Work Act 1974. Section 36 (which has no equivalent in Victoria) covers a
situation where a person commits an offence (in this case the employer) due to
the fault of another person (in this case, Hooper). Where this occurs, the
‘other person’ may be charged with an offence. Hooper pleaded guilty and was
fined 3000 pounds.
Prosecution of employed safety officers is more
likely. In 2005 in Canada,
a staff safety manager was charged under state OHS legislation in relation to a
workplace fatality. The defendant (Richard Dearing), who managed the company’s
health and safety program at the time of the fatal accident, was not on-site at
the time of the accident. Somewhat unusually, the corporation (Zoom Developers)
was not charged. Dearing was convicted
after pleading guilty to one charge (he was originally charged with 6), and was
fined $1,000. The actual charge was
unrelated to the accident: he was charged with putting a safety program into
place without consultation with the Joint Health and Safety Committee in the
workplace. No concerns were raised respecting the quality of the safety program
he put into place, and it is hard to understand why the safety manager was
singed out for a prosecution in the circumstances. Canadian commentary suggests
that this is apparently part of a wider trend to prosecute safety managers in Canada.
A way to diminish the risk of criminal liability
is to ensure that the safety professional’s role is clearly demarcated.
Further, a safety professional could also seek an indemnification from a
business which would require the business to provide them with reasonable
support for OHS-related prosecution and other litigation.