Safety professionals

LIABLE FOR THE CONSEQUENCES?

Every day, you make decisions that have a direct bearing on the health and safety of others. But what if something goes wrong? At what point could you be held personally responsible?

By Norman A. Keith

The issue of liability in Canada is a little discussed and poorly understood area of the law for health and safety managers or independent health and safety consultants. With varying mandates, both in-house and independent health and safety consultants must address a wide range of oh&s problems. In the midst of these challenges for both staff and consulting health and safety professionals is the looming prospect of personal liability.

Professional liability potential for the health and safety professional may be divided into two basic categories. First, there is civil liability, the personal liability for monetary damages suffered by an individual or corporation that has relied upon the advice, representation or actions of the health and safety professional. Second, there is quasi-criminal liability, the personal liability for the contravention of a health and safety statute or regulation. In both categories of personal liability, the health and safety professional may be alleged to have failed to perform his or her duties in a distinctly professional, competent and satisfactory manner.

In the case of civil liability, money is usually the issue at stake. In quasi-criminal liability, a provincial offenses record, a monetary fine and a even jail term may be the penalties. In both categories of liability, the reputation, credibility, employment and professional future of the health and safety person may be seriously at stake.

It is trite to say that unsatisfied citizens of all varieties are increasingly turning to the courts to seek redress for acts of negligence on the part of all types of professionals, potentially including health and safety professionals. But one need only look to the dramatic rise in medical malpractice cases to see the truth in this statement. In reviewing the law of negligence, or unintentional torts, it is now clear that health and safety professionals 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.

The law of negligence

The law of negligence may not apply to a staff health and safety professional if the person that suffers injury is an employee or the employer itself. Canadian workers' compensation legislation generally bars an employee who suffers a workplace injury or illness from suing a fellow employee or their own employer. However, the same legislation and related workers' compensation boards permit and even encourage third party liability law suits against negligent parties. That would include independent and non-staff health and safety professionals.

Negligence is an often used word with many meanings. At its most basic, negligence means carelessness. In the strictly legal meaning of the word, however, it generally involves five stages: duty of care, standard of care and breach, causation, remoteness and defenses.

For a defendant to be liable for negligence, the court must find all of the following:

* that the defendant health and safety professional owed the plaintiff a duty of care;

* that the defendant breached the standard of care required by that duty in the circumstances;

* that this breach was a cause of the damage;

* that the damage was not too remote from the cause to be remediable; and

* that damage recognized by law as compensable in fact occurred.

After these requirements have been satisfied, negligence will have been established, but the defendant will then have an opportunity to present any defenses which may be available.

If a health and safety professional owes someone a "duty of care," this means that the person must take care to not pose harm to the other person. Having this duty is essential for negligence liability to exist. As His Honour Judge Linden puts it: "If the law does not recognize any obligation to exercise caution, an actor is not responsible civilly for his carelessness. A man is entitled to be as negligent as he pleases toward the whole world if he owes no duty to them."

The famous "snail in the ginger beer bottle" decision of the British House of Lords established the analytical framework to be used to determine if the defendant owes the plaintiff a duty of care. The House of Lords was called upon to determine if the manufacturer of the ginger beer that had a decomposed snail in it was responsible for the illness of the woman who purchased and consumed the ginger beer. In M'Alister (or Donoghue) v. Stevenson, Lord Atkin said the following:

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be, ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question’."

Courts have interpreted this passage to mean that a defendant, such as a health and safety professional, will owe a duty of care to a plaintiff if it is reasonably foreseeable that the defendant'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. As a result, a defendant need not know the plaintiff personally to owe him or her a duty of care.

Moreover, it is not necessary to actually foresee that such harm could arise and that such a group could be harmed. It is only necessary for the court to be able to look objectively at the acts and parties in question and say that a reasonable person in the defendant's position would have foreseen or ought to have foreseen that his or her act could cause some harm, and that the plaintiff is a member of a group which could be foreseen to suffer from that harm.

The key words, as far as professional liability is concerned, are "ought to have foreseen". A health and safety professional, staff or consultant, is in the position of representing himself or herself to have knowledge, experience, expertise and judgement above the ordinary in matters of health and safety. That is what makes them health and safety professionals. But it carries with it a higher level of reasonable expectation as to what this health and safety professional ought to be able to foresee as the consequences of his or her actions or omissions.

The "Learned Hand" formula

However, being found to owe someone a duty of care does not alone result in negligence liability. Even when this hurdle is crossed, the plaintiff must still demonstrate what an appropriate standard of care was and that the defendant breached it. A person who owes someone a duty of care is obligated by law to take such steps to ensure that this care occurs as a reasonable person would have in the circumstances. In other words, the person must take a "reasonable amount of care."

A court determines what steps would have been reasonable in the circumstances by utilizing what is often referred to as the "Learned Hand" formula. This formula flows from the decision of U.S. Justice Learned Hand in U.S. v. Carroll Towing Co. Under it, a court will assess the severity of potential harm flowing from a failure to take certain steps and the probability of that harm occurring. The court will then weigh these factors against the costs of taking steps to avoid that harm: If the avoidance costs are greater than the probability and gravity of the harm, a defendant who did not take them will not have breached the standard of care. If the probability and gravity of the harm is greater than the avoidance costs, the defendant will be found to have breached the standard of care if he or she did not take those steps.

However, even if the defendant is found to have breached the standard of care required by law, he or she may not be found liable for negligence if that breach was not a cause in fact of the damage which occurred. A court determines this issue by using what has come to be called the sine qua non or "but for" test. This test was established by the English Court of Appeal in Cork v. Kirby Maclean Ltd., and described by Lord Denning:

"[C]ausation is, I think, a question of fact. If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage."

Therefore, if it can be said that the plaintiff's damage would not have occurred but for the defendant's act in breach of the standard of care, then that act is a cause in fact (not necessarily the only cause) of the damage. If the damage would have occurred just the same, whether the defendant acted or not, then the defendant's act is not a cause of the loss and the defendant will not be liable.

The seminal case in this area is the English Privy Council decision in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (Wagon Mound 1). The law previous to this decision was that a loss caused by a negligent act was not too remote if the loss was a "direct" consequence of the act. Wagon Mound 1 overruled this test and substituted one based on foreseeability. Viscount Simmonds held as follows:

"It is a departure from this sovereign principle if liability is made to depend solely on the damage being the "direct" or "natural" consequence of the precedent act. Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural", equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done ... Thus foreseeability becomes the effective test."

If a court can conclude that a reasonable person in the defendant's position (that is, a reasonable safety professional) would have foreseen that the class of damage which occurred was a possible consequence of his or her act, the act will not be too remote in law and will therefore result in a finding of liability.

Once the plaintiff has proven the above factors on a balance of probabilities (in other words, proven that it is more likely than not that they happened or exist), then negligence will be found. However, before liability is imposed by the court, a defendant will have the opportunity to mitigate his or liability by proving, again of the balance of probabilities, that a recognized defense against negligence exists. For the sake of argument, there are essentially two main negligence defenses: contributory negligence and voluntary assumption of risk.

Negligence defense

To use contributory negligence, the defendant would have to argue that the plaintiff breached the standard of care which he owed himself or herself, that this breach was a cause in fact of the harm that occurred, and that the breach was not too remote. Essentially, a contributory negligence argument involves the defendant applying the negligence analysis to the plaintiff's actions. Although a successful contributory negligence argument used to constitute a complete answer and defense to liability, now it would only lead to the amount of damage liability being apportioned between the plaintiff and defendant pursuant to section 3 of the Negligence Act:

"In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively."

A more difficult defense involves demonstrating that the plaintiff knew the risks and accepted them. When a health and safety professional relies upon voluntary assumption of risk as a defense, one is essentially saying that because the plaintiff was aware of the risks of the defendant's negligent act and agreed to it anyway, he or she should be denied recovery if harm actually occurs. This is a complete defense to a negligence claim, thus it has been narrowly applied by the courts. In Dube v. Labar Mr. Justice Estey of the Supreme Court of Canada held as follows:

"[Voluntary assumption of risk] will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part. The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such as the present, only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to. Common sense dictates that only rarely will a plaintiff genuinely consent to accept the risk of the defendant's negligence."

In the United States, there are a minority of jurisdictions that allow an injured employee to maintain an action against co-employees where they have supervisory or safety responsibilities. Most U.S. states, like Canadian provinces, prohibit a civil lawsuit by an injured employee against their employer. However, an emerging trend in the U. S. demonstrates some openness on the part of the courts to permit such lawsuits.

In Fireman's Fund American Insurance Co. v. Coleman, six employees who were severely burned when a highly flammable solvent-based glue ignited brought actions against four co-employees. The Supreme Court of Alabama held that the supervisory personnel who were responsible for safety inspections and OSHA compliance could be found liable. In Mullins v. Summers, it was held that the duty by the employer to provide an employee with a reasonably safe place to work could be delegated to or assumed by the plant superintendent and, if such delegation or assumption occurred, duty may also have been breached by superintendent. However in Rounds v. Standex Intern, it was held that maintenance of a safe workplace, including suitable machinery and tools, is a duty of the employer, and such duty is "nondelegable." Therefore, the employer could not escape liability for breach either by purporting to delegate the duty itself to another or by merely delegating performance of the duty.

Every health and safety practitioner, manager or consultant has a professional responsibility to the employer or client, as well as to the people who will or may be affected by his or her actions or omissions. For oh&s people, this responsibility is a grave one, since it involves the health, safety and even the lives of people who, directly or indirectly, place themselves in the care of the oh&s professional. That responsibility before the fact can quickly turn to liability after the fact when things go wrong. Prudence dictates that the responsible health and safety professional will take all measures required to ensure that the standard of care he or she exercises is consistently of the highest level.

Norman A. Keith, B.A., L.L.B is a lawyer specializing in occupational health and safety with the firm of Mathews, Dinsdale and Clark in Toronto, Ont.

Sidebar

The exposure of Canadian health and safety professionals to civil liability necessarily leads to a discussion of how to avoid such potential legal liability. Although the suggestions that follow are likely to reduce potential liability, it does not guarantee that a health and safety professional will not be sued or even potentially held liable in court. However, this proposed approach to problem solving for health and safety professionals will undoubtedly reduce such risks and also enhance a systematic methodology for health and safety professionals.

Step 1: Recognize the hazard or oh&s issue to be addressed. This should be recorded in a project assignment memorandum or letters of engagement for the health and safety professional.

Step 2: Analyze the hazard or oh&s issue to be addressed. If an unusual or sensitive methodology is used in the analysis of the hazard or oh&s issue, these methods should be explicitly identified throughout the process.

Step 3: Identify possible causes of the hazard or oh&s issue. Causation is always a difficult issue because it involves the application of accident or causation theory to the facts and circumstances that are known to the health and safety professional. Be specific with respect to the theory being used and the facts that are known or given.

Step 4: Determine possible solutions to the hazard or oh&s issue. This is where creativity, experience and professional training are often at a premium; however, do not overlook the obvious solutions in favour of the more exotic or subtle ones.

Step 5: Evaluate the possible solutions to the hazard or oh&s issue. This requires the application of standard or generally accepted health and safety procedures, standards and protocols; however, do not overlook the applicable health and safety legislation.

Step 6: Reach a decision on the specific solution to the hazard or oh&s issue. Coming to a conclusion will not be difficult or risky if the first five steps above have been carefully taken. The decision should be clear and concise, yet not dogmatic or without identification of its limitations.

Step 7: Stimulate action and implement the solutions to the hazard or oh&s issue. This may or may not be the responsibility of the health and safety professional. The health and safety professional must be very clear about the mandate to implement the solution to the hazard or oh&s issue before proceeding.

This seven step process will ensure that a thorough and professional identification, analysis and problem solving process is used by the health and safety professional. Further, if followed consistently, it will enhance the quality of the advice and action undertaken by the health and safety professional and also reduce potential civil liability.

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