The Legal Obligations of Safety Auditors

The Legal Obligations of Safety Auditors • Do safety auditors belong to any profession? • What is a profession?

Profession • 1 The nature of the work • 2 The moral aspect • 3 Collective organization • 4 Status

Profession • Du Parc L. J. said in Carr v. IRC [1944] 2 All ER 163 that: • “Ultimately one has to ask this question: would the ordinary man, the ordinary reasonable man … say now, in the time in which we live, of any particular occupation , that is properly described as a profession? Times have changed. There are professions today which nobody would have considered to be professions in times past….The profession of the chartered accountant has grown

Profession • up in comparatively recent times, and other trades, or vocations.. May in future years acquire the status of professions.”

Professional liability • 1. Professional persons should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. • In Greaves and Co. (Contractors) Ltd V. Baynham Meikle and Partners [1975] 1 W.L/R. 1095, Lord Denning M.R. stated:

Professional liability • “The law does not usually imply a warranty that he will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case.”

Success Rate • 1 a lawyer only loses 1 case out of 10; • 2. Only 1 out of 10 patients died under a doctor’s care; • 3. Only 1 bridge out of 10 built by an engineer collapsed. • Who is negligent?

Different expectations • 1. The expectations created by different professions or by different branches within the same profession vary. • 2. The reasonable expectation of consumers is bound to have some impact on the application of the general principle. • 3. The cases concerning individual professions have tended to develop along their own separate lines.

Contractual Liability • 1. In a contract between a safety auditor and its client, there is generally implied by law a term that the professional person will exercise reasonable skill and care. • 2. But a contract gives rise to a complex of rights and duties of which the duty to exercise reasonable care and skill is but one.

Tortious Liability • The tort of negligence is complete when three conditions are satisfied: • 1 the Defendant owes a duty of care to the claimant; • 2 the Defendant has acted in such a way as to break that duty of care; and

Tortious Liability • 3. The claimant has suffered relevant damage as a consequence of the breach

Duty of Care • “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then 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 act or omissions which are called in question.” • Donohue v Stevenson [1932] HC 562

Duty of Care • Three stage test: 1. Whether it was reasonably foreseeable that the Plaintiff would suffer the kind of damage which occurred; 2. Whether there was sufficient proximity between the parties;

Duty of Care 3.whether it was just and reasonable that the Defendant should owe a duty of care of the scope alleged.

Duty of Care • In Hedley Byrne & Co. Ltd V. Heller [1964] AC 465, the House of Lords recognized, in principle, that a person making a statement could owe a duty to the recipient (with whom he has no contract) to take reasonable care and that, in the event of breach, he could be liable for economic losses suffered by the recipient.

Duty of Care • The court emphasized “special relationship” between the Plaintiff and the Defendant. • The Defendant must have undertaken some responsibility to the Plaintiff. • A duty to take care in respect of words arises when the relationship between the parties is contractual, fiduciary or “equivalent to contract”.

Duty of Care • In Spring v. Guardian Assurance plc [1995] 2 AC 296, the court considered that the concept of “special skill” featured in Hedley Byrne included “special knowledge”. • Thus an employer giving a reference about a former employee had the requisite special skill.

Standard of Skill and Care • What is reasonable skill and care? • The requisite standard is that which, in the opinion of the court, members of the profession ought to achieve. • The professional person should be judge by reference to the standard and skill and care appropriate to his profession generally.

Standard of care • In other words, the standard can be defined as: • That degree of skill and care which is ordinarily exercised by reasonably competent members of the profession, who have he same rank and profess the same specialization as the Defendant.

Damages • The principal object of an award of damages is to put the claimant in the position he would have occupied if the breach of duty had not occurred, so far as money ca do this and subject to the rules as to remoteness and mitigation of damage.

The Legal Obligations of Safety Auditors