The Legal Obligations of
Safety Auditors
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Do safety auditors belong to any
profession?
What is a profession?
Profession
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1 The nature of the work
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2 The moral aspect
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3 Collective organization
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4 Status
Profession
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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
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up in comparatively recent times, and
other trades, or vocations.. May in
future years acquire the status of
professions.”
Professional liability
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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
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“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
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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
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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
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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
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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
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3. The claimant has suffered relevant
damage as a consequence of the
breach
Duty of Care
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“ 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;
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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
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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
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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
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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
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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
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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
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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.