Duty of Care and its Impact on Employers

Duty of Care – Yesterday

In 1928, Ms. May Donaghue of Glasgow, Scotland drank what has become known in Western Law as ‘The snail in the bottle case’ and more succinctly it set the legal precedent for Duty of Care. The case states that Ms. Donaghue was given a bottle of ginger beer from a friend, and proceeded to consume the contents only to discover it contained the remains of a decomposed snail. The bottle was tinted dark, and she didn’t notice the foreign object until substantially through the bottle. She later fell ill and contracted gastroenteritis. Ms. Donaghue lodged a writ in the Scotland’s highest courts seeking £500 in damages against Mr. David Stevenson, the producer of the ginger beer.

Because she had not purchased the bottle herself, there was no breach of contract. However, her lawyers claimed Stevenson to be negligent of breaching a duty of care, an area largely untested in Western Law. In 1932, after a lengthy court battle, it was established that Mr. Stevenson to be responsible for the well-being of individuals who consume his products, given that they could not be inspected.

The outcomes of this precedent setting case were three-part.

Negligence 

A plaintiff can take civil action against a respondent if the respondent’s negligence causes the plaintiff injury or loss of property.

Duty of care 

Secondly, the case established that manufacturers have a duty of care to the end consumers or users of their products. According to Lord Atkin’s ratio decendi, “a manufacturer of products, which he sells… to reach the ultimate consumer in the form in which they left him… owes a duty to the consumer to take reasonable care”. This precedent has evolved and now forms the basis of laws that protect consumers from contaminated or faulty goods.

Neighbour principle

In Donoghue’s case she had not purchased the ginger beer but had received it as a gift; she was a ‘neighbour’ rather than a party to the contract. Atkin stated: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Duty of Care – Today

We’ve come along way since 1932, and the Duty of Care principle has evolved from ‘goods’ to ‘goods and services which could reasonably be foreseen to cause people harm’. It extends to all of us that provides an exchange of goods and services and extends not just to clients, but to employees. This means that under Canada’s Criminal Code employers must take reasonable steps to protect workers, whether they are in Canada or working abroad.

Across the pond a recent Galaxy Research survey in Australia had startling findings, including that:

• 93% of business leaders are comfortable they can properly manage their own company’s liabilities

• Only 30% of businesses actually had a plan of action directly addressing traveling employees

• Only 50% actively assess and manage employee risk on a regular basis

• 54% of employees said their employer does not provide information and communication specific to unexpected eventualities whilst traveling for business

A few steps can make all the difference to your Duty of Care

1. Ensure your organization has both the understanding and current technology to know the location of your employees while they are traveling on your behalf

2. Plan for an incident by developing a corporate policy on travel and a response plan in the event of an incident that includes a family support plan

3. Educate your employees about potential risks and challenges to personal safety and security before they leave

4. Be able to communicate with your employees at all times, and provide assistance during an emergency

The costs associated with meeting the duty of care principle include working with credible corporate travel service providers in developing a risk management plan, training your employees and providing necessary insurance.

The costs of not meeting the duty of care principle far outweigh today’s gamble, especially for a small to a mid-sized company where the impacts are far more profound.

If you are concerned about your Duty of Care as it relates to employee travel, please contact us today.