Duty of care
This week I’m going to go all legal and talk about duty of care. These 3 words on which a significant amount of business in the security industry are based. The words are used over and over in operations records, assignment instructions and legal issues around the security industry but how much does the average security operative know about what these words mean. In this article I want to look at duty of care from a civil law perspective.
Definition of duty of care
In civil law a duty of care can be described as a legal obligation placed on an individual or a party. This duty is placed on the person or party to ensure that they keep a reasonable standard of care towards the other. A person’s duty of care however is not omnipotent in negligence and applies only to specific parties in specific circumstances.
The Neighbour principle
Based on a UK court ruling called O Donoghue v Stevenson in 1932 and subsequently reinforced in Irish court cases the Neighbour principal is the guiding concept on negligence and duty of care. As stated a duty of care is not owed to everybody it is only owed to those who are our ‘neighbour’.
Lord Atkin the judge in the case above defined the neighbour in his ruling as:
“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 in question.”
To simplify our neighbour is anybody who is affected by our acts or omissions or indeed anybody who we ought to have known may have been affected directly by them. So this can be our colleagues, customer and even trespassers (although the Occupiers Liability Act reduces liability in respect of this group).
To break it down further there are two criteria:
1. The proximity of the person either physically or in relationship
2. How foreseeable the loss, injury, damage caused was.
Standard of care
In the tort of negligence and when trying to assess if the duty of care standard was met courts will looks at a number of factors.
1. The foreseeability of the accident or incident. – How likely or probable the accident or incident was. Was it a random unforeseen incident or could it reasonably be assumed under the conditions that an accident would happen.
2. The severity of the threatened injury or harm. – How severe is the potential injury or harm. Was there a risk of death or merely minor injury? The more serious the potential risk the more liable for control the defendant will be.
3. The cost of eliminating the risk. This is where the size and resources of the business operation becomes a factor. There may be a case for doubling the staff at a venue to make them safer but does the business have the resource to enable this or can they implement other controls within their resource to improve safety. Does it make sense for a business to install a wheelchair lift if only 3 wheelchairs users per year visit the premises etc.
4. The social utility of the defendant’s conduct. For example an ambulance driver on route to an emergency would have a lower duty of care to bystanders than a regular road user.
5. Common practice: An act may be a breach even if it was common practice at the time. For example a security company who issues stab resistant vests however is aware that it is common practice for staff not to wear them in hot weather. They may still be liable despite having issued the equipment as expected.
What can be claimed for?
When a claim of negligence due to a breach of duty of care is successful the person claiming is entitled to claim damages. Those damages can only be equal to the amount of harm caused by the tort and cannot be punitive to the defendant. The idea is not to punish the defendant for doing wrong (that’s the role of criminal law) but rather to compensate the wronged party.
The person is entitled to claim damages for:
1. Any Physical injury or damage
2. Financial loss
3. Emotional or psychological damage.
The judge will take each area claimed for separately into account and award a sum of compensation.
Contributory negligence is a term introduced by Section 11 of the Civil Liability Act 1961. Basically what it means is that if a claimants own actions or omissions have contributed to their injury or loss then they have been contributorily negligent themselves. The judge will decide how much they contributed to their own misfortune and deduct that amount from the overall award.
Reasonable person test
The reasonable person test is used to assess the actions of the defendant and plaintiff in negligence cases. The reasonable person test is in effect fiction. There is no such person but the test subject is made up of an average person within the community in question for the purpose of assessing what his/her actions would be under the circumstances. In English Law the reasonable person test is sometimes referred to as the ‘ man on the Clapham Omnibus’ a fictional person meant to represent society and described as a reasonably educated, intelligent but nondescript person, against whom the defendant’s conduct can be measured.
The reasonable person test in the security industry would be applied using the average security operative and compared against the actions of the defendant. Did the defendant do what a reasonable person from his community is expected to do. The defendant need not meet industry best practice as long as they meet the reasonable person test.
The actions of most employees across all sectors including the security industry are protected by what is known as vicarious liability. The common law principle of vicarious liability essentially means that an employer is liable for the actions of their employees in connection with their work. The principle is enshrined in statute law in both the Equal Status Act 2000 (towards customers) and the Employment Equality Act (towards employees) in relation to discrimination.
For vicarious liability to exist their must be two criteria satisfied:
1. Is there a relationship of control: Is there a master and servant relationship between the person carrying out the action and the person responsible for the action. The classic relationship here is a contract of employment however there is also some case law here holding a company liable for the conduct of contractors in a limited way.
2. Was the conduct within the relationship of control: The action should either have been authorised by the employer or even not authorised by the employer but carried out in connection with their employment. So the employer must have control over the action being taken for example an arrest in retail in order to be liable for errors made. In another example an employer may not have authorised an action such as a person being removed from a licenced premises but it is an action which the door supervisor may reasonable be expected to undertake as part of their duty so there is vicarious liability here as well.
A frolic is an occasion where vicarious liability does not apply. A frolic occurs when the employees action is completely unconnected with and different to their employment. In this case even though there is an employment relationship the employer could not have foreseen that the employees action would take place and would not have authorised it.
An interesting and quite well known case form the UK is Daniels v Whetstone (1962). A steward/bouncer called Allender who worked at a dance hall, and was employed to keep order, assaulted a customer inside the hall in the mistaken belief that he had previously been himself assaulted by the customer. Allender was asked to return to his position, explicitly rejected his employer’s instructions to return to the hall. Outside the dance hall Allender, in a rage, made an unprovoked attack and injured the customer who was not intending to re-enter. In this case the employer was not liable to the injured patron. The first assault was held to be within the scope of the steward’s employment, but the second assault in which the injuries occurred was an act of private retaliation and outside the scope of the employment relationship. This case is still often referenced in legal cases involving the security industry despite it happening both in the UK and so long ago. The general principle still applies.
However in this more recent case linked here from Krystle Nightclub both the venue and the security company were held liable for the actions of the staff. This was for a number of reasons. Firstly because there was more than one security member involved and secondly because the patron was trying to re-enter meaning that the refusal of access was within the actions which could be expected of the security team at the time of the incident.
Duty of care is a big concept but it is also a sensible concept. Its basis in common law makes sense. In the security industry we lack a real understanding of what it means on the ground and in practice. I hope this article helps to clear that up a little. Negligence is a major risk for all businesses. How an organisation can entrust a security team to guard against this risk without knowing that they fully understand its meaning is only increasing this risk. Employees also who are entrusted with this duty of care often either aren’t aware of vicarious liability or the term frolic and put themselves and their employer at risk thorough this lack of understanding. As always don’t just believe what I say . Go do the research and find your own way.