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Duty of care
August 13, 2008 By: Michael T. Heenan Pit & QuarryWhat would it be like in the United States if instead of making rules, the federal government held companies to a standard of care based on a “prudent-person” standard? This would require inquiry in every case as to what a prudent person, familiar with the mining industry and safety and health needs of miners, would do to guard against accidents, injuries and illnesses. In recent years, Australia has moved to a duty-of-care model to judge whether employers are, as far as practicable, providing workplaces in which employees are not exposed to hazards.
I was part of a discussion on this topic at the International Symposium on Mining Safety and Health in Salt Lake City. The question was posed whether the Australian model might provide useful guidance for future U.S. safety and health regulation. The symposium organizer and moderator was Davitt McAteer, former head of the Mine Safety and Health Administration (MSHA). Patrick McGinley, professor of law at West Virginia University, and Edward Clair, associate solicitor of labor for Mine Safety and Health, were also on the panel. There were no written papers. This article is a partial summary.
Australian model
Professor McGinley outlined the Australian model. One particularly notable point was that Australia imposes a duty on employees to take reasonable care for their own safety and health. In the United States, the concept of miners having responsibility under law is – except for smoking prohibitions – nonexistent. In fact, the employer is strictly liable for the negligence of employees. Interestingly, the Australian safety law also imposes liability on manufacturers who provide equipment to the industry.
What would a general duty of care encompass? According to McGinley’s analysis of the Australian system, it would include all of the following:
• Safe systems of work
• Safe facilities and substances.
• Provision of personal protection equipment.
• Instruction, information, training and supervision.
• Consultation and cooperation between employer and employees.
• Reporting of fatalities, occupational injuries and occupational illnesses.
Employee responsibilities would include:
• Helping employer carry out safety and health responsibilities.
• Following employer safety and health rules in good faith.
• Using personal protective equipment as required.
• Taking good care of protective equipment.
• Reporting workplace hazards.
General duty clause
Clair discussed in some detail that there is a general duty clause in the U.S. Occupational Safety and Health Act, but it is a catchall provision that is not to be cited in lieu of a specific standard, assuming there is a standard. There are always problems of fair notice when the government tries to hold an employer responsible for something that was not specifically mandated or prohibited.
Here are some things I wanted people to think about:
• Specific standards set out in duly promulgated regulations are a tried-and-true approach. They answer specific needs and they provide necessary notice. (How much better it is to require motorists on public roads to stop at red lights and give way at yield signs as opposed to something general like they “be careful at intersections.”)
• Regulations are not promulgated by government fiat. Proposed regulations must be published ahead of time and the public must be given an opportunity to comment. In this way, the regulated community is able to contribute to the rulemaking process, which in turn helps rules be made clear and sensible and helps avoid ill-advised rules. A general-duty approach sidesteps this important process.
• MSHA regulations in many instances already impose general duties. For example, every regulation that mandates inspections or examinations imposes a general duty to find and eliminate hazards of any type whether or not they are the subjects of a specific regulation. Task-training requirements impose a general duty to train “safe work procedures,” without further specifics being provided. Other regulations have general requirements such as to maintain ground “stability” and to provide “safe access” to working places.
• Moreover, apart from MSHA requirements, employers are potentially subject to civil liability if they fail in their general duty not to be negligent. Any third party, such as a contractor, may sue a mine operator for injuries sustained on mine property. In some states, employees can sue as well. In other states, an injured employee can obtain a workers’ compensation recovery that is significantly greater if the employee can show gross negligence on the part of the employer. Suppliers of equipment can be liable as well, on a products liability theory, if someone is injured using equipment that was not designed and manufactured to be sufficiently safe.
• Finally, state laws can impose liability for criminal negligence and the Federal Mine Safety Act provides for prosecution of individual managers and supervisors of corporations if they allow a safety violation to go uncorrected.
Thus, without a single change, existing U.S. laws impose substantial general duties and create significant liabilities for failure of anyone in charge of workplaces to act prudently in making such workplaces safe.
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