Duty of Care

Define and discuss the term ‘Duty of Care’. In your discussion contextualize via examples, the application of such a concept in the field of Public Health, Health and Safety Management and Environmental Health.

Within contemporary society, the concept of duty of care can be applied to a variety of industries, examples of these are; a doctor has a legal duty of care to his patient, a teacher to his pupil, as does a manufacturer to a consumer. Duty of care can be defined as a legal obligation, to exercise a level of care towards an individual, as is reasonably practicable in all the circumstances, to avoid injury to that individual or his property. In quintessence, duty of care ensures that quality, safety and high standards are paramount in delivery. With reference to the question, and for the purpose of this assignment, the writer will discuss the impact of ‘Duty of Care’ within the fields of Health and Safety Management, Public Health and Environmental Health.

Fundamentally there are two branches of law, criminal and civil. Civil law usually deals with disputes where one person has suffered loss or harm and brings a legal action against another person, this can be referred to as a tort or a civil wrong. The word tort is derived from the Latin word tortus, which means twisted, however, in the technical legal wording, tort means a legal wrong (negligence) for which the law provides a solution. Negligence can be defined as an act of carelessness and overall disregard for the safety or lives of others. Criminal law is concerned with offences against the law of the land rather than individuals, and it is usually the Crown that brings the action against the person. The legal precedent for establishing duty of care can be exemplified in the Donoghue v Stevenson case (1932), where the manufacturer (Stevenson) was held liable for the injuries sustained by Donoghue who consumed a bottle of ginger beer that contained the remains of a decomposed snail. Donoghue claimed for damages against Stevenson for personal injury. The underpinning theory of this case was; the manufacturer owed a duty of care to the consumer, to take care that there were no harmful substances in his product. To successfully pursue a claim in the tort of negligence, there are three elements which need to be fulfilled, these are; a legal duty of care, a breach of that duty and damage suffered as a result of that breach. Since the case, Donoghue v Stevenson the ‘neighbour principle’ was established. As defined by Lord Atkin; ‘You must take reasonable care to avoid acts or omissions which you could reasonably see would be likely to injure your neighbour.’ (Harpwood, V.) Within practice this suggests that as an Environmental Health Practioner they would be liable for allowing deliberate harm to society as a whole, equally, failing to highlight a potential hazard would be seen as negligence.

Health and Safety Management is at the pinnacle of all our working environments, primarily driven by the media. The Health and Safety at Work Act (HASWA) of 1974 states ‘It shall be the duty of every employer to ensure, as far as reasonably practicable, the health, safety and welfare of all of his employees whilst at work’ (Smith and Keenan). The following are some examples of the major duties and obligations an employer has to his employees; providing and maintaining safe premises, provide information, training and supervision, prepare and revise policy statements on the health and safety of employees. (Smith and Keenan) however, the latter does not apply to an employer with fewer than five employees. In addition, an employer must ensure that if the premises are open to others, and are not employed by him, that they are safe. An example of the former; Environmental Health News (EHN), stated that B&Q were fined £15,000 and ordered to pay £33,000 costs after several kitchen doors fell onto customers; B&Q failed to satisfy its duty of care to both employees and customers. EHN suggests that since 1996 B&Q have displayed a catalogue of events where the safety of employees and customers has been compromised, resulting in fines in excess of £650,000. In practice this type of breach is vicarious liability, which means the liability of one person for acts of another, for example in the case of B&Q, the employees where acting on behalf of the company, however, the individuals were not held responsible the employers were. Should companies such as B&Q be permitted to trade with such poor safety records? Or should the Government intervene and levy greater punishment?

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With the turn of the industrial revolution in the 1800’s no one was aware that ‘a wonder fibre’ called Asbestos would masquerade such a risk to both the environment and the nations health. Mined in Canada in the 1870’s, asbestos was a lucrative commodity which was easily processed, cheap and in abundance. Asbestos percolated into almost every sphere of our lives; insulating steam pipes, power stations, and electrical cables. Exposure to asbestos, in the work place has been recognised as a danger since 1955, (The National Macmillan Mesothelioma Resource Centre) however, there has also been several cases of risk extended to the home; in the 1940’s wives who washed their husband’s dusty overalls and children who assisted, are now being diagnosed, up to 60 years later with the asbestos linked mesothelioma. Clydeside, Scotland currently has one of the highest rates of asbestosis related diseases in Europe, it has been suggested that approximately 25,000 people who have lived and worked in Clydeside, and the surrounding areas, and have been exposed to asbestos, will have died by 2025. (Tweedale, G.) Unfortunately there is no known cure for this fatal disease; the one consolation is that asbestos only becomes a threat to health and the environment once it is disturbed. Today numerous buildings still have a substantial amount of asbestos; if it is managed correctly then it does not pose a threat to health or the environment. The duty of care in managing asbestos is contained in Regulation 4 of the Control of Asbestos Regulations 2006; this supersedes any previous regulation on asbestos. The regulations require the duty holder to take reasonable steps to find out if there are materials containing asbestos and if so, its amount, where it is and what condition it is in. The duty holder is required to make and keep up to date legal documentation highlighting the location, and assess the risks imposed to anyone exposed to the fibres. Information on the location of the asbestos has to be made available to anyone who is liable to work on or disturb the fibres. Whilst the majority of industry adheres to the 2006 Regulations, there are still companies who will take unnecessary risks, to both their employees and the environment. Breaches are usually motivated by financial considerations, asbestos has disappeared but its destructive path still lingers on.

Threats to Public Health are not new, the first Public Health Act of 1848, was passed in response to the findings of Edwin Chadwick (1803–1890). Chadwick’s work predominately involved the amelioration of sanitary conditions, housing and the supply of clean water. In the 21st Century and indubitably in the United Kingdom, poor sanitary conditions have improved infinitely since the 1800’s. Food Safety has become the forefront of the media’s agenda. Under the Food Safety Act of 1990; ‘It is an offence for anyone to sell, or intend to sell food that could damage your health.’(Sprenger, R.A.) This can be defined as; food that has been rendered injurious to health, or is unfit for human consumption, or that it is so contaminated that it would not be reasonable to expect it to be used for human consumption in that state. The Food Standards Agency (FSA) suggests that an estimated five million people across England and Wales suffer from food poisoning a year. Is this due to poor standards of hygiene and knowledge in establishments that prepare and serve food?

In July 2006, and still in progress, ‘Scores on the Doors’ was introduced into parts of England, this is attached to the Local Borough Council’s website, and involves a star rating for every food outlet within that borough. A star rating summary is issued, indicating the food safety conditions at the time of the inspection, five being excellent and one being poor. Albeit still in its infancy, scores on the doors is making the consumer more aware of potential food risks and hazards within the industry. Furthermore this is helping to raise the profile of environmental health, and it has been suggested, that in order to improve the standards of hygiene in establishments, perhaps these scores should become compulsory display notices. It maybe questioned, whether the standards of hygiene would actually improve or if food poisoning levels would decrease in the nationwide implementation of this system. An illustration of a breach of the 1999 Food Safety Act, and of a lack of duty of care to the consumer was highlighted in; The Stuart hotel in Derby (also in the scores on the doors scheme) were fined £12,000 for breaches of hygiene regulations during a hearing before magistrates in September 2007. The inspectors found unacceptable conditions in the kitchens, and food packets in the stores were well past their use by dates. Evidence was also given that there were poor standards of supervision and training of staff, emphasising that monetary driven issues take precedence over food safety.

It can be concluded that Health and Safety Management, Environmental Health and Public Health are all interlinked in numerous ways, and are a major concern for individuals and society as a whole. Conversely, to move the industry forward, employers ought not to be driven by economics and the desire to make financial gain from taking unnecessary risks and compromising the welfare of employees. Furthermore if the Government were to distribute the penalties received, into the implementation of better education and training within the field, perhaps overall this would reduce the amount of litigious cases arising within the industry.

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BSc (Hons) Health and Environment

Law and Government

Duty of Care - N0193371