Saturday, November 10, 2012
Duty of Care
I'm currently writing a chapter on injury referencing the theories and concepts of injury science. Injury science is a relatively new science that studies injury and the causes of injury. It is also a science that has hitherto not been explicitly referred to within the literature associated with preparing a person to survive a violent encounter.
The following is one section of that chapter which deals with duty of care. Duty of care is a concept that is often referred to by lawyers and non-lawyers alike but which many non-lawyers have never actually studied. Lawyers only know it from a legal standpoint, not from a practical standpoint.
Duty of Care
The modern concept of duty of care was first defined by Lord Atkin in the famous landmark case of Donoghue v. Stevenson. This case was an appeal to the House of Lords England by Mrs Donoghue who became ill after drinking a bottle of ginger beer that was contaminated by a decomposing snail. She subsequently sued Stevenson, the manufacturer. Finding in favour of Mrs Donoghue, Lord Atkin said: 'The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; ... You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.'
How does a person or organisation discharge their duty of care? By taking reasonable care to avoid acts or omissions that would likely injure a person to whom a duty of care is owed and which are reasonably foreseeable. The Donoghue v Stevenson case focused on who the 'neighbour' is, who a duty of care is owed to, however, let's get back to core of the problem – injury and the cause of injury.
If you want to avoid injuring a person, surely it behoves you to first understand what causes an injury. Injury science not only provides the means to understand what causes an injury, it provides means and ways of understanding and identifying means and ways of preventing and controlling injury. In this way, the theories and concepts of injury science have a great deal to contribute to the discharging of a duty of care.
The Japan Judo Accident Victims Association (JJAVA) was established in response to 108 student (aged between 12 and 18) fatalities in Japanese junior and senior high schools from 1983 to 2009 as a result of judo accidents. Their mission is to 'support victims and find ways to reduce death and serious injury among students in Japan through introduction of effective safety measures as standard practice in the sport of judo.' The first thing that injury science would offer in support of the JJAVA mission is: injuries are not accidents.
Sommers explains that 'the term "accident" denotes an unforeseen, unexpected event that is the result of chance, fate or destiny. It is also used to describe human error or mistake, which thereby excludes the person from the consequence of injury' (emphasis added. If the above fatalities are the result of an accident, then by definition they are unforeseen and there is no breach of a duty of care. There would be no legal obligation for the instructors or school authorities to take reasonable care to avoid these injuries because they are unforeseen 'accidents.'
When arguing for the need to discontinue the use of the word 'accident' when referring to unintentional injury events, Langley refers to a survey of women whose children had been injured. The results showed that many of them had not taken any action to prevent a reoccurrence of the event resulting in injury. The findings suggested this was not because such events were perceived as being too difficult to control, or action was inappropriate, or that the event was useful education for the child. Rather, many mothers saw the incidents as something which by definition could not be prevented – an 'accident.'
'Accidents will happen' – this was a post on an internet forum by an internationally renowned (but unnamed here) martial arts authority discussing the JJAVA experience. What impetus is there to find ways to reduce death and serious injury among students if the fatalities and serious injuries are the result of accidents, and accidents will happen? By definition they are unpredictable and unpreventable.
Sommers suggests that a better understanding of the nature of injury in the past few years has led to a reconceptualisation of injury as a largely preventable event. The JJAVA mission of preventing future fatalities and serious injuries is supported by the injury science mantra that injuries are not accidents. The JJAVA mission would be further supported by reference to injury science theory. The duty of care espoused by Lord Atkin only refers to preventing injuries. Injury science goes beyond mere prevention. Injury science offers solutions to prevent and control injury should injury occur. Injury science offers solutions that limit the exposure to legal liability associated with a breach of duty of care. Injury science goes beyond the mere legal to our moral and ethical duty to prevent and control injury generally.
The above is a first draft. After reading it in this post, I am struck with the emphasis that duty of care is NOT just a legal duty. It is not something that is dealt with by purchasing insurance. It is a moral and ethical duty before it is a legal duty. It is not a risk that is transferred to a third party via insurance; it is a risk you address youself in order to discharge your moral and ethical duty of care. And how can you address your duty of care if you don't know what causes an injury?
Secondly, surely your public liability insurance premiums should be reduced if you can demonstrate your comprehensive efforts at discharging your duty of care. Much the way health insurance premiums should be reduced if you do not smoke. By definition, injury science offers the means and ways to address injury risk issues, which the insurance companies could adopt to reduce premiums for those who utilise these ways and means.
Thirdly, injury science's mantra, injuries are not accidents, makes a mokery of coroner's 'accidental death' rulings. There is no accidental death. One-punch deaths, which have been a subject of previous posts on this blogs, are not accidental deaths. The legal system defined them as so up until, in Western Australia, specific legislation assigned responsibility for one-punch deaths to the aggressor who initiated the process that led to the death. The legal system is slowly catching up with injury science.
Lastly, while locating an image to insert at the top of this post, I noticed that a number of martial arts organisations offer services to the public, particularly the corporate public, that are designed to assist in discharging their duty of care. Even the school I previously taught at offers these services. Given Lord Atkin's explanation of duty of care, surely it compromises the ability to assist in discharging a duty of care if one is unaware of the causes of injury. To put it another way, surely it enhances the ability to assist in discharging a duty of care if one is aware of the causes of injury.
My book will be the first in the literature associated with preparing a person to survive a violent encounter that will address this issue directly.