The need for a general duty of care.

• Author: Hopkins, Andrew

1. THE ALARP REQUIREMENT A. The Meaning of ALARP B. The Value of ALARP II. GENERAL DUTIES IN THE UNITED STATES IN RELATION OF WORKER HEALTH AND SAFETY A. The General Duty Offshore III. CONCLUSION Professor Weaver has done us a great service with her two-part article on offshore safety in the wake of the Macondo disaster. (1) There has been enormous and quite bewildering change since 2010, both on the part of governments and on the part of industry. Weaver summarises and analyses this change in a comprehensive and readable way. She concludes that the offshore regulator still has a long way to go if it is to match best practice in other countries, and she makes a number of recommendations.

   Weaver draws on my book, Disastrous Decisions: The Human and Organisational Causes of the Gulf of Mexico Blowout. (2) One of my observations that she emphasises is that an effective regulatory regime cannot rely only on prescriptive rules, but must be based ultimately on a general duty of care. In this comment I want to make some additional clarifying remarks about general duties. What is perhaps not sufficiently clear in my initial discussion in the book, is that there are at least three radically different general duties that need to be distinguished in the present context:

   1. A duty to reduce risks to as low as reasonably practicable ("ALARP"), which can also be described as a duty of care.

   2. A duty to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm.

   3. A duty to provide a workplace free from recognised hazards.

   I deal with these in turn in what follows.

1. THE ALARP REQUIREMENT

   Most safety case regimes (3) are supported by legislation that imposes a general duty on the operator to reduce risks "as low a reasonably practicable," or words to that effect. (4) This amounts to a transfer of the common law duty of care into legislated requirement. In the UK the ultimate source of this obligation is to be found in the Health and Safety at Work Act of (1974) that states: "It shall be the duty of every employer to ensure, so far as reasonably practicable, the health, safety and welfare at work of all his employees." (5)

   For all practical purposes this is the same as saying that risks must be reduced to as low as reasonably practicable.

   1. The Meaning of ALARP

      The requirement to reduce risks "as low as reasonably practicable" is inherently vague. The leading legal interpretation is that it requires employees to adopt effective precautions, unless there is a "gross disproportion" between the cost of the precautions and the level of risk reduction achieved. (6) This is equally vague. In these circumstances courts often turn to current good industry practice to determine what is reasonably practicable. This means that what is reasonably practicable will vary from industry to industry, and over time, as industry standards improve. It is not a concept that can ever be given a fixed meaning.

      There is however a school of thought that regards this approach as unacceptably arbitrary and subjective and has sought to introduce a more rigorous cost-benefit analysis ("CBA"). This depends on quantifying the risks, calculating the benefit of some risk reduction measure, usually in terms of the number of lives saved and the value of each such life saved, and then comparing the benefit with the cost of the risk reduction measure. If the cost outweighs the benefit, (or in some interpretations, is grossly disproportionate to the benefit)...