The defense of due diligence is a legal strategy where an individual or organization, facing a charge for failing to meet a legal requirement, can demonstrate they took every reasonable step to prevent that non-compliance. It essentially means proving that all reasonable precautions were exercised to avoid a breach of the law.
Understanding Due Diligence in Legal Contexts
In legal terms, particularly within Occupational Health and Safety (OHS), due diligence is a crucial defense. It allows a person or company to argue that even though a failure to comply with a legal requirement occurred, they are not culpable because they proactively did everything reasonable to prevent it. This requires proving a systemic and continuous effort to identify, assess, and control risks.
Key Elements of a Successful Due Diligence Defense
To successfully invoke the defense of due diligence, the accused must typically demonstrate that they:
- Identified Foreseeable Hazards: Actively sought out and recognized potential dangers or risks relevant to their operations.
- Assessed and Managed Risks: Evaluated the severity and likelihood of these hazards and implemented appropriate measures to eliminate or control them.
- Implemented Control Measures: Put in place practical safeguards, procedures, and systems to mitigate identified risks.
- Provided Information and Training: Ensured all relevant individuals (e.g., employees, contractors) were informed about hazards, risks, and control measures, and received adequate training.
- Supervised and Monitored: Maintained ongoing oversight to ensure that control measures were being followed and remained effective.
- Maintained Records: Kept detailed documentation of all steps taken, including risk assessments, training records, inspection reports, and incident investigations.
- Reviewed and Updated: Regularly reviewed their systems and procedures to ensure they remained effective and were updated as new information or risks emerged.
The core of this defense lies in proving that the person or organization did everything reasonable to avoid the non-compliance, even if an incident still occurred.
Why Due Diligence is Paramount in OHS
Due diligence is not merely a reactive defense; it encourages a proactive approach to safety and compliance. It compels employers and supervisors to anticipate potential hazards and implement preventative measures, fostering a culture of safety. For more information on OHS responsibilities, refer to resources like the Canadian Centre for Occupational Health and Safety (CCOHS).
A robust due diligence system helps:
- Minimize Workplace Incidents: By actively identifying and controlling risks, the likelihood of accidents and injuries decreases.
- Protect Against Legal Liability: Provides a strong defense in case of prosecution for OHS violations.
- Enhance Reputation: Demonstrates a commitment to worker safety and legal compliance.
- Improve Operational Efficiency: A safer workplace often leads to fewer disruptions and higher productivity.
Practical Steps for Demonstrating Due Diligence
Implementing due diligence effectively requires a systematic approach. Here are practical steps:
- Develop Comprehensive Policies and Procedures:
- Create written safety policies, safe work procedures, and emergency response plans.
- Ensure these documents are regularly reviewed and updated.
- Conduct Regular Risk Assessments:
- Systematically identify hazards in the workplace.
- Assess the risks associated with these hazards and determine appropriate control measures.
- Document the findings and implemented controls.
- Provide Thorough Training and Education:
- Train all employees on their specific job hazards, safe work procedures, and the use of personal protective equipment (PPE).
- Provide training on OHS laws and company policies.
- Keep records of all training provided.
- Implement and Maintain Control Measures:
- Ensure engineering controls (e.g., machine guarding), administrative controls (e.g., rotation of tasks), and PPE are in place and properly used.
- Regularly inspect equipment and machinery.
- Effective Supervision and Communication:
- Ensure supervisors are competent and actively monitor work activities to ensure compliance with safety procedures.
- Establish clear channels for workers to report hazards or concerns.
- Consult with workers on OHS matters.
- Investigate Incidents and Near Misses:
- Thoroughly investigate all incidents, accidents, and near misses to determine root causes.
- Implement corrective actions to prevent recurrence.
- Document all investigations and follow-up actions.
- Maintain Meticulous Records:
- Keep organized records of all safety activities, including risk assessments, inspections, training, incident reports, and corrective actions. These records are vital evidence in a due diligence defense.
Example of Due Diligence in OHS
Consider a manufacturing company with moving machinery.
| Aspect of Due Diligence | Practical Action |
|---|---|
| Hazard Identification | Conducted regular workplace inspections to identify pinch points on machinery. |
| Risk Assessment | Evaluated the risk of entanglement and determined it was high. |
| Control Measures | Installed machine guards, implemented lockout/tagout procedures. |
| Training | Trained all operators on safe machine operation, lockout/tagout, and emergency stops. |
| Supervision | Supervisors regularly observed operators to ensure compliance with safety procedures. |
| Monitoring/Review | Conducted monthly safety audits, reviewed incident reports, and updated procedures based on new equipment. |
| Documentation | Kept records of machine guard installations, training sessions, and audit findings. |
If an accident still occurred despite these efforts, the company could present these actions as evidence of due diligence.
Due Diligence vs. Negligence
It's important to distinguish due diligence from simple negligence. Negligence implies a failure to exercise the care that a reasonably prudent person would exercise in similar circumstances. Due diligence, on the other hand, is the active and demonstrable effort to anticipate and prevent harm, even beyond what might be considered minimal care. It’s about taking proactive, reasonable steps before an incident occurs, demonstrating a genuine commitment to compliance and safety.
