DUTY OF CARE – PROSECTRA ELEARNING
‘Negligence’ is an omission to do something, which a reasonable man would do, or an act which a prudent and reasonable man would not do. Negligence as a legal concept contains four elements: ‘duty of care’, ‘breach of duty’, ‘cause’ and ‘harm’. ‘Duty of Care’ of employees (especially in high risk circumstances) has footing in both common law and statutory law.
One of the essential factors in assessing Duty of Care is foreseeability, which is particularly relevant considering a high-risk environment. The level of risk a work environment contains is linked to the possibility of harm, such as injury or death. Hence, an employer has the duty of taking all necessary measures to prevent any likely harm. Any omission to perform this duty, would mean a non-fulfilment of duty of care. The above, is of course, subject to restrictions by contract, or the law of the land.
One may consider the Directive adopted by the European Union another example of a comprehensive set of directions clearly demarcating the duties of an employer:
“Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.”
Risk reduction is on the lips of everyone in humanitarian work. While organisations in general are improving in security management, training of staff is still under prioritized as the organizations consider that they cannot afford to train all their staff. A recent study by EISF showed that more than 70% valued security training highly, but 44% admitted that their organisation did not have enough resources for security training.
Prosectra eLearning covers addresses all common risks in high risk environments; from abductions to residential crime; and the risks commonly associated with living and travelling abroad. Hence, the provision of Prosectra eLearning to staff deployed internationally go as a long way to fulfil the information and training component referred to above.
Prosectra stands for Professional Security Training which is offered to all clients in line with their specific needs, especially through e-learning. The most common reason to utilize e-learning is the extreme cost effectiveness. There are no travel and accommodation costs, and no time away from the office. However, although cost is often the main reason, there are other good reasons why e-learning is a natural choice for many:
a) The users learn at their own pace. No one is forced to learn at a certain date and time. They simply learn when they feel most ready for it.
b) The learning is served in small portions. A person’s concentration span is limited, and e-learning allows the learner to remain focused the entire time.
c) Provides unlimited revision opportunities. Many will feel shy about raising their hand in workshops, as this will demonstrate to others that here is something they have not understood.
d) Provides global perspective. E-learning saves travel, paper, and exposure to threats.
e) Reinforces employers’ Duty of Care. By providing employees a range of security and safety courses and modules, the employers reinforce their commitment to their employees.
I. THE DARFUR CASE: A CASE STUDY IN THE DUTY OF CARE IN A HIGH-RISK SITUATION
The case of Flavia Wagner v. Samaritan’s Purse et al., is one that is a perfect example of increasing employer liability in high risk situations. The Case concerned kidnapping of a humanitarian worker in Sudan who was working for the said NGO. The case began to raise a large amount of traction and attention in the media and in corporate circles why?
There was no ruling on the case, as it was settled, and the dispute remained largely confidential. However, Wikileaks leaked the documents filed with the District Court for the Southern District of New York. These documents have been relied on for the case study.
i. Brief Facts
Ms. Wagner joined the NGO called Samaritan’s Purse sometime in August 2009 at a position in relief operations in South Darfur, Sudan. In the duration of this employment, as was stated in the complaint/summary of claims, “Tragically, as a result of a series of intentional, grossly reckless and negligent acts of misconduct committed by defendant Samaritan’s Purse, Ms. Wagner was kidnapped by Sudanese nationals on May 18, 2010.”
Allegedly, the plaintiff was sent to the Abu Ajura area on May 18, 2010, where Sudanese bandits abducted her along with another employee and a Sudanese national who was retained chauffeur and act as security for her and her colleagues.
After a short period, only Ms. Wagner remained in the captivity of her hostages, in the duration of which, she was subject to immense abuse (both physical and mental), including solitary confinement.
ii. Apparent lapses on the part of the NGO
The claims revealed several apparent lapses that had been committed by the NGO: intentional infliction of physical harm, negligent infliction of physical harm, intentional infliction of emotional distress, and negligent infliction of emotional distress. Interestingly, these lapses seem to tie into the various common principles and/or statutes mentioned earlier.
The following, summarises the position of the plaintiffs;
• There existed a duty of care on the part of employer to not intentionally cause harm to their employees, and to refrain from misconduct which was to their knowledge a certain cause for serious injury or death.
• The lack of training provided to Ms. Wagner, in addition to causing anxiety, increased suffering in the duration of captivity.
• Security personnel retained were inexperienced, and “wilfully disregarded credible evidence that indicated that sending Ms. Wagner and her colleagues into the area surrounding the village of Abu Ajura posed an unreasonable threat to their safety and well-being.”
• The lack of due care led to the retention of a driver who conspired with Ms. Wagner’s captors thereby ensuring a successful kidnapping attempt.