Vicarious Liability: Hidden dangers and threats from poor or unqualified safety, security, risk and management advice and/or guideance

In the stampede to become consultants, advisors and 'experts', how many safety, security, risk and management consultants understand their liabilities and obligations under vicarious liability or other related laws and legislation?

How many buyers/consumers adequately understand this too?

In short, how dangerous is the advice and individual informing your safety, security, risk or management practices?

These dangers and risks are typically not covered under professional indemnity, errors or omission insurances either.

You can't insure your way out of not being qualified, educated or competent when you provide advice or guidance for things not within your realm or experience or expertise.

Pre-pandemic and throughout the past 18-months, many more 'experts', practitioners and 'professionals' have emerged to provide opinion on safety, security, risk and management issues.

Media and television appearances are not a proxy for qualifications, education nor valid credentials.... on ANY subject.

Nor is a published book.

In short, whatever random, subjective and selective process that resulted in the producers of a show, podcast or news segment requesting your views, is not a substitute for education, qualifications, legitimate experience and a verifiable information/knowledge base.

Are international and domestic enterprise security and risk managers aware of technical and legal changes affecting their "work" place, agreements, conditions and liabilities?

More specifically, relating to qualifications and credentials required "to do the job", competency of advice, risk or internal/external 'safety" or 'security' information which is acted upon?

Underlying knowledge upon which advice is provided, in addition to the accuracy and relevance in the event of harm, loss or death rapidly become the focus of investigation and content in the event of a negative outcome.

Specific competencies, qualifications and current practices of the individual come under scrutiny also.

In short, a well-meaning individual or someone with a random title or self appointed expertise manufactures risk for buyers/consumers of such advice often not realised until thing go wrong or something negative happens.

Legal Views

Clarification

"employer’s liability this can take the form of a failure, for example, to provide a safe working environment". In vicarious liability, the corporate person is strictly liable, but a personal tort must have been committed.", moreover "the concept of the non-delegable duty extends beyond employment; in that case it was applied to... duty to ensure a safe environment..." (Deakin, 2018)

Refinement: Hong Kong

"courts have recently expanded the scope of vicarious liability and the scope of the non-delegable duty, so that there is now a considerable overlap between the two." Concluding that " common law has been on the move in this area and I doubt whether it has yet to come to a stop." (Lord Phillips, 2015)

A Similar Shift: UK

"By linking liability to the risk attached to a business’ activities, the doctrine emphasises the importance of enterprise risk in the law of tort." (Tutin, 2016)

A Quorum?: Australia

"It also raises the question as to why the mere creation of a risk that materialises justifies the imposition of vicarious liability when liability in tort usually arises only for the materialisation of wrongly created risks." (Goudkamp and Plunkett, 2017)

If it is outrageous and unacceptable (illegal) for an unqualified medical practitioner to make life and death errors, practice without adequate education and training...why is is so accepted and tolerated that equally unqualified, inexperienced and trained safety, security, risk and management 'experts' make similarly dangerous and life or death errors without the accountability, regulation or protective assurances?

A mockery of professional standards, qualifications and accreditation are made every day in the name of safety, security, risk and management 'expertise' that is little more than anecdotal narratives and editorialised content of other authoritative sources claimed as personal work product. At scale, this remains the work product of more than just a few organisations and commercial providers selling said services.

Not Immediately Apparent

"It is not at all easy to discern any meaningful difference between the employment providing the occasion for the wrongdoing and the opportunity for it. "(Ryan, 2017)

Independent Contractors

"a recognition that vicarious liability may be imposed outside the class of traditional employment relationships in certain circumstances." (Silink and Ryan, 2018)

Practical Examples - Hypotheticals

1. A hotel chain litigates their security provider after being bombed by a terrorist, shortly after a security risk assessment stated a 'low' risk of terrorist attack, including bombings.
2. A security contractor walking female hospital staff to their cars at the end of shift at nights, despite not being expressly required in their service contract. Over time, the practice becomes normative, and assumed. Following a violent physical attack and death, the extended 'service' failing was contested, resulting in liability for the provider.
3. A government contractor is endorsed for a senior 'risk' roles within the government department, despite the individual lacking any verifiable or specific credentials, qualifications and experience in the area of risk. Resulting in risk policies, procedures, ratings, declarations, attestations and assurance provided by the contractor and their influence exposing the government and citizens to considerable litigation, loss and risk.
4. A security 'expert'/consultant conducts a risk assessment of a facility, business system and organisation, underestimating and understating considerable risk to people, product, process and information. In the event of a significant negative event and loss, the individual is litigated and found to be lacking any specific qualifications, acting accordance to an accepted body of knowledge or other peer/community practices.
5. A company requests their existing accounting and management consulting provider to conduct a 'security risk assessment' for them. The resulting product, regardless of individual, lacks the commensurate credentials, regulatory compliance and competencies required for the local and national entity. Any and all loss, harm or death associated to said assessment presents liability to the organisation, individuals and contracted provider, no matter the brand recognition.
6. A company engages a safety, security or risk 'expert'. Said expert has no formal qualifications, verifiable experience nor supporting, practicing body of knowledge. The courts and public opinion, after a significantly negative event, confirm the individual and work-product as invalid and not the output of a professional or expert. All for the sake of saving a few dollars.
7. An abundance in the market for safety, security and risk practitioners is a superficial veneer of non-academic institutions writing unverified credentials for individuals doing short-course subjects that are little more than anecdotal narratives of unqualified and inexperienced authors of varying interests, backgrounds and disciplines. Subsequent advice and work product are little more than editorial overviews of books, brochures and opinions appearing as expert findings.
8. An MBA from a business school or university remains a spatiotemporal contingent view of non-scientific finding/s and is not a proxy for empirical or scientific findings. Safety, security and risk management advice stemming from such qualifications, information and education is not commensurate with academic, scientific, professional or expert opinion, no matter how common this has become in recent times.

This content does not constitute legal advice or recommendations. See a lawyer if required.

Ironically, vicarious liability resulting from unqualified advice and work-product of individuals and organisations remains a rare consideration or analysed risk for most organisations, procurement departments or tenders.

Medical malpractice, standards of care, professional credentialing and knowledge rigours are commonplace within the medical profession yet remain largely excluded across safety, security, risk and management practices but is slowing becoming a requirement that will lead to mandatory inclusion. Quite frankly, it is long over due.

Tony Ridley, MSc CSyP MSyl M.ISRM

Security, Risk & Management Sciences

References:

Deakin, S. (2018). 'ORGANISATIONAL TORTS: VICARIOUS LIABILITY VERSUS NON-DELEGABLE DUTY'. The Cambridge Law Journal, 77(1), pp. 15-18.

Goudkamp. J, and Plunkett. J (2017) 'Vicarious liability in Australia: on the move?', Oxford University Commonwealth Law Journal, 17(1), pp. 162-170.

Lord Phillips. (2015). 'Vicarious liability on the move', Hong Kong Law Journal, 45(1), pp.29-44.

Ryan, D. (2017). 'FROM OPPORTUNITY TO OCCASION: VICARIOUS LIABILITY IN THE HIGH COURT OF AUSTRALIA', The Cambridge Law Journal, 76(1), pp.14-18.

Silink, A. and Ryan, D. (2018). 'VICARIOUS LIABILITY FOR INDEPENDENT CONTRACTORS.' The Cambridge Law Journal, 77(3), pp. 458-461.

Tutin, M. (2016) 'Vicarious liability: an ever expanding concept? (United Kingdom)', Industrial Law Journal, 45(4), pp. 556-564.