The Government explained the introduction of this principle in the following way:

Where the crime is one of negligence, corporate criminal liability should be based on the actions and moral fault of the corporation as a whole. It is appropriate to base corporate criminal liability on the aggregate fault of several employees and officers, each of whom may have contributed to the end result. For example, the basis of negligence may lie not only in the conduct of the employees, but also in managerial officers who reasonably ought to have known what was happening or who were not reasonably diligent in establishing or monitoring mechanisms for compliance with corporate policies.

This change would mean that, in a Westray situation, it would be possible to view the many decisions with respect to safety as a whole. Even if it might not be possible to show that any single person had acted in a criminally negligent manner, it would still be possible to obtain a conviction of the corporation on the basis that cumulatively there was criminal negligence. Similarly, the corporation could be criminally negligent if it allowed senior officials to insulate themselves so that instances of safety violations would not come to their attention.

However it is important to note that a company can not be convicted simply on the basis of the aggregation of the failures of a number of junior level employees. This is because in addition there is an additional test which must be fulfilled - which is that there must be a failure on the part of one of more senior officers.

New Legal Duty
The duty is imposed on a wide group of people - in effect anyone who has supervisory responsibilities for work - but is likely to have particular significance in relation to senior managers and directors upon whom the law in many jurisdictions traditionally imposes no duties.

The Government explained its reasons for imposing the duty in the following way:

The Criminal Code imposes various legal duties including the duty to provide the necessaries of life for one's child (s. 215) and to use reasonable care and skill when doing any act that may endanger the life of another (s. 216). Moreover, if a person undertakes to do an act, that person is under a duty to perform the act if failing to do so would endanger life (s. 217). Wanton or reckless disregard of a duty which leads to death or injury is grounds for a charge of criminal negligence causing death (s. 220) or criminal negligence causing bodily harm (s. 221). However, the Code makes no explicit provision regarding a duty of a person directing work to ensure safety for the workers carrying out the work or to take reasonable steps to ensure the safety of the public.

In the Government's view, everyone who employs others to perform work or has the power to direct how work should be done should be under a duty to take reasonable steps to ensure safety of the workers and the public. The Government proposes to enshrine that duty in a new section 217.1 of the Code. What is "reasonable" will vary with the nature of the work and the experience of the workers. The courts are well-equipped to consider the evidence and decide on the proven facts whether a person has shown reckless disregard of the duty that led to death or injury.

The imposition of the duty will make it easier to show that a director or senior officer of a company has failed to do something that he should have done. Without a legal duty to do something, it is not possible in law to prove that the failure to act constitutes neglect. This is even the case when a common sense explanation of a person's conduct might be that he has committed serious failures.

To read about the issue of Directors Duties in Britain, click here

The province of the Australian Capital Territory jurisdiction has also imposed a legal duty on senior officers of an employer. To read about this, click here.