Due diligence is a form of defence available to companies and management personnel during litigation to indicate that they made a "reasonable effort" to prevent the incident which gave rise to the suit. The due diligence defence has two main branches.
First, that the defendant demonstrate that it reasonably believed in a mistaken set of facts which, if proved, would render the prohibited act or omission innocent.
Second, the defendant must prove that it took reasonable steps to avoid the particular prohibited event. This second branch is most often used in defence arguments and can be substantiated through written procedures, adequate supervision, appropriate training and instruction, etc.
A formal Health and Safety Program with written work procedures developed to a minimum recognized standard are considered to be the first step in this type of defence. However, a written safety program by itself does not establish the defence. It is necessary to establish that all persons, specifically management have implemented and enforced the safety program.
Elements of due diligence
- Written policies, practices and procedures
- Monitoring to ensure effectiveness of policies and procedures
- Inspections and other means of hazard identification
- Communication of any hazard information to workforce
- Training and Instructional programs
- Accident reporting and investigation
- Documenting due diligence steps
- Auditing to ensure effectiveness of steps