The Corporate Manslaughter Bill 2010 recently passed its second reading at the National Assembly. When signed into law, the bill will penalise public and private organisations and arms of government whose activities cause the death of an individual.
The present position that a corporation can be held criminally liable for manslaughter is a departure from the previous approach, whereby corporations were held criminally liable only for acts of non-feasance under the common law (later extended to misfeasance). The movement away from the common law rule began with strict liability offences. In respect of these offences, intentionality was not required and the only practicable penalty was a fine, which a corporation could easily be forced to pay.
Today, the doctrine of corporate manslaughter is recognised in a number of jurisdictions and holds that a company is to be penalised for acts which result in the death of an individual. Penalties, which vary between jurisdictions, may include a fine, imprisonment of senior management and public censure. This is in addition to awards for civil claims and criminal prosecution of individuals (including employees or contractors).
Under the bill, any organisation whose activities are managed or organised in such a way that they result in the death of a person, which is occasioned by gross breach of a relevant duty of care owed by the organisation to the deceased, is liable for the offence of corporate manslaughter.(1) A charge under the bill does not prevent a corporate body from being charged under other laws and health and safety regulations, such as the Factories Act 1987.(2) The Corporate Manslaughter Bill applies strictly to corporate bodies, as an individual may not therefore be found liable for aiding, abetting, counselling or procuring the offence of corporate manslaughter.(3) The bill covers 'killing' as defined under the Criminal Code Act.(4) It deals with instances not anticipated or provided under the Criminal Code Act and the Penal Code (Northern States) Act.(5)
Relevant duty of care
The bill sets out the "relevant duties of care" owed by organisations.(6) These include duties owed to its employees or other persons working for or providing services for the organisation (whether for consideration of not), duties owed as occupier of premises and duties which arise in connection with the conduct of commercial activities by organisations. The duty of care also applies to employees who are detained or transported by law enforcement agencies and those living in secure accommodation. Whether a duty of care is owed to a particular individual is a question of law and the judge is required to make the findings of fact necessary to decide it.(7)
An act of gross negligence or breach refers to conduct which falls far below that which could reasonably be expected of an organisation in the given circumstances.(8) On establishing the existence of a duty of care by an organisation, the court must consider whether the organisation failed to comply with any health and safety legislation relevant to the alleged breach and, if so, how serious that failure was and how grave a risk of death it created. The court may also consider the extent to which attitudes, policies, systems or accepted practices within the organisation were likely to have encouraged any such failure.
The bill does not define 'causation', although it does suggest that the prosecution will need to prove that the breach had a more than minimal contribution to the death.
Guilt under the bill may be established only where the manner in which an organisation's activities are managed or organised by its senior management is a significant factor in the breach of the relevant duty of care. 'Senior management' includes those who make decisions for or manage a substantial part of the organisation.(9)
The bill applies to all forms of business organisation, including partnerships. An action brought against a partnership must be brought in the partnership's name. It also applies to departments and other bodies of government, the police, the armed forces, trade unions and employers' associations.
The bill restricts common law principles which have the effect of preventing a duty of care from being owed by one person to another by reason of the fact that they are jointly engaged in unlawful conduct. The bill further overrules laws that prevent a duty of care from being owed to a person by reason of his or her acceptance of a risk of harm.
An organisation that is found guilty of corporate manslaughter is liable on conviction to a fine.(10)
All related offences under the bill may be prosecuted by the attorney general, or by the police or any private legal practitioner, with the consent of the attorney general.(11)
The bill covers death sustained in Nigeria and its territorial waters, on board Nigerian-controlled vessels/aircraft and anywhere that the Petroleum Act applies.(12)
Courts' powers and jurisdiction
The Federal High Court and state high courts have jurisdiction over cases of corporate manslaughter.(13) Before making a pronouncement, the courts have the discretion to make a remedial order on any matter that appears to have resulted from the relevant breach and been a cause of the death, or order an offender to make public statements and furnish the enforcement agencies with required information.(14)
The main criticism of the Corporate Manslaughter Bill is that payment of compensation to the deceased victim's family under the bill amounts to duplication, as this is already provided for where death results from injury to an employee under the Employees Compensation Act 2010. The scale of compensation payable under the Employee Compensation Act to a spouse, child or parent is a monthly payment of a percentage (depending on his or her age and number of dependants) of the deceased victim's wages.
Further, under the bill, the term 'senior management' is only vaguely defined, leaving unclear the question of who qualifies as such within an organisation.
The bill has also been criticised for its failure to impose secondary liability on directors by holding individuals culpable. An action against an individual may be prosecuted only under other legislation or the criminal offences of manslaughter or gross negligence, which complicates the work of prosecutors and requires more time and money.
It has further been argued that:
- punitive fines against a company would result in a loss of value for the shareholders of the company and may not necessarily punish the culpable acts of management;
- civil damages may be a more appropriate means of compensation. In the case of civil damages, courts can award compensation which is commensurate with the damage inflicted and consequently apply the appropriate level of deterrence; and
- since only individuals can commit crimes, only individuals may be persuaded by the threat of a deterrent. A corporation, on the other hand, may simply be a veil for an individual's activities, easily liquidated and with no reputation to protect.
However, proponents of the doctrine advocate that it:
- further empowers enforcement and government agencies;
- promotes stronger procedural protection of corporations, such as proof beyond reasonable doubt;
- leaves a stigma, in the case of public censure; and
- symbolises societal values and sets standards.
The offence of corporate manslaughter depends on the proof of gross breach of a relevant duty of care. Therefore, proof of the following must be established to secure a conviction:
- The defendant is a qualifying organisation;
- The organisation caused the deceased's death;
- The organisation owed a relevant duty of care to the deceased;
- There was a gross breach of that duty; and
- A substantial element of that breach was manifest in the way that the defendant's activities were managed or organised by senior management.
The bill is designed to serve the public interest by ensuring that organisations exercise reasonable care in the way that they manage their activities in order to prevent loss of life. The impact that the bill may have on corporate behaviour and governance will depend on proper enforcement. However, management and compliance teams in various organisations will now be compelled to apply caution in undertaking operations and improve safety standards generally.
For further information on this topic please contact Yilji Dimka or Oluwole Dawodu at SPA Ajibade & Co by telephone (+234 1 472 9890) or email (email@example.com or firstname.lastname@example.org). The SPA Ajibade & Co website can be accessed at www.spaajibade.com.
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