Legal Issues in Occupational Ergonomics - Fundamentals and Assessment Tools for Occupational Ergonomics - page 32

3.1.2 Human Fault
In essence, the legal system is based on concepts of human fault. Without human wrongdoing, there is
no need or logical reason for punishment or legal redress. For example, the concept of negligence relates
to the failure to exercise due care (reasonable or ordinary care), which persons of ordinary prudence
would use to avoid injury or damage. The behavioral standard is only that of conformance with ordinary
everyday care and that is not a very high standard of conduct. For example, strict liability requires a defect
and a remedy that was technically and economically feasible. The defect may be defined as excessive pre-
ventable risks, failure to meet reasonable consumer expectations, or some other term or phrase that con-
notes fault or wrongdoing. Only reasonable efforts to eliminate defects or unsafe conditions are generally
required. The term foreseeability simply means that the harm was predictable at the time of the design,
construction, or sale of the product, component, or system. In other words, the law is not unreasonable
in its requirements. However the legal terminology is defined, it is intended to balance the interests of all
parties. The jury criterion is what conduct is reasonable under the circumstances, unless a statute defines
it specifically (such as a posted speed limit on a roadway).
3.1.3 Liability Prevention
Liability prevention or mitigation is the avoidance of fault by investigation, analysis, evaluation, risk
assessment, corrective action, and preventive remedies. The objective for the human factors specialist
is to reduce human error or human performance variance to that which is acceptable, tolerable, or
within prescribed levels. Rather than gross speculative estimates of variance, an objective detailed
approach is desirable. To identify or determine excessive uncontrolled human performance deficiencies,
there must be an understanding of the process at all stages. In terms of human error, what are the
measurements, what are the critical parameters, and what are the tolerable limits? Is the system robust
and relatively free from unanticipated variance? The foundational question is whether or not there is
a formal implemented program to reduce relevant human performance variance in design, manufacture,
logistics, and actual customer applications and use.
3.1.4 (Your) Involvement with the Law
It is highly probable that many scientists and most engineers, during their lifetime, will have direct or
indirect personal involvement with the legal system. It is wise to accumulate some knowledge and
become somewhat familiar about this seemingly foreign discipline, sphere of activity, or prospective
area of entanglement. Any sudden introduction to the legal process may be a disconcerting, anxiety pro-
voking, error producing, and frustrating experience. The contacts with the law may be varied. A univer-
sity professor may want to be an expert witness and to teach the jury about his specialty and its
applications to a defined fact situation. The research specialist may be asked to explain his findings as
either an expert witness or as a consultant to a law firm. An engineer may be asked by his company's
Legal Department to assist in furnishing information for the completion of interrogatories (written ques-
tions), the production of records, to arrange possible inspections of the accident site or product, and help
in the technical instruction of the lawyers and their expert witnesses. The engineer may be asked to review
related accident or incident records, warranty claims, adjustment data, test reports, quality inspection
data, and possibly help to develop or revise a liability prevention program. The engineer may be
asked to perform or work with others on special research or test projects related to ongoing litigation.
There are a myriad of roles that can be played in state or federal common law actions, worker's compen-
sation cases, allegations of statutory violations, arbitrations or mediations, government agency hearings,
or citations involving OSHA, NHTSA, EPA, CPSC, DOT, and FTC or other legal assessment, conflict,
or dispute resolution entities (Vinal, 1999). Finally, the scientist or engineer may be the subject of a
lawsuit or be subpoenaed as an eye witness to an investigated or litigated event. Thus, early preparation
would seem desirable rather than to wait for a deluge of litigation-related information, quick forced
learning, and accommodation to the unfamiliar.