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Outlining the case for a common law duty of care of business to exercise human rights due diligence
Author: Doug Cassel, Published on: 11 February 2018
"Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence," 21 April 2016
...In the light of international standards that are now widely accepted, this article makes a case for judicial recognition of a common law duty of care of business to exercise due diligence with regard to the potential human rights impacts of business activity. In the case of parent companies, this common law duty of care would include due diligence with respect to the human rights impacts of activities by all entities in an enterprise, including subsidiaries. Consistent with international standards obligating states to ensure effective remedies for business-related human rights violations, the duty would be enforceable in a tort action for negligence brought by victims whose injuries were of the kind reasonably foreseeable by the exercise of due diligence. A company would not be liable for breach of the duty of care if it proved that it reasonably exercised due diligence as set forth in the...Guiding Principles on Business and Human Rights... On the other hand, a company's failure to exercise due diligence...would create a rebuttable presumption of causation and hence liability... [A] company could then avoid liability...only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.
So far as [the] writer is aware, this duty of care has yet to be recognized definitively by any court. However, common law tort actions for damages, including judicial recognition of new duties of care in negligence cases, evolve with societal needs and expectations, in response to what common law courts view as just, equitable and reasonable in changing circumstances. The time is ripe for common law court to enforce the now widely recognized human rights responsibilities of business enterprises to exercise human rights due diligence... [refers to Hudbay Minerals and Shell]