With the Misra Case Trial Transcript being published and the recent error we have found in Horizon it has led me to have a look at the law surrounding duty of care.
Wiki states the following:
- Harm must be a “reasonably foreseeable” result of the defendant’s conduct;  
- A relationship of “proximity” must exist between the defendant and the claimant;
- It must be “fair, just and reasonable” to impose liability.
POL clearly has a duty of care to its subpostmasters. It does not need to be written in to the contract for that duty of care to be challenged in the courts, should someone consider POL to be negligent in their duty in this regard.
Harm – which can be economic harm – is of course reasonably foreseeable. We know for instance that errors in Horizon do arise from time to time – for instance the recent Lottery Quickpick mess – that gives rise to SPMR liability to POL. POL respond to their duty of care here by informing all branches that the error exists and that they will fix it. They advise branches that they will not incur any financial liability to POL as a result.
There is of course a relationship of proximity between POL and the SPMR and that cannot be argued.
And then it must be fair just and reasonable for a SPMR to seek redress from POL under their duty of care responsibilities.
So this leads us to unexplained losses. What exactly is POL’s duty of care with regard to these? Is it fair that POL do not accept any responsibility for these? Is it just that they should? Is it reasonable to expect that they should have some responsibility for identifying where these errors have occurred rather than placing the burden on the SPMR?
At the end of the month a SPMR balances his books and finds that he is £500 down. He reports his balance to POL and immediately becomes liable for that amount to POL regardless of how it was caused.
Is that fair? Does POL not have a duty to assist the SPMR in determining what has happened to the money? Is that not a reasonable thing for them to do? How can POL be certain that a computer error did not cause the losses? How can POL assist the SPMR to make sure it doesn’t happen again or help the SPMR track down the person who has ultimately gained from the SPMRs loss?
Lots of questions.
In the Misra case, and no doubt others, the Judge and the prosecution were very clear on this, it was the SPMRs responsibility to identify errors caused by the computer if they existed. I could and have said a lot about that being a wrong assertion, however, if it is the case that SPMRs are responsible for identifying computer errors and bringing them to the attention of POL for correction (after all it was presumably a SPMR who told them about the Lottery Quickpick example – God only knows how that slipped through testing) then failure to identify a computer error when it happened that later went on to affect hundreds of branches could lead to the ridiculous situation that a SPMR could be held liable (under duty of care) for NOT identifying it and reporting it to POL.
Now that’s what I call unreasonable and ludicrous to boot.
Both the current error I have discussed on this blog as well as the error several years ago in Calendar Square Falkirk which was mentioned in the Misra trial tell us that when intermittent computer errors occur, identified by the SPMR and notified to POL, POL do not communicate these to the rest of the network and wait many months before releasing a patch to fix the error. Now that is totally unreasonable.
In the current error that is waiting to be fixed in March next year, I know that Fujitsu have not identified the cause of the error. They should be aware of this but they are not. POL know that Fujitsu will ‘fix’ it in March and I presume they will fix other errors at the same time that SPMRs may not know about. So what happens between now and then? If a SPMR takes £24k out of the safe and hides it away somewhere and blames its absence on a computer fault what happens then?
What can POL do? The answer is absolutely nothing. Assuming the SPMR declares the actual cash balance so not to be guilty of false accounting then POL do not have a leg to stand on. They can’t go to court relying on the SPMR contract because all the SPMR needs to do is to show that POL are sitting on an error that they haven’t told him about and when the details of the error come out in court it will be shown that Fujitsu don’t even know what caused it to happen in the first place. SO they cannot imply the SPMR should have identified the fault when it happened because even Fujitsu couldn’t when they knew exactly where and when to look! Totally absurd.
What POL should have done is another matter. Right from the start of introducing an unreliable computer system into the workplace of the SPMR they needed to change the contract and the way they operated. They could no longer rely on the contract to pass all risks on to the SPMR. They had to incorporate protection for themselves in much the same way as they incorporate protection for themselves in the case of robbery.
There had to be some form of due care responsibilities allocated to the SPMR so that all losses could be investigated. These responsibilities could have included the use of CCTV covering all places where value stock was handled and transactions took place and the storing of the footage for a relevant time. Sounds familiar? That is exactly what POL does at its Cash Centres. Why there and not at branches? A good question I think.
There is more they could have done but that example alone is proof that in order for POL to escape the onus of fair, just and reasonable in the provision of duty of care, they had to change their ways when the computer system was introduced and they did not.