I felt a bit rough over the weekend and told my wife that I was a bit concerned as to whether I was a man with swine flu. The rather unhelpful riposte from the Mrs was that I may well have got the words in the wrong order.
We have seen plenty of health scares over the years and it is difficult to know whether this is something transient – people are just being cautious – or something that will have a serious impact. Let’s hope it’s transient and that the fears of a return (in stronger form) in the autumn turn out to be an abundance of caution.
Attitude to risk
I heard a former health minister being interviewed on the radio about health scares. He said that the most difficult thing from the Government’s point of view was that there was rarely a clear and unanimous view within the scientific and medical professions. Ultimately it’s all about your attitude to risk.
Many of you will remember Ken Mattingly (from the film if not from the news). He was the man who didn’t go on Apollo 13 as they thought he might get rubella – he didn’t.
For those who have to make decisions the problem is that getting it right is not news. If you activate your contingency plan and the risk does not come to fruition people will say you were too cautious. If the risk happens and you didn’t take the precautions then you were not cautious enough.
Attitude to risk is very important in construction projects and the perception of risk is equally important – refer to my post on nuclear safety.
Whether a party may accept a particular contract term depends not just on company policy or legal advice but also on the likelihood of the underlying risk actually occurring and the harm it may cause. For example, in a maintenance contract it might actually be quite difficult to work out whether a fault is due to poor maintenance or whether it is “just a fault”. The parties’ attitude to defects liability in the contract will be influenced by this type of consideration.
Contingency planning
Turning back to swine flu, there is another dynamic in play. You can’t treat the health of your staff as “just another risk” for all sorts of obvious reasons.
Everyone should have a contingency plan for what they are going to do if normal business is interrupted by significant staff absences. Most people would say that the best time to write the plan is when nothing is on the immediate radar. However, every contingency is different and continuity plans are by their very nature somewhat generic. So, when there is an alert, look at the contingency plan afresh to see whether it would in fact be “fit for purpose” if the alert actually leads to a major problem.
Construction contracts
I have also been thinking about clauses in construction contracts and how they may work if:
- You entered into a contract before the current news stories about pandemic flu.
- You are about to enter into a contract, in the light of warnings that there may be a pandemic now or later this year.
More on those thoughts here soon…
