“No Harm, No Foul”: Madness

“As they depend, not upon the agent, but upon fortune, they cannot be the proper foundation for any sentiment” — Adam Smith

We all believe that people should follow safety rules all the time. Not because there is a harmful outcome every time someone violates a safety rule or commits an unsafe act. Because usually there is not. It’s because we believe that following safety rules reduces the likelihood of a harmful outcome.

Most of us also believe in “no harm, no foul.” Which doesn’t make sense if we believe that following safety rules reduces the likelihood of a harmful outcome.

In Basketball and in the Law

The term, “No harm, no foul,” was coined in 1956 to describe an approach to officiating basketball. In essence, when a player breaks the rules but in a way that will have no impact on the outcome of the game, then the referee shouldn’t call a foul.

In civil law, a plaintiff that wants to prove negligence not only has to show that the defendant owed a duty of care and failed to meet the standard of care required, the plaintiff must show that they actually suffered an injury and that their injury resulted from the failure to meet duty of care.

In other words, “no harm, no foul.”

It’s a little different in criminal law. If someone runs a stoplight, they’ve broken the law and can be ticketed, whether or not they’ve caused a wreck. That’s because being in a wreck isn’t against the law, but running a stoplight is. Generally, though, attempting to commit a crime is treated less harshly than successfully committing a crime. An attempted murder gets a shorter sentence than a successful murder. An attempted robbery gets a shorter sentence than a successful robbery; in fact, attempted robberies are often not pursued at all by the criminal justice system.

Legal theorists call this difference between failed and successful attempts at a crime “outcome luck.”

Outcome Luck

Applying the principal of “no harm, no foul” then means that we shouldn’t care whether someone wears a hardhat unless something hits their head and we shouldn’t care whether someone wears safety glasses unless they lose an eye.

It also means that we shouldn’t care if an airline pilot is drunk unless he crashes his plane, that we shouldn’t care if a truckdriver is texting messages unless he plows into a minivan full of kids on their way to a soccer game, and that we shouldn’t care if a train engineer is going too fast unless the train derails as it goes around a curve, killing some and injuring dozens of others.

After all, “no harm, no foul.”

But of course, we do care. We care if an operator falls asleep at the control board, even if the plant doesn’t blow up. We care if a maintenance technician skips the lockout-tagout procedure in the rush to get a job done, even if there isn’t an uncontrolled exposure. And we care if a contractor lights up a cigarette behind the tank farm, even if they don’t set the plant ablaze, billowing thick black smoke that can be seen 20 miles away.

 Unsafe Acts vs. Harmful Outcomes

Harmful outcomes depend on luck. We don’t have any control over luck. Unsafe acts depend on undesirable behavior, and we have total control over behavior. If an act is unsafe and so prohibited, it is always unsafe and prohibited, whether or not it results in a harmful outcome. If disciplinary action and punishment are to be used to modify behavior, they have to be used consistently to modify the behavior, because it’s behavior we can change.

When disciplinary action and punishment only result from harmful outcomes, it is clear to everyone involved that the disciplinary action and punishment are for bad luck, which is not in anyone’s control, rather than undesirable behavior, which is. Punishment for bad luck will always feel unjust and unfair to those in similar circumstances, whether they’ve experienced the bad luck themselves.

But What If the Outcomes are Really Bad?

Trevor Kletz defined a “violation” as a human error that occurs when someone knows what they are expected to do and yet decides to do something else. Kletz posed a set of questions that should be pursued before drawing any conclusions and making any recommendations about how to respond to a violation, including, “Have similar violations been ignored or rewarded in the past?” Yes, rewarded. Unless they are lazy, malicious, or just plain evil, employees don’t violate safety rules because they want bad things to happen. Often, they want something positive, and if its positive for the company, then they may actually get rewarded for their violation.

But what if something really bad happens? A manager of a coastal refinery recently told me, “If we make a mistake and put oil on the beach, the public is not going to accept that someone is getting more training on hazard recognition. They are going to want see people lose their jobs. Maybe some jail time.”

Yes, we are a society that believes in human sacrifice.

The original scapegoat was a goat the Hebrew chief priest sent into the wilderness after symbolically laying the sins of the people upon it. When someone is punished based on the outcome, based on luck, people will stop sharing their insights about how to make the plant safer, for fear that what they say “can and will be held against them.” The facility won’t get the benefit of learning from the incident.

Let’s Leave the Madness Behind Us

When it comes to safety, it is unsafe acts—wrong behavior—not harmful outcomes that matter. The idea of “no harm, no foul” flies in the face of everything we know about modifying wrong behavior. And despite our feelings that outcomes matter, they don’t matter to making a facility safer. If an act is unsafe, we need to treat it the same, regardless of the outcome. Same disciplinary actions, same punishments. Otherwise, we are punishing bad luck, and that just doesn’t make sense. If we do something despite the fact that it doesn’t make sense, that’s just madness. March is behind us. Let’s leave the Madness behind as well.

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