Reasonably – “using good judgment”
Practicable – “able to be done or put into action”
The eminent Billings Learned Hand, former Judge of the United States District Court for the Southern District of New York, expressed it best:
“Words are chameleons which reflect the colour of their environment.”
Words can have a dictionary meaning which make perfect sense…so it is of absolutely no surprise that the dictionary is only the starting point when it comes to the courts interpreting those words in law.
This is the first in a series of articles which take a closer look at a few of the key definitions in health and safety law and see what the courts have decided they actually mean.
“So far as is reasonably practicable,” is the extent to which you must ensure the health, safety and welfare of employees and non-employees affected by your business. We can agree then that these words are very important in deciding whether an organisation has met its duties under HASWA have been met.
Usually, important words such as these are defined by statute. Not here – “so far as is reasonably practicable” is not defined in the 1974 Health and Safety at Work Act, so in a huge shock, it has been subject to considerable judicial interpretation over the past 5 decades. It is worth noting that in the health and safety context, the term “reasonably practicable” is much older than the HASWA74.
The HSE’s take is this:
“An employer does not have to take measures to avoid or reduce the risk if they are technically impossible or if the time, trouble or cost of the measures would be grossly disproportionate to the risk.
What the law requires here is what good management and common sense would lead employers to do anyway: that is, to look at what the risks are and take sensible measures to tackle them.”
Good management and common sense. Sensible measures. This sounds quite straightforward – have the courts agreed?
Pre-HASWA, this is what the courts said in Edwards v. National Coal Board (1949) – a case which has underpinned the approach of judges since:
“Reasonably practicable is a narrower term than physically possible and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”
In R v Gateway Foodmarkets Ltd 1997, the Court of Appeal rejected an argument that if the directing mind of the company had taken all reasonable precautions then there was no breach of the duty in s.2; the offence could be committed even though the senior management took all reasonable precautions; so that the offence was made out when, on the facts, there was a failure at local store management level. This approach was followed in R v British Steel 1995 in a section 3 case. In R v Nelson Group in 1998, the Court of Appeal held that the question of what is reasonably practicable is a question of fact but an employer could still have done everything reasonably practicable when an employee who had been properly trained, monitored, supervised etc. had been careless or omitted to take a precaution identified in a risk assessment. What Nelson was clear on is that what is or is not reasonably practicable was a matter for a jury.
However… in 1999 section 21 of the Management of H&S at Work Regulations seemed to reverse the effect of this by removing a “defence” based on the act or default of an employee – then in R v HTM in 2006, the Court of Appeal held that reg. 21 was inapplicable to the duties in ss 2 and 3 of HASWA because in those sections the term “reasonably practicable” qualified the duty itself rather than operating as a defence.
In Baker v Quantum Clothing Ltd 2011, the Court held that what is “safe” is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, “so far as is reasonably practicable”, also allows such general knowledge and standards to be taken into account.
Clear as mud!? So, what do you have to do to show you have acted to reduce risk so far as is reasonably practicable?
The baseline requirement is to follow all legal requirements, and to apply existing best practice unless you can make out a clear argument for doing something different. Best practice includes HSE Approved Codes of Practice; British, European and international standards; and guidance issued by employer groups and industry bodies.
Regardless of the maths, you need to do more where the risk of harm is greater. The term “gross disproportion” in the NCB case rules out a simple cost-benefit analysis and the default is that you must take measures to reduce risk unless you can show that the cost of doing so is out of proportion with the benefit by a factor of two or more, depending on the risk and the people affected. A cost-benefit analysis may demonstrate why you have selected one control over another, but it will not be a defence against failing to control a hazard at all.
This 1949 NCB judgment says that only money, time, and trouble may be considered in the calculation of gross disproportion. But you can see that there is plenty of evidence in more recent case law that expectations on how an organisation assesses what is reasonably practicable are influenced by much more than this.
What may be considered reasonably practicable may well depend on what a court regards as “reasonably foreseeable”, a discussion for another day!