Health and safety: what is 'reasonably practicable'?
The legal term ‘reasonably practicable’ plays a crucial role in determining the level of care and precautions required in different areas of law, such as workplace safety, accessibility, environmental protection and product liability. This article explores the meaning of ‘reasonably practicable,’ its application in various jurisdictions and notable case law that has shaped its interpretation.
Defining ‘reasonably practicable’
‘Reasonably practicable’, refers to the level of care, precautions, or actions that are expected or required in a particular situation to ensure safety, comply with regulations or mitigate risks. It recognises that complete elimination of all risks may not be feasible, but the law mandates taking reasonable steps to minimise them. The specific interpretation of ‘reasonably practicable’ varies across jurisdictions and legal frameworks, but it generally considers factors such as risk severity, available knowledge, feasibility, proportionality and applicable standards.
The HSE advises that ‘reasonably practicable’ may be referred to as SFAIRP ("so far as is reasonably practicable") or ALARP ("as low as reasonably practicable"). SFAIRP is the term most often used in the Health and Safety at Work etc Act and in Regulations. ALARP is the term used by risk specialists, and duty-holders are more likely to know it. In HSE's view, the two terms are interchangeable except if you are drafting formal legal documents when you must use the correct legal phrase.
In essence, ALARP is about weighing the risk against the sacrifice needed to further reduce it. The decision is weighted in favour of health and safety because the presumption is that the duty-holder should implement the risk reduction measure. To avoid having to make this sacrifice, the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices. Extreme examples might be:
- To spend £1m to prevent five staff suffering bruised knees is obviously grossly disproportionate; but
- To spend £1m to prevent a major explosion capable of killing 150 people is obviously proportionate.
Of course, the HSE says, in reality many decisions about risk and the controls that achieve ALARP are not so obvious. Factors come into play such as ongoing costs set against remote chances of one-off events, or daily expense and supervision time required to ensure that, for example, employees wear ear defenders set against a chance of developing hearing loss at some time in the future. It requires judement. There is no simple formula for computing what is ALARP.
Application in different legal contexts
The concept of ‘reasonably practicable’ finds application in various areas of law. In workplace safety, employers are obligated to take measures that are reasonably practicable to ensure the safety of their employees. This may involve providing protective equipment, implementing safety protocols and conducting adequate training.
Environmental regulations also require entities to manage risks and minimise harm. To comply with these regulations, organisations must undertake measures that are reasonably practicable to prevent pollution, implement waste management systems, and adhere to prescribed standards.
In product liability cases, manufacturers must demonstrate that they have taken reasonably practicable steps to ensure the safety of their products. This may include conducting product testing, following safety standards, and implementing quality control measures.
In employment, employers must make ‘reasonable adjustments’ to make sure workers with disabilities, or physical or mental health conditions, are not substantially disadvantaged when doing their jobs.
Reasonable adjustments include:
- Changing the recruitment process so a candidate can be considered for a job.
- Doing things another way, such as allowing someone with social anxiety disorder to have their own desk instead of hot-desking.
- Making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for a deaf person.
- Letting a disabled person work somewhere else, such as on the ground floor for a wheelchair user.
Significant case law
Case law has helped shape the interpretation of ‘reasonably practicable’ in different jurisdictions. Notable cases include Edwards v. National Coal Board, which established the ‘reasonably practicable’ test in the United Kingdom, emphasising factors such as the likelihood and severity of harm, the state of knowledge, and costs.
The definition set out by the Court of Appeal (in its judgment in Edwards v. National Coal Board, [1949]) is:
"'Reasonably practicable' is a narrower term than 'physically possible' … 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 Australia, Tutton v. Walter Dobrowolski Pty Ltd clarified that ‘reasonably practicable’ requires balancing risks against the time, effort, and cost required to mitigate them. The case highlighted the objective nature of the test, focusing on what a reasonable person would consider practicable.
In Canada, R. v. Sault Ste. Marie defined ‘reasonable care’ in environmental offences. The court held that defendants must exercise due diligence and take all reasonable precautions to avoid committing offences.
In New Zealand, Thomsen v. Holland elucidated the meaning of ‘reasonably practicable’ under health and safety laws. The court emphasised the objective nature of the test, considering what a reasonable person, with the defendant's knowledge and resources, would deem practicable.
Conclusion
‘Reasonably practicable’ is a vital legal concept used to assess the degree of care and precautions required in various areas of law. Its interpretation involves balancing risks, available knowledge, feasibility and proportionality. Notable case law has provided guidance on the application of this concept, emphasising the objective nature of the test and considering what a reasonable person would deem practicable. Understanding ‘reasonably practicable’ helps ensure the promotion of safety, environmental protection and responsible conduct in different sectors, contributing to the overall wellbeing of individuals and communities.
Further guidance from the HSE is available here.
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