Have you ever been asked… what is the difference between a legal duty being ‘absolute’ and ‘so far as is reasonably practicable’?
This question arises in the context of the Electricity at Work Regulations 1989 (EWR), which impose duties on employers, self-employed persons, and employees to take precautions against the risk of death or personal injury from electricity in work activities. Duties in some of the regulations of the EWR are subject to the qualifying term ‘reasonably practicable’. Where qualifying terms are absent, duties are said to be absolute.
If a requirement in a regulation is ‘absolute’, the requirement must be met regardless of the cost, time or effort incurred in doing so. For some of the regulations with absolute requirements, regulation 29 offers a defence where criminal (but not civil) proceedings have been brought against a person or persons considered to have failed in their duty. The defence puts the onus on the accused person(s) to demonstrate that ‘they took all reasonable steps and exercised all due diligence to avoid’ committing an offence. In effect, the persons are assumed guilty until proven innocent.
Where the term ‘so far as is reasonably practicable’ is used in a regulation, this allows a balance to be struck between, on one hand, the level of risk reduction considered acceptable and on the other hand, the cost, time and effort of reducing the risk to such an acceptable level. Remember that the risk associated with electricity is death – that is, the risk is very high, so the measures to be adopted are demanding. In order to apply reasonable practicability, it will be necessary for a risk assessment to be performed in accordance with the requirements of the Management of Health and Safety at Work Regulations 1999. It should be remembered that the risk assessment could be the subject of scrutiny in the event of an accident or incident. It is therefore important to keep a record of the risk assessment process, proportionate to the nature and severity of the risk being considered.
Where a person is charged with an offence relating a regulation where a duty of reasonable practicability applies, the prosecution would need to demonstrate that the defendant had ‘beyond reasonable doubt’ failed in their duty, whilst the defendant need only demonstrate that their duty had been met ‘on the balance of probabilities’. It should be noted, however, that a lack of finances to properly implement those safety measures deemed necessary to reduce the risk to a reasonable level would never be an acceptable defence. Where a charge is brought, it will be for a court of law to decide whether or not the defendant has met the duties imposed upon him or her. Although little guidance is available from the courts on what is meant by reducing a risk as low as is reasonably practicable, the Health and Safety Executive cite the following examples of comments made by the judge in the case of Edwards v National Coal Board (1949):
… in every case, it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost.
‘Reasonably practicable’ is a narrower term than ‘physically possible’ and implies that a computation must be made … 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 person on whom the obligation is imposed discharges the onus on him.
Further guidance on the duties imposed on persons by the EWR can be found in paragraphs 56 to 60 of the Memorandum of guidance on the Electricity at Work Regulations 1989 (HSR 25) which is downloadable free of charge from the HSE website.
This article is taken with permission from the Summer 2011 issue of the SwitchedOn newsletter – read it online via the ESC website(together with many other articles).