Reasonable practicability

16/06/2015 — 6 Comments

SFAIRP

The current Workplace Health and Safety (WHS) legislation of Australia formalises the common law principle of reasonable practicability in regard to the elimination or minimisation of risks associated with industrial hazards. Having had the advantage of going through this with a couple of clients the above flowchart is my interpretation of what reasonable practicability looks like as a process, annotated with cross references to the legislation and guidance material. What’s most interesting is that the process is determinedly not about tolerance of risk but instead firmly focused on what can reasonably and practicably be done.

6 responses to Reasonable practicability

  1. 

    Surely the word used is “Practicable”

  2. 

    In the UK, the HSE’s interjection of the ALARP principle into the process was really designed as guidance to their own staff in how to interpret the legal requirement ‘So Far As Is Reasonably Practicable’. However, it did fundamentally change the interpretation as far as the law is concerned in the it created an environment akin to a never ending loop of reductive review. This iterative process means that organisations feel that they have to re-visit the same risk constantly and on an ongoing basis to consider the question “could we do more?”. The need for this questioning is reinforced by the application of Section 40 of the Health and Safety at Work etc., Act 1974 which states:

    40 Onus of proving limits of what is practicable etc.
    In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

    So. Basically your guilty…now prove your innocent. In almost all cases of hindsight, other things which could have been done ,will be found. The bar is set dizzingly high in relation to OSH in the UK on the basis of ALARP and Section 40.

    • 
      Matthew Squair 16/06/2015 at 7:20 pm

      Yes the strict liability provisions make you wince, but there are reasons for those. What it does do is highlight the downside to reasonably practicable as applied after the fact, it’s asymmetric with the benefit of hindsight. But on the other hand you can’t set aside the law so applying some other criteria is a recipe for disaster.

      There is also a difference between statute and common law in the burden of proof, e.g beyond a reasonable doubt versus on the balance of probabilities. And in Australia at least the path to a defense of due diligence is clearly articulated.

  3. 

    Matthew, So why on earth do you insist on using what is, effectively, a legally and grammatically incorrect word that is not actually used in the legislation you are discussing?

    • 
      Matthew Squair 18/06/2015 at 6:04 pm

      Slight dyslexia I’m afraid. And yes I do know that one has a narrower sense than the other, and that Lord Asquith used that term precisely to connote the concept of something being ‘doable’. But ask me to distinguish the two words on the page… There are other words I have trouble with as well, it just happens to be a bugger when it comes to discussions of SFAIRP or ALARP.

      Nice hat by the way.

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