Among the questions posed in his call for evidence which ends on July 29, Professor Löfstedt asked: “To what extent does the concept of ‘reasonably practicable’ help manage the burden of health and safety regulation?”
“Reasonable practicability” as a concept causes much confusion, particularly when it comes to its practical application. However, it is a cornerstone of the UK’s approach to regulation of work-related risk, which has proportionality at its heart.
As is widely recognised, the principle was originally established in the now famous common law judgement of Edwards versus the National Coal Board in 1949. Lord Justice Asquith said at the time:
“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 in one scale and the sacrifice involved in the measures necessary for averting the risk (whether in time, trouble or money) is placed in the other and that, if it be shown that there is a great disproportion between them – the risk being insignificant in relation to the sacrifice – the person upon whom the obligation is imposed discharges the onus which is upon him.”
In other words, for things to be considered safe so far as is reasonably practicable you have to go on trying to make them safer until you reach a point where it is not worth doing more (a point of diminishing safety returns) – AND the risks which still remain must not be too great.
Making such safety judgements with confidence is often quite difficult. If the efficacy of safety measures is uncertain in reducing the likelihood of failure, particularly when the consequences of failure are serious, the result is more likely to be a precautionary “belt and braces” approach.
Critics say the concept of reasonable practicability allows too much flexibility and leads to weak or inadequate precautions being taken. Evidence suggests that, properly applied, reasonable practicability guarantees a high standard of safety. Investigations tend to confirm that few accidents occur where reasonably practicable safety measures have been taken.
The real importance of the concept is that it allows proportionality of response to risk, taking account of different variables. The alternative to this might be a rising scale of specific solutions laid down in law, but this would be cumbersome and might lead to both “under-hitting” and “over-hitting”. Reasonable practicability allows for fine tuning.
Making sound judgements about such risk/cost optimisation can pose real challenges for those firms lacking the necessary skills or access to professional expertise, particularly where options must be chosen from a range of solutions. For example, to take a case related to public safety, reasonably practicable water edge treatments to prevent drowning can vary from little or no action, to shelving and/or planting edges and erecting signage, through to extensive physical barriers at the extreme.
Factors such as population density and foreseeable behaviours can influence the scale of control measures. Those not in the know sometimes find it difficult to understand why maximum measures have been taken in one setting but not in another.
What is useful about reasonable practicability is that it provides a constant reminder to risk creators, risk takers and regulators that safety is not an absolute but always a matter of judgement. At RoSPA we try to express this simply by saying that things need to be as safe as necessary, not necessarily as safe as possible.
On the other hand the concept can give rise to conflicting responses. Firms tend to welcome the flexibility it provides; but when faced with lack of clarity they can then demand official advice about exactly what would constitute a minimal standard of compliance.
There is also confusion about costs. The affordability of specific measures does not relate to the financial circumstances of the individual duty holder. You cannot plead poverty and get away with a lower standard of safety but you can factor in opportunity costs, for example, the longer-term costs of restricting a particular activity or of unintended consequences such as risk transfer.
The fundamental ideas in our health and safety law about risk/cost optimisation originated in the philosophy and practice of radiological protection developed from the 1940s onwards. Here, the core doctrine was “justification, optimisation, risk limits”. In other words:
- If an exposure is tolerable, is it justified by sufficient benefits?
- Has exposure been optimised? (I.e. has a point of diminishing returns been reached in terms of further dose reduction?)
- Have upper bounds been set? (I.e. have suitable dose limits been established?)
This approach can be applied to all kinds of risk decision-making in health and safety.
In practice the workability of a reasonably practicable approach to safety depends on skill in undertaking suitable and sufficient risk assessments. Initially this means establishing if risks are trivial, moderate or high and, if they fall into the last two categories, deciding if control measures are adequate or if more needs to be done. Assessments also enable duty holders to prioritise risks for attention and they can be generic, specific and/or dynamic.
In many cases, those managing risk may carry out very little actual assessment. Much of what is called “risk assessment” is really little more than hazard identification and involves minimal exercise of judgement as to the probability or consequences of failure. If this simple approach enables standard but quite satisfactory solutions to be selected from the overall health and safety guidance lexicon then this does not necessarily matter, particularly if it leads to people adopting sufficiently safe systems of work. On the other hand, there is always a danger of “over-hitting” if the level of risk actually presented by the hazard is trivial and the standard solution selected is substantially more than is really required.
A simple approach to finding the right balance is what I have called “iterative triage” or “the Goldilocks Principle”. (In her search for beds and porridge Goldilocks found beds that were too hard or too soft, and porridge that was too cold or too hot – and this enabled her to find the ones that were “just right”.)
What all this demonstrates are two awkward truths:
- There is probably no practical regulatory alternative to a goal-setting approach supported by reasonable practicability, especially in the complex risk environment of our contemporary world of work
- If this approach is to be successful in practice, duty holders need to be suitably informed and competent or have access to suitably competent advice.
Those daunted by the challenges posed by this approach to work-related safety and health often demand regulatory simplification or a return to common sense. The reality is, though, that the risk profile of even apparently benign settings such as shops, office and schools can often be quite varied and complex; the devil is always in the detail and the right solutions are sometimes counter-intuitive.
An approach to regulating and managing risks based on what is reasonably practicable is undoubtedly a more mature approach than one based on prescription, but it only works in practice if the challenges are matched by necessary competence.
Getting health and safety judgements right is not always easy, but if they help to save lives, reduce injuries and safeguard health without wasting scarce resources, then the effort involved is surely worthwhile.
As ever, readers’ comments are invited below.
Roger Bibbings, RoSPA’s occupational safety adviser