Hi can anyone give me some advice / links on the below question for my H&S Exam????

Article 5(1) Of directive 89/391/EEC provides that 'The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work'. In a recent challenge, the european commission argued that this was an absolute duty. DISCUSS whether the use of the so far as is reasonably practicable provision goes beyond the exclusions to article 5(1) That are listed in article 5(4) Which allows member states to provide for; 'the exclusion or the limitation of employers' Responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' Control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.'

Hi Healthy

You could do a lot worse than just tapping into google for an explanation, further  to the following post by Andrew Kurdziel, #2, of the ECJ/reasonably practicable case of 2007-recent? well, yes in the great legal scheme of things when 10 years is a mere microsecond.

You should then be able to put together an answer.

My personal view is that the ECJ, for which I normally have great confidence got this one completely wrong as I thought and still do that reasonably practicable is far too low a standard when there are alternatives like absolute duties, Strict liability and the practicable standard to choose from 

Some of the comments in Andrews post #2 I believe are wrong as there is in effect a system of following previous cases in France albeit not as structured as precedent in England/Wales. The judges are required to interpret the law strictly in favour of the accused and of course literally too-so if the words ambiguously mean such and such then thats what it should be as per Article 5.1.

Just consider in the last 10 years for instance the number of casualties which may have been significantlly lower if a tougher standard was in place ie absolute , strict liabilty or practicable [technically feasible]

The bill for the 10 years is say 15000 deaths from illness and disease annually x 10 =150000

Deaths on the roads due to work at say 1200 annually x 10 =12000

Actual deaths figuring in the annual stats of about  200 ish x 10 =2000 Total and this is just a really quick number at 164,000

Not every stat will necessarilly be related to sfarp but many will.

And what have we in the recent sentencing criteria but huge fines for the risk of harm rather than actual inury or death. Where no doubt application of sfarp would have led to the actual hazardous situation rather than a much better safer option under the alternatives which should be in the HSWA et al

I don't think it would be that difficult to introduce and when we talk of disproportionate costs, sacrifice etc [sfarp] we really mean that the workforce come second again to the needs of business. Edwards v NCB too.

It's very odd that earlier coal mine legislation was riddled throughout by practicable  no sfarp-why-Lots of mining MP's who knew what it meant and wouldn't have it

Regards

Mike