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Posted By TomP
I'm struggling to understand something after a review of PUWER. The definition of 'practicable' when related to the hierarchy states:
(a) the provision of fixed guards enclosing very dangerous part or rotating stock-bar where and to the extent that it is practicable to do so, but where or to the extent that it is not, then
As far as I understand Practicable, it means if it is technically feasible then it must be done. Regardless of cost, inconvenience etc.
After a discussion with an inspector from the HSE he has advised that they require a fixed guard unless ‘practicable’ on a machine despite the fact that we need to access the machine to change tools every five minutes because they have determined we technically can have a fixed guard.
Anyone got a good definition of practicable? So I can defend our use of interlocked guards?
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Posted By Chris Jerman
In my view, you are spot on. Anywhere where 'practicable' would stop the job so to speak and an allowance is made to relax that strict duty, you now have reasonably practicable. Your definition is quite correct. What has to be accepted at time is that the legislators make errors at times.
I have to confess that I've never spotted that one myself.
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Posted By Robert K Lewis
TomP
Strictly the inspector is absolutely right. The term practicable with regard to guarding dangerous parts comes directly from the Factories Act. The case law (Lords) is absolutely clear as well - Even if it prevents the use of the machine the guard must cover all dangerous parts, thus there is no scope for relaxing guarding simply because you cannot use the machine as you would wish. Some inspectors argue that the risk assessment element of PUWER would allow you to depart from the standard of practicable to one of somewhere near reasonably practicable. There have been no decided cases on this yet as far as I know.
The hidden issue is that the standards for health and safety that exist cannot be reduced by fresh legislation, it may only remain the same or be improved. I rather suspect the courts will follow precedent unless the HSE are driving a prosecution and a new way of distinguishing on the facts is found.
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Posted By Chris Jerman
Summers V Frost 1957?. Original Factories Act (errm 1937?)stated all dangerous parts shall be securely fenced etc etc, but clearly un-unforceable where the hazard can be mitigated (not eliminated)to a point of tolerable balance - that's why we are all able to use abrasive wheels.(1970 regs as an opt out) You can fully guard one - but it's rendered useless. Reasonableness wins and we only part guard them. Now clearly if the inspector feels that there is clear and imminent danger at a level that is intolerable, then a prohibition could result. It's not as simple as guard it or lose it. It has to depend on the level of risk faced.
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Posted By Philip Beale
Rtaher than using a fixed guard can't an interlocked guard be used that will prevent the machine running when opened. but still quick to open and close.
Downside of fixed guard other than you have stated is that the guard can be removed never re-fitted and the machine will still operate. the first you will know the guard has been removed is from an accident.
Phil
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Posted By TomP
Thanks for everyone’s help.
Just clarified that I'm not losing my grip and that the phrasing in PUWER is probably misleading.
I thought there was a test of reasonableness in guarding machinery but when I looked back at the regs I was surprised to find the phrase 'practicable' and not 'reasonably practicable'.
For a while I felt like a complete numpty…..
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Posted By Robert K Lewis
Chris
Thanks for the memory jog on the case names. I think though that the courts would have to follow the precedent set and require that the guarding followed the standard of practicable even if the machine was unusable. The current PUWER does not permit exemptions to be made, like the asbestos regulations, so the argument would have to revolve around the ability to risk assess. Remember that the law was set to protect people not enable employers to do work with dangerous parts exposed.
Reg 27(3) of CDM2007 contains the even more onerous absolute statement when it talks of "No timber or other materials with projecting nails or similar sharp object shall:
a) be used in any work or
b) be allowed to remain in any place
if the nail or similar sharp object may be a source of danger for any person.
Many duties use the term of reasonably practicable or practicable - this one however is a clear unambiguous - shall not be allowed to remain in any place.
I think though that many will argue that they have cleaning regimes 2 per day and therefore had done all that was necessary. Clearly any incident is a breach of the regulations.
Bob
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Posted By Chris Jerman
Hi Bob, sorry I'm not seeing where you're getting this from. PUWER places an absolute duty on the employer - true (by the way I wouldn't advocate employers operating unsafe kit either so we agree there) but the absolute duty is to exhaust all efforts to guard as far as is practicable - but then to assess and move on to other measures as long as the move can be justified - ie through the test of gross disproportion. If you have a machine that can be fully guarded and operated - it must be fully guarded, but if it can't it does not say that you can't use it. How would you use a chainsaw for example?
209 referring to 11 (1 and 2)shows that a, b, c and d are a hierarchy. ie suffixed by 'where or to the extent that it is not, then ....b, c ..
214 very clearly says that where contact is possible, an assessment must help to decide whether that is tolerable or not. So if it acknowledges this and allows tolerability to be proven, 11 . 1 is NOT an absolute duty to guard at all times. This is why we changed the wording back in 1970 from the 61 Act.
Can you expand a little - it's a very interesting point and worth debating some more.
C
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Posted By Robert K Lewis
Chris
Sorry for the typo - I meant abrasive wheels. The duty in the factories act was to ensure that dangerous parts are fully fenced. This is the standard set in case law - new legislation cannot lower the standard previously set except on a case by case basis where exemptions are permitted.
The PUWER wording is poor but I am waitingb for the copurts to discuss the new requirements to establish how the heirarchy and the duty to securely fence interface - It is a moot point and I concede arguments both ways.
Bob
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Posted By Chris Jerman
OK, I see - but if we're talking criminal law, the FA 61 has been repealed - that's the point it's not law anymore. The 6 pack wasn't an update to FA, it was a replacement under HSAW 74.
Civil law, ah well. We've King Alfred et al to thank for all of that.
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Posted By Adrian Watson
The Factories Act 1961, Sect 14, stated:
14. Other Machinery.- (1) Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be safe to every person employed or working on the premises as it would be securely fenced.
(2) In so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this section shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part.
The Provision and Use of Work Equipment Regulations 1998, Reg 11, states:
11. — (1) Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective—
(a)to prevent access to any dangerous part of machinery or to any rotating stock-bar; or
(b)to stop the movement of any dangerous part of machinery or rotating stock-bar before any part of a person enters a danger zone.
(2) The measures required by paragraph (1) shall consist of—
(a)the provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so, but where or to the extent that it is not, then
(b)the provision of other guards or protection devices where and to the extent that it is practicable to do so, but where or to the extent that it is not, then
(c)the provision of jigs, holders, push-sticks or similar protection appliances used in conjunction with the machinery where and to the extent that it is practicable to do so, but where or to the extent that it is not, then
(d)the provision of information, instruction, training and supervision.
The two requirements are obviously different, but with some cross-over e.g. "part of machinery." FA does not have regard to practicality, whilst PUWER does.
Lord Godard said in Lee v Nursery Furnishings Ltd [1945] 1 All ER 387:
"Practical" is defined in the Oxford Dictionary as "capable of being carried out in action" or "feasible".
And Hallet J said in Shwalb v H Fass & Son ltd (1946) 175 LT 345:
'Clearly, the fact that the use of the appliance would slow up production does not render their use impractical; and I have no right to substitute for the word "impracticable" expressions such as "difficult", "not too easy" or "inconvenient" or any other word.'
Regards Adrian
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