Q6 in the Lofstedt review asks: 'To what extent does the concept of ‘reasonably practicable’ help manage the burden of health and safety regulation?' I am not sure what purpose this question has with regards to the so-called 'burden of health and safety regulation'? I think most practitioners understand what 'reasonably practicable' means in a health and safety context, even if we disagree sometimes in its application. Perhaps it is a very good question. After all, we use the rubric quite often when discussing the extent to which risk should be managed, but does the phrase serve any real purpose I wonder? Furthermore, despite one’s best efforts in managing health and safety to the ‘reasonably practicable’ standard, ultimately it is for the courts to decide whether the ‘reasonably practicable’ test has been met or otherwise. Interested in your take on the Lofstedt question or just comments on the application of the 'reasonably practicable' concept. Ray

Regulation 11, PUWER

Ray, I don't think reasonably practicable helps "manage" the burden of legislation but I do think that it gives a leaway for judgement as against prescriptive legislation. Example I would rather be able to look at a work at height situation, discuss with the person doing the work etc and come to the conclusion that we can use a ladder if we put in control measures a,b,c, etc than from the start have to use a scaffold/mewp because the legislation says that "ladders cannot be used for task that will take more than 25 minutes in total or is above 5 metres" With reasonably practicable myself and others can use our competence to make a decision which balances health & safety, operational considerations, cost, customer requirement to gain a beneficial outcome without the process being dictated from the start by some bureaucrat. I will stop there before I rant at the latter

Dave, excellent points if I say so myself. I agree the HSE and the justice system have taken employer's liabilities to areas not previously envisaged 20-40 years ago. This has in effect emasculated SFAIRP standard to little more than a 'soundbite' from a legal perspective. R v HTM is an interesting case based of the reasonably foreseeable concept - a defence to s40. Interestingly, the Corporate Manslaughter Act does not make a reference to SFAIRP as far as I can recall, even though '8 Factors for jury' asks them to consider any breaches in h&s legislation or guidance.

It seems to me that the entire review will hinge on the response and evidence arising from Q7: "Are there any examples where health and safety regulations have led to unreasonable outcomes, or to inappropriate litigation and compensation?" If the answer here is no, then the obvious conclusion is surely to leave well alone? Presumably the UK cock-up in implementing the EU parent Directive via Control of Asbestos Regs will emerge in response to Q9. Full question set and document at: http://www.dwp.gov.uk/do...dt-call-for-evidence.pdf

In some circumstances "reasonably practicable" does not apply. "Every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled." - Control of substances hazardous to health regulations (COSHH) - Section 7(1) Note that reasonably practicable only applies to prevention and not to 'adequately controlled'. However, nowhere in COSHH is adequately controlled properly defined, at least not for skin exposure. So, in effect, we have a regulation that the employer is required to comply with, but where it does not state what he or she has to do! Chris

Chris, but then COSHH says, 7. (3) Where it is not reasonably practicable to prevent exposure to a substance hazardous to health, the employer shall comply with his duty of control under paragraph (1) by applying protection measures appropriate to the activity and consistent with the risk assessment and (c) where adequate control of exposure cannot be achieved by other means, the provision of suitable personal protective equipment later, (9) Personal protective equipment provided by an employer in accordance with this regulation shall be suitable for the purpose and shall – (a) comply with any provision in the Personal Protective Equipment Regulations 2002(a) which is applicable to that item of personal protective equipment; so doesn't all that go some way to explain adequate control of skin hazards? JohnW

JohnW wrote: "so doesn't all that go some way to explain adequate control of skin hazards?" Not for me! In our daily lives, including at work, we cannot avoid skin contact with chemicals. Many can be beneficial up to a certain level of exposure, and harmful beyond that. Take as an example water. We use it to wash off other harmful chemicals from the skin. We need a certain water content in the skin for it to perform properly. But excessive exposure to water, i.e. what is termed 'wet work', is one of the most common causes of occupational skin disease. At what level of exposure does water cease to be beneficial and become harmful? This can vary from situation to situation and from person to person. If I may quote a world renowned dermatologist (Prof. H. I. Maibach) speaking on contact dermatitis: "There is probably no such thing as a non-irritant substance. Given sufficient exposure any substance can become irritant to the skin." And from "Occupational skin diseases and dermal exposure in the European Union (EU-25): policy and practice overview, European Agency for Health and Safety at Work, 2008": “However, there is no scientific method of measuring the result of the body’s exposure to risks through dermal contact. Consequently no dermal exposure standards have been set.” As a member of the Dermal Exposure Network of the EU back in the 1990's we spent three years looking into this problem and concluded that development of exposure limits for skin was simply not possible as there were so many variables that could affect what was a safe level of exposure for a particular person. Furthermore, the most common form of occupational skin disease, irritant contact dermatitis, is both chronic and multifactorial, i.e. due to repeated exposures to many different chemicals over a period of time. So with someone whose work exposes them to several different chemicals during their working day, the individual exposures may not be the whole picture. The reality is that this is a far more complex aspect of risk assessment than most realise. Chris

The reason we rely on reasonably practicable is to do with the way that English courts interpret the law. Essentially English courts apply the law literally, the law is what it says; that if a regulation says “an employer shall prevent all injuries at work” then if any anybody is injury the employer is liable and that is an end to it. In Europe, where the legal tradition is based on Roman law, judges tend to take a “purposive approach” where they look at the context and aims of the legislation as much as the literal meaning. So they look at each case and decide how the law should be applied in that case. Furthermore in many European countries there is no case law- no precedent. This means that each case is looked at from scratch and again judges can make things up as they go along. It is therefore important that when duties are imposed the SFARP qualification is used in English law as we would end up either with a load of absolute specific duties or we would have to completely change our legal system to one based on purposive interpretation of laws.

JohnW Gloves, if selected and used within their performance limits (not always easy to establish, however) can prevent exposure, so 'adequately control' would not apply. However, as with all PPE gloves fail to danger, to the possibility and consequences of failure need to be risk assessed. What I was referring to is that where contact between chemical and skin is not easily avoided there is no defined exposure limit that tells you what is required for adequate control. As a, perhaps simplistic, example take water. We use it to wash off other, possibly more hazardous chemicals. However, excessive exposure to water (i.e. wet work) is a very common cause of occupational contact dermatitis. At what level of skin exposure to water would one consider this not longer represents adequate control? There are literally hundreds of chemicals that we come into contact with daily, often without considering them as chemicals, that can, if exposure is sufficient, initiate a skin reaction. Incidentally, many of these will never appear on a safety data sheet. In some cases with some people a minimal exposure will initiate a skin reaction, whereas other people will remain unaffected. Where does one set the skin exposure limit? Chris

That's fine Ray, I already did :o)

David The UK legal system recognises past cases as being relevant by having an influence through case law and the stare decisis precedent. However, today judges are less bound by previous case law and often use obiter dictum, for legal illustration or argument, on the basis that very few cases have the same material facts. The purpose of case law is to ensure consistency and fairness. The problem is that the law is constantly in a state of flux. Cases of yesteryear would not necessarily provide the same outcome in court today. This is particularly so with health and safety law which has moved on a great deal in modern times. The 'reasonably practicable' concept is inextricably linked to strict liability offences, not without some criticism either due to s40 (reverse burden of proof) which requires the accused to show that they did all that was reasonably practicable, or practicable, to comply with a duty. Hence the SFAIRP qualification is problematic due to interpretation by the court, outcome (ie hindsight), case law and HSE guidance.