Love the line on "opinion" this being the nebulous grey we find ourselves wading through.

Driving without due care or wanton and reckless driving are also opinion.

Interesting Peter.

Some years back the organisation I worked in was served a couple of INs around (personal) hoists.

First and only time - I was itching to appeal, thought we had grounds and a lawyer working for us thought the act of appealing just in itself could overturn the Notices. As these are heard at Employment Tribunals, with a 'layperson' panel, I thought it could have got a positive outcome.

However my own employer legal people were risk averse and although appeal costs are low, (pre FFI too) they didn't want to upset the inspector. Shame - win or lose it would have been a great CPD add for me!

An interesting post this as I have just had an inspection this week and have been issued an Improvement Notice relating to a breach of Work at Height Regulations 2005.

We have a commercial workshops on site (we are a transport & logisctics company), in the workshops are inspection pits, the HSE Inspector did not like the fact there were no "pit covers" and so issued the IN.

My mitigations to him were this:

• There are only three members of staff working in there, they are fully trained thus relying on training, competence and knowledge.
• All other persons (visitors etc) are not permited entry and if they are they do not go close to the pits (there are walkways and segregation)
• The pits spend 85% of the time covered by a vehicle or trailer, it was a rare day of the inspection when they were both currently uncovered (in transition from one vehicle to another).
• When not in use they are normall cordoned off by posts with plastic chains (sadly on this occasion they were not in place).
• There are plent of signs warning of the hazard

I noticed your post mentions "Opinion" because thats exactly what happened, the inspector stated that in his opinion the posts and chains only served to warn of a hazard but did not ensure a person could not fall down the pit, his reasoning was that if a person tripped they would fall though the chains taking them with them into the pit, this means we did not comply, there was still a risk to our employees.

I tried to argue that with all the mitigating controls in place surely this falls within the relms of "Where Reasonably Practicable" insomuch as the controls had lowered the risk, the inspector did not agree.

I can see his reasoning, the cost of covering the pits has been a couple of hundred pounds, compare that to a person falling into the pit sustaining serious injury or death and its a no brainer, so with that in mind I wonder about your thoughts, how far or how much is Reasonably Practicable?

Then you end up with the manual handling injury lifting covers to and fro. Our pit used to have railway sleeper sections as the cover when not in use "just in case" the driver wasnt watching their steering in the rest of the garage. Thankfully the pit was only used a couple of days per month.

It costs the recipient £160 an hour if they accept whatever the Inspector says or if they lose on appeal.

If they win on appeal they should demand lots of money back!

So, the inspection pit. £200 to cover the pits. Nothing.

But assessing what is "reasonably practicable" requires consideration of "time, money and effort" and the net benefit in terms of risk reduction (or increase?).

Each time a person moves the boards covering the pit into place or removes them to enable work in the pit, they are necessarily at risk of falling in. Add in other risks of doing that job such as the manual handling suggested and the net benefit in terms of risk reduction is debatable. Add in the time (= money, repeatedly) to do this and the Inspector's opinion might well be incorrect.

With a well controlled environment with a limited number of people working near the pit, the risk of falling in could well increase if covers are in place. Possibly the likely consequence also increases. Someone accidentally steps over the edge - they probably land on their feet. In contrast, if someone is bending over to place or remove a board, they have a good chance of hitting the bottom head first, thence with overall greater average consequence. 

The test of the Inspector's opinion could be illustrated by a minor, short duration roof repair on a four storey building with a sloping roof with direct access from the top floor. Of course, a roofer could fall perhaps 20m and the consequences might likely be very severe or fatal. But against that you have to assess the risks of providing full height roof edge protection and taking it down again. Erecting and dismantling scaffolding is a well known high risk activity (even when done by the rule book) - so you put more people at risk for longer periods. Ergo the risk may actually be increased for all but the roofer.

As has been indicated earlier, HSE's own guidance is qualified. Inspectors should NOT take one page of HSE guidance out of context.

Hi Chris 

Mark indicated that the cost of the covers was "a couple of hundred pounds", but with or without a zero on the end of that, this is a minor expense compared to the hassle.

One of the key judgments on what is "reasonably practicable" talks about "time, money and effort".

From my perspective, in this scenario the "time [and] effort" are likely to be much more relevant than the "...money...", though of course the £200 or £2000 does come in to the overall equation.

Each and every occasion, someone or someones has to remove the cover and then replace it, this takes time/effort (and thence money) whilst also presenting risks. 

Once did an assessment of whether a proposed safety investment was "reasonably practicable" considering the different judgments in Edwards v NCB and Marshall v Gotham, the latter being less generous from a regulator's perspective [i.e. making it easier for the duty holder to show that something is NOT reasonably practicable].

Either way the proposed expenditure was clearly disproporportionate by reference to HSE guidance ('R2P2'), even before I needed to consider attempting to apply a value for loss of heritage and amenity.

One of the problems from the duty holder's perspective is that the burden of proof lies with them rather than the Inspector to prove that something was NOT reasonably practicable (on the balance of the evidence). 

So, the Inspector can afford to be a little bit lazy and simply provide their opinion, without the need to substantiate this.

From a legislator's point of view this is probably the right way to draft the legislation in terms of onus of proof. In most scenarios it would be almost impossible for the Inspector to prove that something IS reasonably practicable - we simply do not have sufficient statistical data.

As example, it used to be the case that about 10 roofers fell to their deaths in the UK each year. We have a reasonable idea of how many people have the job title "roofer", so you could work out how roughly how many roofer hours are worked per year in the UK, and thence calculate the probability of a fatal accident per year (in R2P2 terms the Individual Risk of Death) involving a roofer falling as say 6 x 10-6 (it might well be significantly higher!). But that would be very simplistic as many of the accidents that happen are to people whose job titles are NOT "roofer". So that 6 x 10-6 might actually be 2 or 3 x 10-6 and would vary VERY substantially according to the nature of the work being done - duration, weather, flat or sloping (and if sloping, how steep), roof surface, the work to be done, precautions etc etc etc.

If you attempted the same exercise looking at the likelihood of someone falling into a pit and being killed the sums would be FAR more difficult to work out.

Every pit cover I have ever worked with has been installed from inside the pit not above it!!

I think that, reading between the lines, that the inspector would not have been too bothered had the chains and posts been in place at the time of his visit, there is no use telling them that posts in chains are always used to keep others clear when they were not in place during the visit.