What does reasonably practicable actually mean in the light of the HSE's strategy for events in 2017?

6 March 2017

The HSE have issued a clear statement of intent in their strategy for events in 2017 that they intend to hold event companies to account for safety failings. In event construction, much of the debate as to what should or should not be permitted comes to down to what is considered to be ‘reasonably practicable’. So, what does that actually mean?

In general, terms the Health and Safety at Work Act (HASAWA) is clear that the employer must ensure, so far as is ‘reasonably practicable’ the heath safety and welfare of employees and non employees. Most prosecutions stem from a failure in this basic concept so event companies must be able to defend their general arrangements on this basis.

The idea is that an employer can exercise judgment in balancing the reduction of risk against what it costs to achieve it. For example, reasonable measures need to be taken to ensure that workers are aware of the general site risks and controls. A lengthy presentation on site rules would normally not be reasonably practicable but requiring workers to read a short brief on the site rules before being allowed to collect their pass could be deemed to be a reasonably practicable solution.

In some circumstances, there is an absolute duty to eliminate the risk. This will apply to hazards where there is inevitability of injury – in other words, where a hazard poses certain injury or ill health. These offences can be recognised by use of the words "shall" or "must" in the text of the law. Where the duty is ‘absolute’ there is no defence of ‘reasonable practicability’. An example is the need for six monthly inspections of rigging points.

If a case goes to court and the defendant were considering introducing the concept of what was reasonably practicable as a defence, it would need serious consideration. Under HASAWA where the defendant is arguing their case regarding what was reasonably practicable the burden of proof shifts to the defendant to prove it on balance of probability. In other words the defendant would need to prove to a reasonable degree that an informed decision was made regarding the balance of risk against costs. This would apply to an employer or an individual charged with offences under HASAWA.

So how can reasonable practicability be proved? This is where a risk assessment comes in (which is in any case a specific legal requirement). A good risk assessment should show the extent to which risks were reduced by specific controls. There should be an operations budget which allows for the costs involved and so by implication risks are balanced against costs. Ideally the risk assessment is signed off by both the assessor and a line manager who is signing to affirm that the risk assessment has been done competently and that the controls are proportionate to the risk.

This is a good start but event companies should be aware that if a case ever comes to court the risk assessment and the calculation of risk against cost is likely to come under forensic examination by the opposing counsel particularly regarding the suitability of controls. This is where best practice guidance can be brought into the argument such as the AEV eGuide, NAA A Guide and numerous similar event specific health and safety guidance documents. These rules are written for leading event venues by event managers and event safety specialists. Such evidence would leave opposing counsel with the problem of having to disprove that the controls in place were suitable when they are tried and tested industry best practice. The reality is that the HSE or other enforcement agencies are unlikely to proceed with a case if they can see that the weight of evidence favours the defence.

All of this of course relies on the fact that the defendant can produce the evidence. Ultimately an event is just a concept and since most prosecutions will follow months or years after the event it will exist only in the memories of those who were involved. Ensuring that there is documentary evidence to prove that reasonably practicable solutions were in place would be vital to any defence.

Recent changes in health and safety law have increased both the probability and consequences of a prosecution for an accident in the events sector with a number event companies prosecuted in 2016 some of whom received £ million plus fines. It is crucial therefore that event companies have a clear understanding of the concept of what is reasonably practicable and where it is applicable in order to deter or defend against criminal proceedings.

*The term ‘reasonably practicable’ has been enshrined in UK law since the case of Edwards v National Coal Board 1949. Mr Edwards died in an accident after the supporting structure for the mine roadway gave way.The National Coal Board argued that it was too expensive to shore up every roadway in all of the mines. The case turned when it was decided that it was not 'all of the roadways' that needed shoring up; just the ones that required it. In essence this established the need to carry out a risk assessment to establish the cost, time and trouble to mitigate a risk balanced against the risk and the severity of any harm it might cause. The judge stated in his judgement:

‘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’.