‘Reasonable practicability’, ‘reasonable foreseeability’, and ‘gross disproportionality’ were explored in the SHP Legal Arena today (16 May) by Kevin Bridges, who used a number of recent landmark health and safety judgements to illustrate the concepts.
Kevin, a partner in Pinsent Masons and a chartered member of IOSH, began by reminding the packed Arena of the split burden of proof in health and safety cases: it is initially on the prosecution to prove there was a risk to employees (section 2 HSWA) and/or non-employees (section 3) and, once this has been proved, the burden shifts to the defendant (employer) to prove that they have done everything reasonably practicable to avoid that risk.
Said Kevin: “Basically, the jury has to be sure there has been an exposure to risk and that the employer has done everything reasonably practicable to avoid it.”
Employers have a duty to ensure the safety of their employees in whatever way necessary – unless it is not reasonably practicable. Kevin continued: “It’s about the benefit you get from taking further action; if that action is disproportionate, then it’s not reasonably practicable.”
The confusion arises because of the different standards of care demanded by civil and criminal law – one is based on proportionality, while the other is based on gross disproportion. The question, said Kevin, is whether or not we can balance these different standards.
To try to answer this, Kevin cited the appeal case of Baker v Quantum Clothing [2011], which involved common-law negligence and statutory liability, and in which the fundamental question was: were the employers liable for the exposure to excessive noise of employees in the 1960s and 70s?
Kevin explained: “The majority view among the five Supreme Court judges was that safety is relative concept – as if we didn’t all know that already! In other words, foreseeability has a role to play in determining whether or not a workplace is safe. What the judges said was that safety and foreseeability are not absolute. Some risks might be acceptable, but it depends on the prevailing standards. What was acceptable in the past may not be so now.
“Basically, safety involves making a judgement, referencing the standards and laws of the time. In other words, it is dynamic – evolving all the time.”
The other interesting thing about this appeal case is that the judges looked at the HSWA (even it was not relevant to the case, as the risks in question occurred at a time when the old Factories Act was in place) and concluded that it is concerned with ‘material’ risks and not ‘absolute’ risks.
In Baker, Lord Saville said safety will depend on hindsight to some degree – in that you can’t judge safety using the benefit of hindsight. Kevin quipped: “I wish the HSE would adopt this principle!” He went on to explain that Lord Mance, in giving the lead judgement in Baker, said the ‘gross disproportion test’ (first elaborated in the Edwards v National Coal Board case in 1949) “places an unjustified gloss on the statutory wording”.
According to Kevin, this means the fundamental question for employers, or practitioners, is: would you have foreseen the risk and would you have determined that they might foreseeably cause harm. “These are material risks,” he claimed.
He then moved on to the appeal cases of Tangerine Confectionery and Veolia, which were heard together last year. In each case, causation of the incidents was examined, and the appeals centred on the foreseeability of the incidents to the employers. Kevin said: “Section 2 of the HSWA talks about safety – it doesn’t mention risk, but section 3 does. However, the Appeal Court said they were ‘all the same thing’ – sections 2 and 3 are both concerned with safety and risk.”
The Court also said – in contrast to the Chargot case, which held that ‘blood on the carpet’ was proof of risk – that while an accident is evidence of risk, it is not proof. “Under sections 2 and 3,” Kevin pointed out, “you don’t need to have had an accident to be prosecuted. As the Appeal Court in Tangerine and Veolia said, causation isn’t an ingredient of the offence.”
The bottom line, Kevin concluded, is “good risk assessment is absolutely fundamental. Your risk assessments shouldn’t just justify what you are going to do – they should depict all the available controls and then specify which four or five of those you are going to implement to address the risk.
“These cases, in my opinion, give practitioners the opportunity to focus on their risk assessment and make sure that what they are doing is reasonable and proportionate and not gold-plated. They allow you to be more confident in your assessments – to be able to say ‘that’s enough’.”
For a feature-length article containing more detail on the cases mentioned by Kevin, and looking at risk and proportionality, click here. For another feature on the meanings of reasonable practicability and reasonably foreseeable, click here.
Kevin spoke to SHP following his seminar and told us the differences between the first two Corporate Manslaughter prosecutions.
Section 2 states that the employer is to ensure Health Safety and Welfare of employeees, how is this achieved without assessing the risk associated with thier undertakeings?
Someone should forward the above article to Merlin Attractions Operations Ltd regarding the Warick Castle fatality.
Upon review they may decide not to appeal.
I hope they do appeal and incur further costs.
I can’t see it when there are so many precedents out there.
Every Asbestosis case emanating from contact prior to about 1980 could be argued in exactly the same way, that it was not reasonably foreseeable.
““Section 2 of the HSWA talks about safety – it doesn’t mention risk, but section 3 does. However, the Appeal Court said they were ‘all the same thing’ – sections 2 and 3 are both concerned with safety and risk.””
I would like to know how the Appeal court made that deicsion. Section indeed does not mention safety risks but does include health risks; Section 3 specfically states risks to their health or safety. Are they saying the absence of safety risks in Section 2 is just an oversight.