Personnel to be provided with advice may include PCBU’s, company directors, managers, supervisors, workers, health and safety representatives and committees, and contractors. Communication of the obligations of workplace parties is important and should be made available as part of induction training.
Key WHS duties of PCBU’s
A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers. A key qualifier of this duty is the term reasonable practicability.
Is what can reasonably be done to eliminate or reduce a risk in the circumstances, taking into account and weighing up all relevant matters, including:
1. the likelihood of the relevant hazard or risk occurring;
2. the degree of harm that might result;
3. what the person knows or ought reasonably to know about the hazard or risk and the ways of eliminating or minimising the risk;
4. the availability and suitability of ways to eliminate or minimise the risk; and
5. The cost of implementing risk controls, including whether the cost is grossly disproportionate to the risk.
There is no legal definition of reasonable practicability but there is an emphasis on the level of care that would be considered reasonable by today’s standards. The following statements by the courts high light the central elements when determining what reasonable practicability is.
“…what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community … What is considered to be reasonable in the circumstances of the case must be influenced by current community standards.”
Bankstown Foundry case final appeal: Mason, Wilson and Dawson JJ (160 CLR 301).
“The overall test is the conduct of a reasonable and prudent PCBU taking positive thought for the safety of his workers in light of what he knows or ought to know; where there is a recognized and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it unless in the light of common sense or newer knowledge it is clearly bad; where there is developing knowledge, he must reasonably keep abreast of it and not be too slow to apply it; where he has in fact greater than average knowledge of the risks, he may therefore be obliged to take more than the average or standard precautions.”
Swanwick J. in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd (1968) 1 WLR 1776
What is considered reasonable in any particular OHS case will depend on the specific circumstances.
“such a responsibility (to reduce risk so far as reasonably practicable) can only be discharged by taking an active, imaginative and flexible approach to potential dangers. Each case must be decided on its own facts”
Holmes v Re Spence Pty Ltd (1992)
The Impact of Cost
After taking into account matters 1 – 4, only then can the person consider the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The risk and severity of injury must be weighed up against the overall cost and feasibility of the safeguards needed to remove the risk. Common practice and knowledge throughout the relevant industry are taken into account when judging whether a safeguard is ‘reasonably practicable’.
Individual PCBU’s could not claim that they did not know what to do about certain hazards if those hazards were widely known by others in the same industry, and safeguards were in place elsewhere.
The cost of putting safeguards in place is measured against the consequences of failing to do so. It is not a measure of whether the PCBU can afford to put the necessary safeguards in place. While cost is a factor, it is not an excuse for failing to provide appropriate safeguards, particularly where there is risk of serious, or frequent but less severe, injury.
The legislation specifies duties of PCBU’s including providing:
a) a safe working environment;
b) safe plant and structures;
c) safe systems of work;
d) safe use, handling and storage of plant and substances;
e) adequate facilities;
f) information instruction and training; and
g) monitoring of the workplace.
In 1949 the Court of Appeal (UK) clarified the relationship between cost and reducing risk as low as reasonably practicable.
The definition set out by the Court of Appeal (in its judgment in Edwards v. National Coal Board,  1 All ER 743) is:
“‘Reasonably practicable’ is a narrower term than ‘physically possible’ … a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”
In essence, making sure a risk has been reduced ALARP is about weighing the risk against the sacrifice needed to further reduce it. The decision is weighted in favour of workplace health and safety because the presumption is that the duty-holder should implement the risk reduction measure. To avoid having to make this sacrifice, the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved.
Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices.
Extreme examples might be:
– To spend $1m to prevent five staff possibly suffering bruised knees is obviously grossly disproportionate; but
– To spend $1m to prevent a major explosion capable of killing 150 people is obviously proportionate.
LMIT delivers the Certificate IV in OHS and the Diploma in Occupational Health & Safety Completely Online in Sydney, Melbourne, Brisbane, Perth, Adelaide and Canberra. The Advanced Diploma in OHS is also available via RPL only.
Published by: LMIT