Reasonable practicability

In the Construction (Design and Management) (CDM) Regulations 2007 the term 'reasonably practicable' appears several times. It is a well-known phrase that has appeared in many of the pre-1992 health and safety legislation featured in the 'six pack'.

What is reasonable practicability?

The definition set out by the Court of Appeal (in its judgment in Edwards v National Coal Board, [1949] 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.'

Points to observe are that:

• Reasonably practicable is a narrower term than 'physically possible'.
• The computation needs to be made at a time anterior to the accident.
• The burden of proof in establishing that all reasonably practicable steps have been taken rests with the defendant.

Should reasonable practicability be pleaded ?

There are two issues here:

(1) Should the claimant plead matters relating to reasonable practicability in the particulars?

(2) Should the defendant plead reasonable practicability in the defence ?

Claimant position

On the whole it is ill advised for a claimant to plead matters of reasonable practicability, for example, by pleading 'failing, insofar as was reasonably practicable'. There are cases where this has caused considerable confusion as to the evidential burden. From the claimant's point of view it is best to leave all matters relating to reasonable practicability alone.

(1) The claimant has to show that the section has not been complied with.

(2) The defendant should raise the potential defence of reasonable practicability and show that all reasonably practicable steps were taken.

Defendant position

It is certainly ill advised of a defendant not to plead a defence of reasonable practicability. It is far from certain that a defendant who omits to plead such a case will be able to rely on such a defence at trial. Anyone in any doubt on this point should read the observations of the Court of Appeal in Merseyside Fire and Civil Defence Authority v Gavin Fraser Bassie [2005] EWCA Civ 1474 where Lord Justice Tuckey observed: 'The defendant had not pleaded the defence of reasonable practicability as it should have done.'

An attack on reasonably practicable via the European Commission

In European Commission v United Kingdom (Case C-127/05) the Commission challenged the use of the phrase 'reasonably practicable' because the Framework directive 89/391/EEC, which lays down EU employers' duties to protect the health and safety of their workers, has no such qualification.

The key findings were that: '51. The Commission has not established, to the requisite legal standard, that, in excluding a form of no-fault liability, the disputed clause [i.e, 'reasonably practicable' limits], in disregard of Article 5(1) and (4) of Directive 89/391, employers' responsibility'.

Extent of the duty on employers to ensure the safety and health of workers '52. Secondly, it is necessary to analyse the Commission's complaint inasmuch as it alleges that the United Kingdom did not correctly transpose Art 5(1) of Directive 89/391 as regards the extent of the general duty on employers to ensure the safety and health of workers.

'53. In that regard, although the Commission submits that the duty on the employer is absolute, it expressly acknowledges that that duty does not imply that the employer is required to ensure a zero-risk working environment. In its reply, the Commission also acknowledges that, as a result of carrying out a risk assessment, the employer may conclude that the risks are so small that no preventive measures are necessary. In those circumstances, the key point, according to the Commission, is that the employer would remain responsible if an accident were to occur.

'54. As is apparent from para 51 of this judgment, the Commission has not established that, in excluding a form of no-fault liability, the disputed clause limits, in disregard of Art 5(1) and (4) of Directive 89/391, employers' responsibility. Nor has it succeeded in establishing in what respect the disputed clause, which concerns employers' criminal liability, can affect the extent of the employer's general duty to ensure safety resulting from those provisions.

'58. Having regard to all the foregoing considerations, it must be concluded that the Commission has not established to the requisite legal standard that, in qualifying the duty on employers to ensure the safety and health of workers in every aspect related to the work by limiting that duty to what is reasonably practicable, the United Kingdom has failed to fulfil its obligations under Art 5(1) and (4) of Directive 89/391.'

The defence of reasonable practicability will be with us for some time to come.

Regulations not subject to the defence of reasonable practicability

'Reasonably practicable' appears, in 16 of the CDM Regulations, where it provides a defence to a claim (see factfile below).

But it is worthwhile reading the CDM Regulations in some detail because while one part of a section may be subject to what is 'reasonably practicable', another may contain an absolute duty. For instance while reg 27(1) and reg 27(2) on good order and site security provide the defence of reasonably practicable reg 27(3) '“ no timber or other material with projecting nails or other sharp object shall be used or remain if the nails or sharp object are a source of danger '“ has no such defence. This duty under reg 27(3) is an absolute duty.

Similar absolute duties (or at least the absence of the reasonably practicable defence) appear in:

• Regulation 28 '“ duty to ensure stability of structures. However the duty here is that 'all practicable steps' must be taken to prevent danger to any persons.
• Regulation 28(2) '“ that buttresses must be properly designed, installed and maintained and Regulation 28(3) '“ no part of a structure shall be loaded as to render it unsafe are absolute duties.
• Regulation 30(2) '“ states that an explosive charge should only be used if suitable and sufficient steps have been taken to ensure that no person is exposed to risk of injury from the explosion or flying material therefrom.
• The duty under reg 31(1) is to take 'all practicable' steps to prevent danger from an excavation collapsing. However very specific steps are outline in reg 31(2) to reg 31(5) none of which are subject to a potential defence of reasonable practicability.
• The duties under reg 32 (cofferdams and caissons) appear to be absolute and clear.
• Similarly there is no defence of reasonable practicability in relation to the duties regarding Energy Distribution Installations (reg 34).
• The duties in relation to vehicles appear to be absolute (reg 37) as to the duties to prepare and implement emergency procedures (reg 39) and provided emergency routes and exits (reg 40).
• The duty to provide fire detection and firefighting equipment in reg 41 is mandatory. The only proviso comes in reg 41(5) where the duty to ensure that every person is at work is instructed in the correct use of fire equipment is subject to the defence of reasonable practicability.

The Construction Regulations are a curious hybrid of absolute duties and duties subject to the defence of 'reasonable prac- ticability' and because of this, both claimants and defendants must read them with care.