I have written a lot of articles over the last year on the topics of assurance, safety risk, and Reasonably Practicable. One of the topics that comes up regularly in the questions is the use of Standards as a means of determining what is Reasonably Practicable.
I have written a lot of articles over the last year on the topics of assurance, safety risk, and Reasonably Practicable. One of the topics that comes up regularly in the questions is the use of Standards as a means of determining what is Reasonably Practicable.
This is a series of three articles where I will cover the following:
While the Legal Term Reasonably Practicable has been used in Australia for some time, it only really came to the forefront of the national approach with the introduction of the Model Work Health Safety Act in 2011.
In some States and industries this represented a significant change from previous practices and with the lack of a single national regulator to provide detailed guidance, a lot of parties filled in the gaps themselves.
As a result, there is a lot of incorrect and misleading information out there, which has filtered into the ways of working for a not insignificant portion of industry.
These articles are intended to explain the proper use of the Legal Term Reasonably Practicable and to expand on the correct usage in relation to Relevant Standards.
The term Reasonably Practicable is a defined Legal Term based on over 75 years of Case Law since it was first used in 1949 [Edwards vs the National Coal Board]. There have been many prosecutions and appeals (both successful and unsuccessful) that have established clear legal precedent on its use. The Regulators have considered these cases and produced well-defined guidance on what would satisfy the test and what would not.
In this series of Articles, I reference guidance from the UK’s primary safety Regulator, the Health & Safety Executive (HSE). The UK HSE was established in 1974 and they provide extensive guidance on Reasonably Practicable based on over 50 years of Regulatory oversight and enforcement.
UK Case Law precedent is sighted in Australian Case Law on Reasonably Practicable. The UK HSE guidance therefore applies to the same interpretation of the Legal Term of Reasonably Practicable as is applied in the Australian legal context.
To be 100% clear, in this article I am not giving my opinion as to what Reasonably Practicable is, I am explaining the considered view of the Regulator based on Case Law.
ALARP and SFAIRP are the same and both refer to the same Legal Term of Reasonably Practicable. If you think they are different then you have probably been exposed to some of the misleading information that I refer to above, please watch this Video I made for a more detailed explanation.
I use the term Relevant when talking about Good Practice and Standards, it is crucial that you use this term properly. I will provide further explanation in Part 2.
As with most misunderstandings in the safety field, a lot of the issues can be traced to different meanings being applied for the same common term.
In this article I make a point of Capitalising the term Reasonably Practicable and when I do this, I am referring to the defined Legal Term (a.k.a. the Legal Test) that would be applied in court.
However, there is another use. When undertaking an explicit risk assessment, a control may be identified as both reasonable and practicable, some people would then say that this control is ‘reasonably practicable’ to implement, and while this is not incorrect, it is a different usage then the Legal Term Reasonably Practicable.
When considering Reasonably Practicable in the context of Relevant Good Practice, the determination is made by a comparison with other organisations that have the same operations and the same risk (I call these Industry Peers) and who are controlling that risk in a way that is considered Relevant Good Practice.
We all understand that if a business is not implementing risk controls in a way that is considered Relevant Good Practice and which is being implemented by their Industry Peers, then they may not be doing what is Reasonably Practicable. They need to do more, have a clear justification for their position, or risk an enforcement action.
In the same way, if an organisation is implementing risk controls that are considered Relevant Good Practice in the same way as their Industry Peers, then they are doing what is Reasonably Practicable. It is not reasonable to expect one organisation to do more than the Relevant Good Practice, when it is not also being done by their Industry Peers.
A simple question to ask is “why is it reasonable that I do more, when everyone else is just meeting the Relevant Good Practice?”. The answer here is that it’s not. While you ‘Could’ do more, and that’s up to you, what the law expects is that you ‘Should’ meet the Relevant Good Practice, not that you go beyond it.
The use of the term reasonably practicable by individuals does not always reflect the Legal Term Reasonably Practicable. I think that some people get a blinkered view of safety and think that reasonably practicable is about a never-ending drive to reduce risks as far as you reasonably can. They develop a laser focus on one issue trying to drive an ever-safer outcome but forget the Legal Term and that where Relevant Good Practice exists, Reasonably Practicable is about comparing against it.
While people may have strong views on this, often supported by a well-thought-out argument, the simple fact is that Case Law and Regulatory Guidance take precedence over individual’s opinions.
To summarise the guidance from the HSE: If you are meeting Relevant Good Practice, you are doing what is Reasonably Practicable. If there is no Relevant Good Practice, do a Risk Assessment and consider potential controls.
This approach is widely adopted and repeated in a lot of Guidance and has also become the basis of many industry standards. They can be written in many ways but are generally referred to as the Risk Acceptance Principles.
The most common usage of the Risk Acceptance Principles in contemporary standards is:
These should be applied in the order that they are presented above; this process is commonly referred to as Risk Analysis. Explicit Risk Assessment is the third option in the Risk Analysis when you have not been able to make a Good Practice claim based on the previous two.
One of the common misconceptions I come across is that every hazard must be subject to a risk assessment, and that all practicable controls must be identified and either accepted or rejected as not reasonable. They ignore the Good Practice approach.
The Risk Acceptance Principles should be applied in the correct order. Occasionally people will go straight to a Quantitative Risk Assessment and try to justify a safety claim based on a consideration that controls were not considered reasonable and practicable, when in fact there was a Relevant Good Practice example that would be considered Reasonably Practicable, and which includes some of the discounted controls. These almost always lead to expensive rework and delays once they are identified.
In some High Hazard Industries (Oil & Gas, Nuclear, Chemical/Process, etc.) it is harder to define what is good practice. There are many established standards, but they can be applied in a multitude of ways when planning and designing a facility. For High Hazard industries the UK HSE does recommend that Good Practice is supplemented by a review of available controls. As such it is reasonable to apply a ‘Process Safety’ approach or similar during design.
This requirement is for High Hazard industries only.
In most of the work we do, we are dealing with established technologies and well understood operational practices. Very little of the safety analysis we undertake involves any new or novel technology or operational practices.
For these established technologies and well understood operational practices there is often only a limited number of options for dealing with a particular health and safety issue and the optimum option is in many cases likely to have been already established as Relevant Good Practice and accepted by the regulator as Reasonably Practicable.
We don’t therefore need to reinvent the wheel every time we do something, hence the long-established principle of adopting Good Practice as the basis of Reasonably Practicable.
Relevant Standards can be considered as Good Practice as they are considered to represent a consensus view of a group of experts based upon their combined knowledge and experience.
The UK HSE States “Relevant good practice provides duty-holders with generic advice for controlling the risk from a hazard. In so far as they can adopt relevant good practice, this relieves duty-holders of the need to take explicit account of individual risk, costs, technical feasibility and the acceptability of residual risk, since these will also have been considered when the good practice was established.”
Relevant Good Practice does not relieve you of your duty to do all these things, it just gives you a simple way of satisfying the duty by relying on an already accepted approach, rather than starting again from scratch each time.
Provided that the Duty Holder can establish that the standard is Relevant then it can be adopted as Good Practice and the means of establishing what is Reasonably Practicable to address a hazard. There is no need to do more.
In (Part 2) I provide some examples of where Standards can, and cannot, be considered to be ‘Relevant’ and I then provide the tests that I apply when considering if a Standard is ‘Relevant’.
I will not cover Reference Systems in detail in this series of articles, other than to say that using the same approach as for a Standard, if there is a suitable reference system that has been previously accepted under the same regulatory regime, then this can be considered as Good Practice and therefore Reasonably Practicable.
If the first two steps of the Risk Analysis process have not been able to identify any Good Practice, then the third option is to undertake an Explicit Risk Assessment (ERA). In an ERA potential controls are considered to determine if they are reasonable and practicable to implement. I talk about ERA in other articles, so I will not go into detail again here.
An outcome of the ERA may be that no additional controls are required and a ‘Do Nothing’ approach achieves Reasonably Practicable; alternatively, the assessment may find that there are several potential controls that are reasonable and practicable and that they all need to be implemented to make the Safety Claim of Reasonably Practicable.
As noted above, some of the misleading guidance currently in use in Australia seems to point to the notion that only Explicit Risk Assessment can be used to assess a hazard, and that unless you have identified and discounted additional controls you cannot make the Safety Claim of Reasonably Practicable. This is not correct.
In practice, an ERA is the third choice of approach and is only used when a Safety Claim of Good Practice cannot be made through compliance with Relevant Standards or Suitable Reference System.
The UK HSE note “In practice therefore, explicit evaluations of risk rarely need to be made in relation to day-to-day hazards. However, duty-holders have to make them where there is no relevant good practice establishing clearly what control measures are required.””
Most safety legislation including the Work Health Safety Act 2011 in Australia and the Health and Safety at Work Act (etc.) 1974 in the UK, include the duty to ensure safety So Far As Is Reasonably Practicable (SFAIRP).
When considering a hazard, if you have a Relevant Standard or Suitable Reference System that can be considered Relevant Good Practice, then you can use this to meet the legal test of Reasonably Practicable. In other words, you have gone ‘so far as is’ to meet the Reasonably Practicable Legal Test, therefore you do not need to go further.
If you do not have a Relevant Good Practice claim, then, and only then, do you undertake an Explicit Risk Assessment and consider potential controls until you can make the judgement that you have gone far enough to meet the Reasonably Practicable test, and then you do not need to go further.
When considering what is Reasonably Practicable for a hazard, the safety analysis should apply the Risk Assessment Principles should d be applied in the correct order.
Please check back in the coming weeks for the next articles in this series.
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