How do we know what is considered reasonably practicable?
Workplace Access & Safety
Published at : 25 Jan 2021
Carl Sachs, Managing Director, Workplace Access & Safety interviews eminent Australian OHS lawyer and author Michael Tooma from Norton Rose, to discuss the legal compliance for working at heights.
- Script -
The codes of practice and Australian Standards are examples of what people say what people should be doing in relation to health and safety on a particular issue. Codes of practice in particular are used as evidence of what is reasonably practicable in the circumstances and really if you fail to comply with a code of practice which is relevant to an issue, well you’re going to have to have a very good excuse as to why you haven’t done this, why you have failed to comply with the code of practice. Because the legislation says it can be used as evidence of what is reasonably practicable in the circumstances.
I often get the question, “How does cost get considered when deciding reasonable practicability?” Well it’s interesting; it’s one component of reasonable practicability. And reasonable practicability is two words that have been around for a very long time.
They have created a lot of angst but at the end of the day it is a very simple concept. It’s a weighing up exercise. It’s on the one hand looking at the risk looked at in the context of its likelihood and consequences and on the other the cost and availability of controls. And those things are looked at in a point in time analysis.
So, you look at the risks involved and you look at extent of the risks, how likely it is and what are the consequences associated with it and then you weigh that up against the cost of mitigating that risk and you have to look at it in that holistic way. But you also have to look at it in relation to that particular risk and not all other risks that might be accumulated because you have got to compare apples with apples. That risk compared to the cost of mitigating that risk not all risks compared to the cost of mitigating one risk.
The reason that I say that is because I often get this proposition put to me but if we do that across all our buildings we’ll go broke. But that is not the calculation, that’s not how the courts look at it.
The courts look at the particular risk compared to the cost associated with it.
Now what you have in fall prevention, fortunately or unfortunately is a situation where the consequences can be quite severe, usually fatal in relation to significant falls from heights and the costs associated with mitigating it are often not that significant.
Quite often it will not be something that the courts will look favorably on to say that it would cost me a few hundred or a few thousand dollars compared to a loss of life which is ultimately how the situation is going to be measured. Don’t forget that at the end of the day, the judge will be sitting there, often in the context of the breach that has resulted in quite awful consequences usually fatal consequences. Deciding whether your decision was reasonable or not and that will be looked at both in terms of as an organization and in relation to officers in relation to the personal decisions of officers and personal liability of officers. These are very important decisions that you are making and you have to look at it in that prism.
OH&SAustralian OH&SWorking At Heights