A clash with Europe on health and safety law

It is well recognised that all employers owe various duties to their employees to provide work places and practices that are inherently safe. For those involved in the construction industry the CDM regulations set out the duties of planning supervisors, designers and contractors to ensure that safety is a significant part of the planning and building process.

However, some of these obligations are qualified by the term: "so far as is reasonably practicable".

So, what is meant by the term" reasonably practicable?"

The technical answer is: "By reference to a computation made in which the quantum of risk is placed on one scale and the disadvantages involved in the measure necessary for averting the risk is placed upon the other. It amounts to a balance between risk and cost, inconvenience and the effect the safety measure will have on production". '

The question of what is "reasonably practicable" invariably involves carrying out a risk assessment and balancing the likelihood of the "event occurring" against the cost of taking action to eliminate it.

But, what does this all mean in practice ?

A recent case involved fatal accidents where two company employees were providing traffic management services which involved moving a mobile lighting tower. Unfortunately, they failed to lower it sufficiently and it struck an overhead power cable.

The employer contended that all practicable steps had been taken to ensure the safety of the men, by way of training, and instructions and their actions could not have been foreseen. The HSE argued that the issue of foreseeability was irrelevant when deciding whether the employer had breached its duty to take all reasonably practicable steps for the safety of its employees.

The Court of Appeal concluded that an employer could refer to the potential for the "event" occurring in its defence. The court held that it is justifiable for an employer not to take all preventative measures, where a low degree of risk and a high degree of cost arise.

The phrase "so far as is reasonably practicable" is not a defence as such. It merely qualifies the employer's duty.

In another case (where an employee's negligence threatened the safety of third parties) the employer was not precluded from arguing that it had taken all reasonably practicable measures to ensure that third parties were not exposed to risk.

Two practical examples of the application of the "reasonably practicable" argument include :

• Merseyside Fire Authority v Bassie
The claimant (a fireman) suffered injury during a training exercise in the fire station appliance room.

The judge found he slipped on an invisible layer of fine dust and the Court of Appeal held that the presence of dust (even though not visible) was a substance which breached the regulation. It was reasonably practicable to keep the floor clear from dust by wet mopping after brushing. The employer lost.

• Burgess v Plymouth City
The claimant was employed as a school dinner lady and cleaner. She tripped over a plastic container used to store children's packed lunches. The container should have been stored away. The court accepted that it would have been clearly visible bearing in mind its size and colour.

The trial judge found for the claimant but allowed 50% for contributory negligence.

The employer argued it was the claimant's job to tidy up to ensure the regulations were complied with. The Court of Appeal dismissed this argument, concluding that the container was an obstruction that could cause a person to trip or fall and the claimant was within the class of persons protected by a statutory duty. As there was a system in place to stow away containers at the end of the school day it was reasonably practicable to do so. The failure amounted to a breach of the appropriate statutory regulation.

It will be seen, nevertheless, that the "reasonably practicable" point is very much a live issue in the UK.

Practicable wording
However a long dispute between the European Commission and the HM Government is nearing a conclusion, with the EU Advocate General delivering an opinion in favour of the UK retaining its reasonably practicable wording.

Admittedly the opinion has yet to be scrutinised by the European Court of Justice where a decision is anticipated on the point later this summer. The Commission's legal challenge argues that the "reasonably practicable" provision in UK law qualifies employers obligations to their employees making it inconsistent with the framework Directive 89/391/EEC. If the exclusion applies, employers can escape liability.

The Commission contends that the Directive precludes any such exclusions and that the national laws of member states should impose strict liability on employers for any event prejudicial to the safety and health of employees. 

The Commission accepts that the sole possible exceptions to this are in effect cases of force majeure specifically mentioned in Article 5(4) of the framework directive, that is "unusual or unforeseeable circumstances which are beyond the employers' control, or to exceptional events the consequences of which could not have been avoided, despite the exercise of all due care."

This would place very different obligations on all employers in the UK and would effectively end the "reasonably practicable" defence currently available.

However, all is not lost as the Advocate General interpreted the wording of the directive as defining the substance of employers' duties as being to ensure safety.

In his view it did not follow that the legal mechanisms for imposing liability could not take into account questions of the extent to which fault or negligence had caused a breach of the duty.

His opinion was heavily influenced by the fact that in the negotiations leading up to the Directive the conceptually different approach in existing UK law had been highlighted and the Directive was intended to accommodate this apparent anomaly.

The decision of the European court has potentially serious implications for all UK employers and their insurers as it will materially affect employers' duty of care and the interpretation of that duty.

If the decision goes against the UK then modifications will have to be made to the reasonably practicable interpretation, to limit its effects to those cases where risks were unforeseeable or which could never be guarded against by any practicable means.

The ramifications for UK law are far-reaching and will require fundamental changes to our approach to health and safety risk management.

No doubt liability insurers who write employers' liability cover will be anticipating the court's decision with some trepidation. IT

Hugh Price is head of business litigation at Hugh James