Where does the term reasonably practicable come from?
The term “reasonably practicable” is a cornerstone of health and safety law. It’s a bit of a balancing act—it acknowledges that while the priority is to eliminate or minimise risk, it isn’t always possible or realistic. At its extreme eliminating a risk might mean eliminating a business.
How to determine if something is reasonably practicable?
The law provides that to determine what is reasonably practicable, you must consider:
Likelihood: How often is this incident likely to happen?
Severity: If it does happen, how bad will it be? (A papercut vs. a lost limb).
Knowledge: What do you know (or what should you know) about the risk and how to fix it?
Availability: Are the tools or methods to fix the risk actually available?
Cost: Is the cost of the fix “grossly disproportionate” to the benefit?
Whilst these are the factors to be taken into account, the reality is there is no standard mathematical formula. Rather, the factors detailed in the legislation (HSWA s 22) have to be taken into account. They inevitably track to the cost and whether the cost is
grossly disproportionate to the risk. This is somewhat disingenuous as cost is quantified
in monetary terms and this is difficult if not impossible in respect to health and safety
risk. But despite this difficulty, the courts will inevitably apply their judgement, so those managing health and safety need to as well. And, as a leading NZ health and safety consultancy, we advise those making the decisions need to be prepared to justify them.
What is needed
Organisations need to be in a position to demonstrate they have been through the
exercise of identifying and considering the need for, and availability of, controls where
the risk is not eliminated. Elimination is the primary strategy and organisations need to
demonstrate why not if this is not adopted.
What happens if elimination of risk is not possible?
If elimination is not possible, SFARP requires organisations implement effective
(although lower level) controls consistent with the hierarchy of controls, until it’s no
longer reasonable or it becomes impractical for them to do more.
Short of elimination, an assurance mechanism becomes critical to ensure controls
work as intended.