Is reasonably practicable practical?
Okay, so this seems like a hand on heart definition – meaning….your honour……(hand on heart) I have done everything reasonably practicable that someone in my position would be expected to do.
Under the current NSW Act, you can use reasonably practicable as a defence for not complying or something being out of your control and it was impracticable to make provisions in that instance. Currently you need to demonstrate that it was not reasonably practicable, whereas these new laws you don’t need to demonstrate this – you are innocent until proven guilty.
To align reasonably practicable with the other states one thing that is new in NSW is that the PCBU will be qualified by reasonably practicable. What on earth does that mean? Well reasonably practicable is currently only brought up usually in a court room, it is now used in more of a positive light to ensure that PCBUs protect people at work by looking at all their risks and reducing or eliminating them so far as reasonably practicable. If they breach this reasonably practicable duty, the prosecutor must prove the case. I wonder if they will bring out a CSI type show on safety related incidents where the prosecutors investigate a case to find organisations guilty for not doing everything reasonably practicable? I wonder if it would make for good viewing? I know I’d watch it.
Where were we……okay…..specifically the WHS Act defines reasonably practicable as the duty to ensure adequate health and safety which is or was at a particular time reasonably able to be done in relation to ensuring adequate health and safety.
You need to take into account the:
- Likelihood of occurrence
- Degree of harm
- What the person concerned knows, or ought to reasonably know about the hazard or risk and ways to eliminate or reduce the risk
- Ways to eliminate or reduce the risk are actually available, suitable and the cost is proportionate to the risk.
It’s not rocket science, in a nut shell you must do what can reasonably done in the circumstances based on what a reasonable person in that position would be expected to know and do. The greater the risk, the greater the effort to reduce or eliminate it. I think the hard part will come when cases go through the courts as to their take on this reasonably practicable test and different interpretations – now that would make good television!
The Safety Nerd x