The Health and Safety at Work Act 1974 (the Act) imposes a duty on employers to ensure, so far as is reasonably

practicable, the health, safety and welfare at work of all their employees. The qualifying phrase 'so far as is reasonably practicable' is not defined in the Act, but has been subject to considerable judicial interpretation over the past three decades. Recently, the extent to which an employer can rely on the act or default of an employee as part of a reasonable practicability defence has again been the focus of case law.

The meaning of 'reasonable practicability'

The concept of 'reasonable practicability' was defined by the Court of Appeal in Edwards v National Coal Board [1] : it concluded 'reasonably practicable' was a narrower term than 'physically possible' and implied that a computation must be made, in which quantum of risk is placed on one scale and the sacrifice involved in the measures required to avert the risk (whether in money, time or trouble) on the other. Deciding whether you have done everything reasonably practicable to avoid accidents in the workplace therefore requires a careful balancing exercise. Only if the risk is insignificant compared to the measures required to avert it will the standard have been discharged.

Section 40 of the Act places the burden of proof squarely on the defendant. It must prove on the balance of probabilities that it did everything reasonably practicable to avoid the incident or accident. This is not an easy burden to discharge.

Reasonable practicability and employee negligence

Where an employer has in place appropriate policies, has provided training and monitored its staff, is it open to the employer to argue that it did everything reasonably practicable to ensure the health of safety of its staff, even where an employee ignores all of these measures and an accident results? Historically, the courts have taken a strict line on this issue, holding that one of the responsibilities of employers is to protect employees from themselves they cannot avoid responsibility simply by pointing the finger at an employee.

An employee may be personally liable under section 7 of the Act, which provides that it is the duty of every employee to take reasonable care for the health and safety of himself and of others who may be affected by his acts or omissions. However, individual liability under section 7 will not absolve an employer of liability, as case law has shown.

R v British Steel plc [2]

In this case, a worker was killed in the course of moving a steel platform. The men worked under the direction of the company's engineer; however the platform was not properly secured and collapsed. British Steel argued that the workmen had disobeyed instructions and, even if the supervisor had been at fault, the company, at the level of its directing mind, had taken reasonable care. The court held that the duty imposed on British Steel was absolute, and a company could not avoid liability by showing that management at senior level had taken all reasonable care to discharge the duty.

R v Gateway Foodmarkets Ltd [3]

In this case, a store manager died when he fell through a trap door into a lift shaft whilst trying to rectify an electrical fault. The manager had attempted to free the lift, which had become jammed, by hand. This was a regular, though unauthorised, practice of which neither the Gateway head office nor senior management were aware. The Court of Appeal held that the failure was attributable to the employer and the employer could not rely on reasonable practicability to relieve it of liability where an employee had been negligent 'in the course of his employment'.

One case which seemed slightly out of kilter with the prevailing judicial view was R v Nelson Group Services (Maintenance) Ltd [4] . This concerned a gas fitter who had negligently fitted a boiler, exposing the occupants of the premises to danger. The Court of Appeal held that: "the fact that an employee did the work carelessly or omitted to take a precaution he should have done does not of itself preclude the employer from establishing that it had done everything that was reasonably practicable". This case muddied the waters and left employers unsure of the extent of their liability.

The enactment of the Management of Health and Safety at Work Regulations 1999 (the Regulations) seemingly put an end to the confusion. Regulation 21 states: "nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of an employee of his." The effect of this appeared to be to prevent employers from relying on the fault of an employee when defending a case on the basis that they had done everything reasonably practicable to ensure the health, safety and welfare of their employees.

However, in recent months, the courts have revisited the concept of reasonable practicability in the case R v HTM Ltd [5] , which has thrown a spanner into the works.

In this case, two men were fatally electrocuted when they made contact with overhead power lines whilst attempting to move a mobile lighting tower when elevated (contrary to their training and written instructions on the tower itself). HTM was prosecuted under section 2 of the Act and sought to adduce evidence to establish that: it had done everything reasonably practicable to ensure the health and safety of its employees; the accident was a result of the employees' own actions; and it could not reasonably have foreseen that experienced, trained and competent personnel would act contrary to their training and behave in a negligent manner. The case came before the Court of Appeal on a preliminary issue. The Health and Safety Executive argued that HTM could not rely on an employee's negligence to found a defence of reasonable practicability owing to regulation 21 of the Regulations.

The court disagreed. It ruled that 'reasonable practicability' was not a defence, but rather was a qualification of the statutory duty and as such, HTM was entitled to adduce evidence to show that what had happened was purely the fault of one or both of its employees. If the jury at the substantive trial is persuaded that HTM did everything to try and prevent the accident from happening, it will be entitled to be acquitted. The trial is due to take place shortly, so it is very much a case of 'watch this space'. If HTM is acquitted on the basis of its submissions that it did everything reasonably practicable to prevent the deaths, the wider consequences for corporate liability under health and safety law will probably be many more prosecutions being defended.

[1] [1949] 1 All E.R. 743

[2] [1995] 1 W.L.R. 1356

[3] [1997] 3 All E.R. 78

[4] [1998] 4 All E.R. 331

[5] [2006] EWCA Crim 1156