Levels of statutory duty

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Levels of statutory duty

There are three levels of statutory duty which form a hierarchy of duties. These levels are used extensively in health and safety statutory (criminal) law but have been defined by judges under common law. The three levels of duty are absolute, practicable and reasonably practicable.

Health and safety foundations

- Absolute duty

This is the highest level of duty and often occurs when the risk of injury is so high that injury is inevitable unless safety precautions are taken. It is a rare requirement regarding physical safeguards, although it was more common before 1992 when certain sections of the Factories Act 1961 were still in force. No assessment of risk is required but the duty is absolute and the employer has no choice but to undertake the duty. The verbs used in the Regulations are ‘must’ and ‘shall’.

An example of this is Regulation 11(1) of the Provision and Use of Work Equipment Regulations concerning contact with a rotating stock bar which projects beyond a headstock of a lathe. Although this duty is absolute, it may still be defended using, for example, the argument that ‘all reasonable precautions and all due diligence’ were taken. This particular defence is limited to certain health and safety regulations such as The Electricity at

Work Regulations and The Control of Substances Hazardous to Health.

Many of the health and safety management requirements contained in health and safety law place an absolute duty on the employer. The need for written safety policies and risk assessments when employee numbers rise above a basic threshold are examples of this.

-Practicable

This level of duty is more often used than the absolute duty as far as the provision of safeguards is concerned and, in many ways, has the same effect. A duty that ‘the employer ensure, so far as is practicable, that any control measure is maintained in an efficient state’ means that if the duty is technically possible or feasible then it must be done irrespective of any difficulty, inconvenience or cost.

Examples of this duty may be found in the Provision and Use of Work Equipment Regulations (Regulation 11(2) (a and b)) and the Control of Lead at Work Regulations

where Regulation 14 states, ‘Every employer who provides any control measure . . . shall ensure, so far as is practicable, that it is maintained in an efficient state . . . and in good repair’.

-Reasonably practicable

This is the most common level of duty in health and safety law and was defined by Judge Asquith in Edwards v. the National Coal Board (1949) as follows:

‘Reasonably practicable’ is a narrower term than ‘physically possible’, and seems to me to

imply that computation must be made by the owner in which the quantum of risk is placed

on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in time, money or trouble) is placed in the other, and that, if it be shown that

there is a gross disproportion between them – the risk being insignificant in relation to the

sacrifice – the defendants discharge the onus on them.

In other words, if the risk of injury is very small compared to the cost, time and effort required to reduce the risk, then no action is necessary. It is important to note that money, time and trouble must ‘grossly outweigh’ not balance the risk. This duty requires judgement on the part of the employer (or his adviser) and clearly needs a risk assessment to be undertaken with conclusions noted. Continual monitoring is also required to ensure that risks do not increase. There are numerous examples of this level of duty, including the Manual Handling Operations Regulations and The Control of Substances Hazardous to Health.

The term ‘suitable and sufficient’ is used to define the scope and extent required for health and safety risk assessment and may be interpreted in a similar way to reasonably practicable. More information is given on this definition later.

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