So Far As Is Reasonably Practicable

‘So Far As Is Reasonably Practicable’ is a phrase that gets used a lot, but what does it mean? How do you demonstrate it?

In this post, I will talk about how to demonstrate SFARP. I’ve been doing this on complex programs for 20+ years now, both in the UK and Australia. The concept of ‘reasonably practicable’ is much easier to apply than people think. I’ve watched a lot of programs over-complicate the process. We just don’t have to do that!

I have some practical tips for you, not just theory. In Australia we do it like this … and you can learn from this wherever you operate!

Attribution

This post uses text from ‘How to Determine what is Reasonably Practicable to Meet a Health and Safety Duty’, published by Safe Work Australia in May 2013.

This copyright work is licensed under a Creative Commons Attribution-Noncommercial 3.0 Australia license. To view a copy of this license, visit here. In essence, you are free to copy, communicate and adapt the work for non-commercial purposes, as long as you attribute the work to Safe Work Australia and abide by the other license terms.

How is ‘reasonably practicable’ defined?

Section 18 of the WHS Act defines the standard that is to be met and describes the process for determining this:

S.18: In this Act, ‘reasonably practicable’, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including:

• the likelihood of the hazard or the risk concerned occurring; and
• the degree of harm that might result from the hazard or the risk; and
• what the person concerned knows, or ought reasonably to know, about the hazard or risk, and about the ways of eliminating or minimising the risk; and
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Note that this definition is actually a risk analysis process. The WHS Risk Management Code of Practice provides the minimum process that will meet this requirement.

Top Tip

All Relevant Matters

The process requires that all relevant matters, including those listed in the section, are taken into account and weighed up when determining what is reasonably practicable in particular circumstances.

There are two elements to what is ‘reasonably practicable’. A duty holder must first consider what can be done—that is, what is possible in the circumstances for ensuring health and safety. They must then consider whether it is reasonable in the circumstances to do all that is possible.

Some of the matters listed in section 18 will be relevant to identifying what can be done, for example, if control measures that will eliminate or minimize the risk are available and suitable. Other matters will be relevant to identifying whether what can be done is reasonable to do, for example, if the risk and degree of harm are grossly disproportionate to the cost of implementing the control measure.

To identify what would be reasonably practicable to do, all of the relevant matters must be taken into account and a balance achieved that will provide the highest level of protection that is both possible and reasonable in the circumstances. No single matter determines what is or was at a particular time reasonably practicable to be done to ensure health and safety.

What Each of the ‘Relevant Matters’ Mean

Factor	Relevance
The likelihood of the hazard or the risk concerned occurring	The greater the likelihood of a risk occurring, the greater the significance this will play when weighing up all matters and determining what is reasonably practicable. If harm is more likely to occur, then it may be reasonable to expect more to be done to eliminate or minimize the risk. The frequency of an activity or specific circumstances will be relevant to the likelihood of a risk occurring. The more a worker is exposed to a hazard, the more likely they are to suffer harm from it.
The degree of harm that might result from the hazard or the risk	The greater the degree of harm that could result from the hazard or risk, the more significant this factor will be when weighing up all matters to be taken into account and identifying what is reasonably practicable in the circumstances. Clearly, more would be expected of a duty holder to eliminate or minimize the risk of death or serious injury than lesser harm.
What the person concerned knows, or ought reasonably to know, about the hazard or risk, and ways of eliminating or minimizing the risk	The knowledge about a hazard or risk, and any ways of eliminating or minimizing the hazard or risk, will be what the duty holder actually knows, and what a reasonable person in the duty holder’s position (e.g. a person in the same industry) would reasonably be expected to know. This is commonly referred to as the state of knowledge. The courts have consistently stated a duty holder must consider all reasonably foreseeable hazards and risks when identifying what is reasonably practicable.
The availability and suitability of ways to eliminate or minimize the risk	This requires consideration of not only what is available, but also what is suitable for the elimination or minimization of risk. A risk control that may be effective in some circumstances or environments may not be effective or suitable in others, because of things such as the workplace layout, skills of relevant workers, or the particular way in which the work is done. Equipment to eliminate or minimize a hazard or risk is regarded as being available if it is provided on the open market, or if it is possible to manufacture it. A work process or change to a work process to eliminate or minimize a hazard or risk is regarded as being available if it is feasible to implement. A way of eliminating or minimizing a hazard or risk is regarded as suitable if it: is effective in eliminating or minimizing the likelihood or degree of harm from a hazard or risk does not introduce new and higher risks in the circumstances, and is practical to implement in the circumstances in which the hazard or risk exists.
The cost associated with available ways of eliminating or minimizing the risk, including whether the cost is grossly disproportionate to the risk.	Although the cost of eliminating or minimizing risk is relevant in determining what is reasonably practicable, there is a clear presumption in favor of safety ahead of cost.  The cost of eliminating or minimizing risk must only be taken into account after identifying the extent of the risk (the likelihood and degree of harm) and the available ways of eliminating or minimizing the risk. The costs of implementing a particular control may include costs of purchase, installation, maintenance, and operation of the control measure and any impact on productivity as a result of the introduction of the control measure. A calculation of the costs of implementing a control measure must take into account any savings from fewer incidents, injuries, and illnesses, potentially improved productivity, and reduced staff turnover.

The first three Factors are covered in the Risk Management Code of Practice, so we won’t repeat that stuff here. I just want to note:

Remember that “what you ought reasonably to know” includes what your legislator and regulator has published. You can’t be ignorant of this basic stuff and claim to have minimized risks SFARP!

Top Tip

Is the Control Measure Available and Suitable?

Investigations and inquiries may identify many ways to eliminate or minimize a particular type of risk. Some of these may, however, not be available … or may not be suitable in the particular circumstances.

Examples:

• A device may not have been introduced into the Australian market, or may be incompatible with Australian operating conditions.
• Radio communication to minimise risks from people working in isolation or in remote locations may not be suitable in areas where there is no signal or a poor one.
• Mechanical lifting aids may not be able to operate in areas where there is insufficient room to move them around.
• Equipment may not be able to be used in areas where the necessary energy source, such as electricity or gas, is unavailable.
• Particular processes may not be able to be used if they rely on circumstances, including the behaviour of others, over which the duty holder has no control.

Availability

Equipment to eliminate or minimize a hazard or risk is regarded as being available if it is provided on the open market, or if it is possible to manufacture it.

A work process or change to a work process to eliminate or minimize a hazard or risk is regarded as being available if it is feasible to implement.

Suitability

A way of eliminating or minimizing a hazard or risk is regarded as suitable if it:

• is effective in eliminating or minimising the likelihood or degree of harm from a hazard or risk
• does not introduce new and higher risks in the circumstances, and
• is practical to implement in the circumstances in which the hazard or risk exists.

These tests of availability and suitability are very powerful, but they are often overlooked. Make sure that you apply these tests before you consider whether a control is reasonable – it saves a lot of effort.

Top Tip

How to Determine what is Reasonable

Just because something can be done does not mean that it is reasonably practicable for the duty holder to do it. What is required is an assessment of what a reasonable person in the position of the duty holder would do in the circumstances, taking a careful and prudent approach and erring on the side of caution.

There are options for determining what is reasonable, including Codes of Practice and Standards. We will look at this in more depth in another lesson.

Top Tip

The aim must be to keep trying to lower the likelihood and degree of harm until further steps are not reasonable in the circumstances. Questions you should ask to identify if they are doing enough are:

• Is there more I can do to either
  • minimise the risk myself, or
  • ensure another party with the relevant skills and expertise can properly implement health and safety measures and minimise risks?
• If the answer is yes to either of the above, is it reasonable for me not to do so?

Okay, here we are looking at Consultation, Cooperation and Coordination between a Duty Holder and workers or other Duty Holders. Look at the C, C&C Code of Practice for help with this.

Top Tip

The more likely the risk, the more that is required to be done to eliminate or minimize it. The greater the degree of harm, the more that is required to be done to eliminate or minimize it.

If there is at least a moderate likelihood of death or serious injury, then the highest level of protection should be provided.

The Guidance

This statement is fine in a workplace, but if you are designing something like a car, a plane, or a ship – something complex which could hurt lots of people – then this approach is inadequate. You need to apply the concept of risk tolerability and a Cost-Benefit Analysis.

Top Tip

It may not be reasonable to require expensive and time-consuming controls, for example, engineering controls, to be applied to minimize or further minimize a low likelihood of minor harm. It may however be reasonable to apply less expensive controls such as training and supervision to further lower the likelihood of the risk.

When considering each control or combination of controls, a duty holder must take into account the likelihood of a particular control [is] effective. Guards may be removed, systems of work may not be understood and followed, and personal protective equipment may not always be worn. Further controls such as signs or supervision, may be needed to make a control more likely to be effective.

Cost

While cost is specified in Section 18 (of the WHS Act) as a matter to be taken into account and weighed up with other relevant matters to identify what is reasonably practicable, this must only be done after assessing the extent of the risk and the ways of eliminating or minimizing it.

The cost of implementing a particular measure may include the cost of purchase, installation, maintenance and operation of the control measure and any impact on productivity as a result of the introduction of the control measure.

A calculation of the cost of implementing a control measure should also take into account any savings it will yield in reductions in incidents, injuries, illnesses and staff turnover, as well as improvements in staff productivity.

Remember there must be a clear presumption in favor of safety over cost.

Top Tip

Before determining whether expenditure to eliminate or minimize a risk is reasonably practicable in the circumstances, the PCBU must consider:

• the likelihood and degree of harm of the hazard or risk, and
• the reduction in the likelihood or degree of harm that will result if the control measure is adopted.

The more likely the hazard or risk, or the greater the harm that may result from it, the less weight should be given to the cost of eliminating the hazard or risk.

Okay, this is really talking about tolerability, as found in discussions of ALARP in the UK, although this Australian guidance avoids saying so!

Top Tip

If you cannot afford to implement a control measure that should be implemented after following the weighing-up process set out in Section 18 of the WHS Act, they should not engage in the activity that gives rise to that risk.

What are your questions about SFARP and Reasonably Practicable?