What is Reasonably Practicable and other principles that apply to duties

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WHS Due Diligence for CEOs, Directors and Managers – NSW edition

What is Reasonably Practicable and other principles that apply to duties

Reasonable and practicable in relation to a duty under the WHS Act 2011 (s18), means 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:

(i) the hazard or the risk, and
(ii) 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.

Cost will never be an excuse to do nothing or not enough. If a risk can not be adequately controlled, the regulator may prohibit a PCBU from carrying out the activity creating the risk.

The above can be considered the minimum issues that will be taken into account by a Regulator or Court in judging whether a party has or has not met their duty under the legislation.

Examples regarding Ought Reasonably to Know

Example 1

A contractor brings an apprentice to site but had not informed the PCBU about this. The apprentice suffers an injury.
This is still the responsibility of the PCBU despite the PCBU being unaware of the apprentice being on site.

The PCBU ought to have known about the apprentice through signing in, induction and/or supervision procedures. (Note: the contractor is also responsible here)

Example 2

An incident occurs. A Code of Practice exists regarding the work during which the incident occurred.
The PCBU was not aware of the Code of Practice and therefore claims not to be responsible.

Codes of Practice are considered to be known information. The PCBU is responsible.

Other Principles that apply to Duties

Duties not transferable (WHS Act 14)
A duty cannot be transferred to another person.
For example, a director may hire a safety manager to manage safety. The liability of the director is still the same as what it was before hiring the safety manager.

Person may have more than one duty (WHS Act 15)
A person can have more than one duty by virtue of being in more than one class of duty holder.
For example, an officer has both the duties of an officer as well as the duties of a worker.

More than one person can have a duty (WHS Act 16)
(1) More than one person can concurrently have the same duty.
(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
(3) If more than one person has a duty for the same matter, each person—

(a) retains responsibility for the person’s duty in relation to the matter; and
(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

An example is when a host PCBU hires a contractor to perform work. In this case, both PCBUs have duties regarding the safety of the work undertaken.

Management of risks (WHS Act 17)
(1) A duty imposed on a person to ensure health and safety requires the person

(a) to eliminate risks to health and safety, so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

(2) A person must comply with subsection 1 to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

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