Paul Cadman compares the legal concepts of ‘reasonably practicable’ and ‘reasonably foreseeable’, in respect of breaches of health and safety law and civil liability for accidents, and explores the changing interpretation of both terms by the courts.
In health and safety, the concept of what is ‘reasonably practicable’ is central to criminal liability. By contrast, what is ‘reasonably foreseeable’ is the basis of most civil liability.
The nature of the relationship of the two concepts is, however, complicated by the fact that there is a substantial overlap between civil and criminal liability in health and safety law. Indeed, the HSWA 1974, the key statute imposing criminal liability in health and safety, is essentially based on the civil-law duty of care, as set down in Wilsons & Clyde Coal Co Ltd v English.1 Moreover, much of the subordinate legislation passed under the 1974 Act, such as the Provision and Use of Work Equipment Regulations 1998 and the Workplace (Health, Safety and Welfare) Regulations 1992, allow for both civil and criminal liability, in respect of the same regulations.
A further complication is the uncertainty of the two concepts, both of which have been subject to considerable judicial interpretation. The concept of ‘reasonably practicable’ is central to the HSWA, and defines the extent to which the defendant has to ensure the health and safety of the relevant parties under sections 2 to 6 of the Act. Rather than a defence to criminal liability, the concept qualifies the nature of the duty of care itself under the Act, as made clear in R v HTM Ltd [2006].2
The concept of ‘reasonably foreseeable’, meanwhile, is central to the definition of liability in the common-law tort of negligence – the main civil action brought in respect of injury at work. Based on the idea that the defendant has been negligent and the claimant has suffered loss or injury as a result, the claimant has to prove that the defendant owed them a duty of care, that the duty was broken, and that the damage arose as a consequence.
The duty of care is limited to those matters that are ‘reasonably foreseeable’ to the defendant, while, in determining the extent of the injuries or loss that can be claimed for, the courts, too, limit this to what they believe would be ‘reasonably foreseeable’. It is therefore no surprise that the legal definition of what is ‘reasonably foreseeable’ should have changed over time, as the courts seek to expand, or sometimes contract, the bounds of civil liability
.
I believe that the legal concepts of ‘reasonably practicable’ and ‘reasonably foreseeable’ amount largely to what is, in effect, a common concept of legal liability. However, the courts are not always clear about the relationship between the civil standard of liability, based on what is ‘reasonably foreseeable’, and the criminal standard, based on what is ‘reasonably practicable’
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Another issue is the desire of the civil courts to find liability on the defendant to ensure that the claimant is compensated, and the concerns on the criminal side that this could lead to the imposition of a form of strict liability that is inappropriate.
Reasonably foreseeable
As stated above, the underlying basis of liability in negligence is the concept of ‘reasonable foreseeability’. This can be seen as consisting of several factors, as outlined by Tomkins.3
Firstly, there is the issue of the likelihood of the injury occurring. The more likely the accident is to happen, the more likely it should be foreseen by the reasonable man. Where the employer is expected to have greater awareness of the risks involved, then his liability is correspondingly greater, as can be seen in the case of Stokes v GKN (Bolts & Nuts) [1968].4
A second factor is the potential severity of the outcome. Where the possible result is a greater injury, then the defendant needs to exercise a greater level of foresight. This can be seen in the case of Paris v Stepney Borough Council [1951],5 where the defendant was liable when a partially-sighted employee was blinded while working without safety goggles, even though most employees did not wear goggles for this task.
The fact that the employee involved had only one good eye meant that the employer should have insisted on him wearing such protection, as the risk of serious injury was greater in his case. It will not have escaped notice that the two factors of likelihood and severity, which are of importance here, are also the key variables to be considered when undertaking a risk assessment.
The third factor concerns proportionality. In this case, we are effectively looking at how practical it is for the employer to take action to deal with the problem.
This is very similar to the cost-benefit analysis, which is incorporated into the definition of ‘reasonably practicable’, but there is no specific reference to the cost in terms of time and money. Nevertheless, it is implicit in the definition of what is involved in a breach of the duty of care, as the duty is on the employer to behave as a ‘reasonable man’. In determining this, the court would take into consideration what resources the employer has to deal with the potential risk, as well as the actual risk involved – a point made clear in Armstrong v British Coal Corporation [1998].6
There is a final factor involved in this area, which, although not often expressly stated, is clearly implied, and that is the role of policy. The court will sometimes seek to widen the duty of care, or to vary its definition of what a ‘reasonable man’ would do, in order to extend the scope of liability. In recent years, for example, this has led to the development of liability for psychiatric injury caused by poor management, as in Walker v Northumberland County Council [1995].7
Furthermore, we have seen liability for injury caused by environmental factors – such as noise, vibration or asbestos – widened by imposing greater legal expectations on employers. As a result, they may now be liable for injury to persons living near the workplace, and not just persons employed within it, as in Margereson v J W Roberts; Hancock v J W Roberts [1996].8
It is clear that ‘reasonable foreseeability’ does not mean that the defendant must foresee the precise way in which the accident occurs. Consequently, the court can impose liability even when the nature of the accident is unusual, so long as they feel that a risk existed, of which the employer should have been aware. This is illustrated in decisions such as Hadlow v Peterborough Borough Council [2011].9
In this case, the claimant, a teacher at a secure unit for disruptive women, was left alone in a room with potentially dangerous students. She was actually injured trying to get out of the room quickly, when she tripped over a chair – an event that had not really been foreseen by the defendant. However, the defendants were still liable because the risk arose from their failure to ensure that the claimant was accompanied at all times. In effect, the court felt that this was a risk that the defendant should have foreseen.
We can see that the concept of ‘reasonable foreseeabilty’ is a very flexible one, which has led to the courts being able to impose their own idea of liability on the defendants. The fact that, in most employment cases, the employer is covered by insurance is arguably a factor in leading the courts to increasingly widen the limits of liability, so as to provide a remedy for employees injured at work. It is the role of policy that is clearly the most important factor here.
Reasonably practicable
The concept of what is ‘reasonably practicable’ builds on the concept of ‘reasonably foreseeability’, insofar as the latter determines whether or not there is a risk in the first place. As such, reasonable foreseeability is integral to the definition of ‘reasonably practicable’, as made clear by Lord Dyson in Baker v Quantum [2011].10
The main difference between the terms is that once a risk is ascertained, the employer must determine what the cost involves – in money, time or effort – required to deal with the risk, as made clear in Edward v NCB.11
This inevitably means that the employer must be aware of the risk, and must consider that it is worth dealing with in the first place. In this respect, he must prove, on the balance of probabilities, that the risk was not disproportionate to the efforts he made to control it, if any attempt was made at all.
The courts have long accepted that the risk must be a ‘material’ risk, as made clear in R v Porter [2008]12
and, more recently, by Lord Hope in R v Chargot [2008].13
Indeed, this is the criterion that the HSE will use in determining whether to charge a fee to an employer in respect of any intervention it feels it needs to make.
However, the tendency is for the courts to argue that the occurrence of an accident shifts the burden on to the defendant to prove that they did everything that was ‘reasonably practicable’, as can be seen in Chargot. This tends to mean that liability becomes ‘result-based’ and, as such, the risk is determined by the occurrence of the accident, which puts the defendant in the difficult position of trying to argue that it was not foreseeable.
The impact of this approach can be seen in the recent decisions in Tangerine Confectionery Ltd and Veolia v The Queen [2011]. In the case of Veolia, for example, the firm was held liable for the death of an employee picking litter by the roadside, even though the main cause of the accident was negligent driving by a third party.14
Under the subordinate regulations of the HSWA, the term ‘reasonably practical’ may be used to determine both civil and criminal liability. In civil liability, the most recent decision – Baker v Quantum Clothing – suggested that any statutory duty should be based on the common-law concept of ‘reasonable foreseeability’
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However, the tendency for civil-law courts to want to find a remedy for the claimant has sometimes led to them imposing a stricter interpretation of the relevant statute. This can be seen in the seminal case of Stark v Post Office [2000],15 in respect of the requirement to maintain work equipment in ‘efficient working order’ by virtue of reg.6 of the Provision and Use of Work Equipment Regulations 1992
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In the recent Löfstedt Report, it was proposed that those regulations imposing strict liability should be replaced by ones based on the concept of ‘reasonably practicable’.16 If this proposal is implemented, it seems likely that the courts will move away from a strict-liability approach to a more fault-based approach, along the lines of Baker.
In recent times the courts have taken a rather strict approach under the HSWA, but such an approach is not necessarily taken in relation to criminal liability under the Act’s subordinate regulations. Indeed, the failure of the prosecution in R v Nelson Group Services (Maintenance) Ltd17 showed that the courts are unwilling to convict an employer when he has done everything reasonably practicable to avoid the risk.
It can be seen that when imposing criminal liability the courts do sometimes take into consideration the reasonable expectations of society. It should be noted, too, that the HSE did not take a criminal case following the events in Stark v Post Office, and it is clear that there are many more civil actions started than criminal actions arising from the same events.
The HSE only prosecutes about 1000 cases a year, some of which do not involve injury to employees. On the other hand, there were nearly 78,000 employer-liability claims in 2009/10, which suggests that very few accidents lead to criminal action being taken against the employer.18
At this point it might be useful to note the impact of the Corporate Manslaughter and Corporate Homicide Act 2007. This imposes liability on the employer if the health and safety management system is so poor that it constitutes evidence of a breach of its duty to take reasonable care for the safety of its employees. Moreover, the breach of the duty of care must be the cause of the accident.
Under the HSWA, the accident itself need not be foreseeable, only the risk – a narrower requirement than under the Corporate Manslaughter and Corporate Homicide Act. I would suggest that it may be very difficult to distinguish between foreseeability of an accident and foreseeability of risk. However, as yet, only one case taken under the Act has reached a conclusion, so it is not yet possible to see what the policy of the courts will be in this area of law.
Summary
The concepts of ‘reasonably practicable’ and reasonably foreseeable’ are essentially the same. Indeed, the concept of what is ‘reasonably practicable’ is actually built on the underlying concept of what is ‘reasonably foreseeable’, insofar as the latter determines both the element of the risk and the appropriateness of the response. The underlying common factor here is the term ‘reasonable’, which is central to both legal concepts.
In reality, the courts determine what is ‘reasonable’ on the basis of what they think is acceptable practice, given the social expectations of the time. This is effectively a policy decision, which allows the courts to change the law as they feel fits the specific situation of the case. It is therefore not surprising to find that the concepts of ‘reasonably practicable’ and ‘reasonably foreseeable’ are both quite fluid and susceptible to different interpretations, depending on the circumstances of the case involved.
One factor of real interest is how the nature of liability in the criminal and civil area has been subject to change. In criminal law, the tendency has been for a greater move to stricter liability, especially under the HSWA, as is evident in cases like Chargot and Veolia, where we can see a move to result-based liability. This move may reflect an awareness of a greater public unwillingness to accept workplace deaths as a normal consequence of going to work.
In civil law, we have long been used to a strict interpretation of liability, driven by the desire to provide a remedy for the claimant. However, the recent decision in Baker has shifted the position towards fault-based liability, and this approach now appears to be supported by the recommendation in the Löfstedt Report.
Ultimately, the decisions of the courts are determined by an appreciation of the effect of their decision, on the public attitude to liability for accidents, and the rights of the injured party to be able to claim compensation. In this respect, this policy-driven approach is probably the main determinant of the difference between approaches to criminal and civil liability, rather than any real difference between the terms ‘reasonably practicable’ and ‘reasonably foreseeable’ themselves.
References
1 (1937) 3 All ER 628
2 (2006) EWCA Crim 1156
3 Tomkins, N (2010): ‘First Principles in Employer Liability’, in Journal of Personal Injury Law (2010) (3), pp131-138
4 (1968) 1 WLR 1776
5 (1951) 1 All ER 42, HL
6 Journal of Personal Injury Law (1998), p320
7 (1995) IRLR 35
8 (1996) EWCA Civ 1316
9 (2011) EWCA Civ 1329
10 (2011) UKSC 17, para 119
11 (1949) 1 All ER 743, CA
12 (2008) EWCA Crim 127
13 (2008) UKHL 73
14 (2011) EWCA Crim 2015
15 (2000) ICR 1013
16 Löfstedt, R (2011): Reclaiming health and safety for all: An independent review of health and safety legislation, (chapter 9), DWP
17 (1999) IRLR 646
18 Löfstedt, R (2011) – chapter 8, para 25
QUESTIONS
1 Civil law uses the concept of:
a. Reasonably practicable
b. Reasonably useful
c. Reasonably foreseeable
d. Reasonably easily
2 The main civil action in respect of an injury at work is taken by:
a. Tort of negligence
b. Tort of trespass
c. Tort of nuisance
d. Tort of defamation
3 Which concept is central to the HSWA:
a. Reasonably easily
b. Reasonably practicable
c. Reasonably foreseeable
d. Reasonably useful
4 Criminal liability is about protecting the public and, in its deterrent processes, can impose penalties such as:
a. Fines
b. Disqualification
c. Imprisonment
d. Payment of compensation
5 Reasonably foreseeable consists of several factors, which include:
a. Likelihood of an injury occurring
b. The severity of an outcome of an occurrence
c. The size of compensation that may be payable
d. The proportionality of taking action to deal with a problem
6 Liability for psychiatric illness caused by poor management was highlighted in the case of:
a. Walker v Newcastle United
b. Walker v Northumberland County Council
c. Hopper v Leicester City Council
d. Stroller v Coventry City Council
7 Courts generally accept that a risk must be of a material nature. This is recognised in the following cases:
a. Armstrong v British Coal Corporation (1998)
b. R v Porter (2007)
c. Hadlow v Peterborough Borough Council (2011)
d. R v Chargot (2008)
8 In 2009/10 there were approximately 1000 HSE prosecutions, but liability claims amounted to:
a. 5600
b. 24,000
c. 78,000
d. 1,621,000
9 The Löfstedt Report recommends:
a. Result-based liability
b. Fault-based liability
c. Remedies for claimants are priority
d. Stricter liability
10 ‘Reasonably foreseeable’ is integral to the definition of ‘reasonably practicable’. This was explained by Lord Dyson in:
a. Baker v Quantum (2011)
b. Wilsons & Clyde Coal Co Ltd v English (1937)
c. R v HTM Ltd (2006)
d. Margereson v J W Roberts (1996)
Answers:
1. c
2. a
3. b
4. a, b, c
5. a, b, d
6. b
7. b, d
8. c
9. b
10. a
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