‘Reasonably practicable’ is enshrined in the ILO’s Occupational Safety and Health Convention No.155. Article 4, Clause 2 of this convention provides that the aim of national policy on occupational safety, occupational health and the working environment "shall be to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment.”94
OHS legislation in all Australian jurisdictions other than Qld (where an effectively similar standard is expressed as ‘reasonable precautions’) and in the UK, Singapore and other common law countries, provide for duties of care to be subject to, or subject to a defence relating to, the duty holder meeting the duty so far as is ‘reasonably practicable’.95 The inclusion of the test of reasonably practicable is often expressed as the standard of conduct or a limitation on the otherwise unlimited nature of the duty to ensure health and safety. In this report, we refer to it as the standard.
The OHS Acts of Vic, Western Australia (WA) and both Territories contain a definition of reasonably practicable. While the content of the definitions is largely consistent, two approaches have been taken.
The Vic and WA Acts require that, in determining what is reasonably practicable to address a duty of care, regard must be had to a number of matters, including:96
the state of knowledge about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
the availability and suitability of ways to eliminate or reduce the hazard or risk; and
the cost of eliminating or reducing the hazard or risk.
The tests used in the NT and ACT Acts to determine what reasonably practicable means are similar, but reasonably practicable is defined in terms of applying risk management processes, since both these Acts have incorporated risk management as an element of the primary duty.97
The IC advocated the application of ‘reasonably practicable’ “to all mandated requirements in OHS legislation”.98 Recent OHS reviews have also supported the continued use of reasonably practicable as a suitable qualification for the primary duties of care, and have recommended the inclusion of guidance on interpretation99.
An additional factor that has been considered in determining the extent of a duty owed is that of control. The Victorian Occupational Health and Safety Act Review, conducted by Chris Maxwell QC (Maxwell Review), proposed that control should be added as a factor to be considered in determining what is practicable100. The NSW Inquiry into the Review of the Occupational Health and Safety Act 2000, conducted by the Hon Paul Stein AM, QC (Stein Inquiry),supported Maxwell’s recommendation, stating that:
“The consideration of the degree of control a duty holder has in particular circumstances enables the courts to assign responsibility appropriately where there are multiple duty holders. Arguably, the concept of ‘reasonably practicable’ includes considerations of control.’”101
The Victorian Report on the Occupational Health and Safety Act 2004 Administrative Review (Vic Administrative Review) did not support the proposal to include ‘control’ as a factor in the reasonably practicable test, arguing that the reasonably practicable test and the issue of ‘control’ deal with different concepts.102 Reasonably practicable focuses on managing OHS risks; ‘control’ on the other hand deals with the status of the duty holder. Including ‘control’ in the definition of ‘reasonably practicable’ may have the undesirable consequence of shifting the focus of the test from risk control to a deliberation about whether a duty exists at all.103
Control has not been included in the test for reasonably practicable in any Australian OHS Acts.
