Chapter heading 1

RECOMMENDATION 6

‘Reasonably practicable’ should be defined in the model Act in a way which allows a duty holder to understand what is required to meet the standard.

Note: Our example clause is provided at paragraph 5.55.

RECOMMENDATION 7

The meaning and application of the standard of reasonably practicable should be explained in a code of practice or guidance material.

The issue of ‘control’

1. 
   An issue of some controversy in submissions and during consultation has been whether or not the level or extent of control able to be exercised by a duty holder over relevant matters should be:
   

• 
  a consideration in determining what is reasonably practicable;
  
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  included in the definition of reasonably practicable; and
  
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  defined.
  

1. 
   The issue of control as an element in duties of care, to determine the duty holder or the scope of the duty, was also the subject of quite divergent views. We consider this issue in Chapter 6 when we discuss the primary duty of care.
   
2. 
   Some submissions were concerned that including control as an element of reasonably practicable might limit the scope of the duties of care. We note, however, that the case law provides that control is relevant in determining what is reasonably practicable in the circumstances.¹²⁴
   
3. 
   As noted above, reasonably practicable represents what can reasonably be done in the circumstances. An inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything, or it is not reasonable to expect them to do so. It is in this way that control is at least implied as an element in determining what is reasonably practicable.
   
4. 
   A view was expressed in submissions that control should not be an element of the duty of care. A concern was that including it might focus the attention of those who might be duty holders on whether the duty of care is placed on them and whether it may be avoided by artificial arrangements. Some of those submissions, however, suggested that control would be appropriately placed as an element of determining what is reasonably practicable, as that would provide a focus on compliance and managing risk.
   
5. 
   There has been inconsistency in the interpretation and application by the courts of control as an element of a duty of care. However, there does not appear to have been inconsistency in the approach of the courts to considering the issue of control in determining what was reasonably practicable.
   
6. 
   We consider, on balance, that it is not necessary for control to be expressly included in the definition of reasonably practicable and recommend that it not be included. Control is an inherent element in determining what can reasonably be done in the circumstances. Making express reference to control in the definition of reasonably practicable may have lead to a focus on that issue, ahead of other factors noted in the definition.
   
7. 
   We recommend previously that the meaning and application of the standard of reasonably practicable be explained in a code of practice or guidance material. The relevance of control to determining what is reasonably practicable should be explained in that material.