In effect, considering what is 'reasonably practicable' requires that a risk assessment be carried out. The existence of a well-documented and carefully considered risk assessment would go a long way towards supporting a case on what was and was not reasonably practicable. Neither risks nor costs remain the same forever and what is practicable or reasonably practicable will change with time – hence the need to keep risk assessments up to date5. Common law has evolved over hundreds of years as a result of the decisions of courts and judges.
Common principals or accepted standards fill the gaps where statute law has not supplied specific requirements. The accumulation of common law cases has resulted in a system of precedents, or decisions in previous cases, which are binding on future similar cases unless overruled by a higher court or by statute. A civil action can be initiated by an employee who has suffered injury or damage to health caused by their work. This may be based upon the law of negligence, i. e. where the employer has been in breach of the duty of care which he owes to the employee.
Being part of the common law, the law of negligence has evolved, and continues to evolve, by virtue of the decisions of the courts – Parliament has had virtually no role to play in its development. Civil actions may also be brought on the grounds of breach of statutory duty – it should be noted, however, that HSWA 1974 and most of the provisions in the Management of Health and Safety at Work Regulations 1999 do not confer a right of civil action, although the statutory duties owed by employers under HSWA 1974 have their equivalent obligations in common law.
Every member of our society is under a 'duty of care', i. e. to take reasonable care to avoid acts or omissions which they can reasonably foresee are likely to injure their neighbour. What is reasonable depends on the circumstances. Employers, such as ourselves, owe a duty of care not only to employees but also to such people as contractors, visitors, customers, and people on neighbouring property. In the case of the duty of care owed by employers to employees, it includes the duty to provide safe premises, a safe system of work, safe plant, equipment and tools; and safe fellow workers5.
Ensuring the employee's place of work is safe extends not just to tangible physical things like floors, doors, windows and means of access and egress, but also to environmental conditions like temperature and noise. An employer's duty is to ensure the employee is provided with such equipment, plant and materials as are adequate for the safe performance of the job and to introduce a system of inspection and maintenance6. Section 2(3) of the Health and Safety at Work etc.
Act 1974 requires that employers prepare in writing a statement of their general policy with respect to the health and safety at work of their employees; and the organisation and arrangements for carrying out that policy. It also requires that the statement be brought to he notice of all employees. As an employer we are required under the Employers' Liability (Compulsory Insurance) Act 1969 to take out and maintain an insurance policy with an authorised insurer against liability for bodily injury and disease sustained by our employees and arising out of and in the course of their employment.
The policy must provide a cover of at least i?? 5 million. The insurance company will issue a certificate of insurance and this must be displayed at each place of business for the information of employees. An inspector can request to see the certificate and also the policy itself. As an employer we are liable to persons injured by the wrongful acts of our employees, if such acts are committed in the course of their employment. Thus if an employee's careless driving of a forklift truck injures another employee, then as an employer we are likely to be liable.
This is known as vicarious liability (that we are legally liable for the negligence of our employees which they do in the course of their employment duties). There is no vicarious liability if the act is not committed in the course of employment – we are not likely to be held liable if one employee assaults another5. In conclusion, as an employer we need to be aware that as well as legislation that applies to all employers, there may also be specific legislation which applies to our company by virtue of the type of work activity being conducted.
We must then examine our work activity and determine which other regulations we need to follow, and ensure that we adhere to the practices set out in any ACoP's and Guidance Notes that accompany the Regulations. We must also ensure that we have carried out the adequate Risk Assessments to enable us to prove that the measures we have taken are 'practicable' or reasonably practicable' as the burden of proof rests with ourselves (the employer). As detailed above we have a duty of care to provide a safe working environment and safe plant and equipment.
Furthermore, we require a current Employers Liability Insurance, which must be displayed. Our Health and Safety Policy should be displayed in an area where all employees, contractor, visitors etc can easily view it (e. g. reception area). This policy should be revised every two years, or if there are any major changes to the working practices. It is my view that if we keep up to date with changes in any EC or UK legislation, as detailed in this report; and comply with HSE's guidance and advice that we should be able to meet our health and safety requirements.