[0:00]Hello and welcome to the second video in IOS's Health and Safety Fundamentals series, reasonable judgement. I'm Duncan Spencer, Head of Advice and Practice here at IOS.
[0:11]Reasonable judgement is the foundation of decision making when using reasonable foresight to predict risk or reasonable practicability when deciding how far risk should be controlled.
[0:25]Reasonable foresight and reasonable practicability are the next videos in this series. This video focuses on the connecting concept of reasonableness.
[0:36]What is it? How can it be argued? How does it help the occupational health and safety professional?
[0:43]Before we continue, it is worthwhile pointing out that reasonable foresight and reasonable practicability are legal tests in British law.
[0:54]Some other countries also employ them, but many do not. Even if your country doesn't recognize them as formal legal tests, as concepts, they can be very useful to all occupational health and safety professionals, wherever they are practicing their craft around the world.
[1:08]I know this to be true from first firsthand experience of training these ideas in countries where these concepts don't have legal status.
[1:17]Reasonable foresight helps us to focus our attention on significant risk and reasonable practicability is a judgment of when to stop adding further controls.
[1:27]A point where the risk is believed to be adequately controlled. The legal origin of reasonableness in the UK owes much to the arguments made in civil law, the law of tort.
[1:39]There are now many cases that examine this concept, but here are a few of the ones that through the years have advanced our thinking.
[1:48]Vaughan versus Menlove in 1837. A reasonable person was defined as being an individual who proceeds with such reasonable caution as a prudent man would have done under such circumstances.
[2:03]Blyth versus Birmingham Waterworks Company, 1856. Reasonableness was discussed in terms of individuals meeting expected standards, and if they failed to do so, they would be found negligent.
[2:16]Donaghue versus Stevenson, 1932, introduced the neighbor principle, which extended the duty of care, so what was reasonable could now be examined in non-contractual arrangements too.
[2:30]Farndon versus Harcourt-Rivington in 1932, clarified that people must guard against reasonable possibilities, but they are not bound to guard against fantastic possibilities.
[2:44]If it is too unforeseeable to anticipate, if it is bizarre or truly unpredictable, it was held that the defendant had not breached their duty of care.
[2:53]Hall versus Brooklands Auto Racing Club, 1933. The most quoted description of the reasonable person.
[3:00]Reasonable is that which the man on the Clapham omnibus regarded as being reasonable. In other words, what would the average person going to work on the bus say when presented with the facts of this case?
[3:14]In modern terms, asking what your peers would say is reasonable. Wells versus Cooper in 1958.
[3:23]This ruling gave further clarification to the test of reasonableness as an objective standard and further stated that it does not excuse the characteristic weaknesses of the defendant.
[3:35]In this case, it was found that a householder who builds something themselves must not fall below the standard to be expected of a reasonably competent tradesperson doing the same job.
[3:47]The common threads that run through cases like these are: Firstly, consideration of who owes who else a duty of care and why?
[3:56]Secondly, benchmarking the actions of individuals against other similar people.
[4:02]And lastly, reasonableness does not include the fanciful or bizarre.
[4:08]The benchmarking point is particularly interesting. This is where competency is considered. In the first video in this series, we pointed out that competency is not a binary concept, but rather a continuum that may run from basic understanding at one side to being a true expert on the other.
[4:26]A person will move along the continuum as their competency improves. Comparing where somebody is on the continuum could be problematical. It's helpful if we impose some categories.
[4:40]A public category. We should know what the public knows. What is known to be general knowledge.
[4:47]Notice, this isn't about common sense, it's more precise than that. What can the general public be expected to know?
[4:55]The occupational health and safety professional should know at least as much. What can the public predict will happen to people walking over a tiled entrance to a building when it's snowing or it's wet outside?
[5:08]Obviously, it will get wet and slippery and people may fall unless it's kept dry. The technical category.
[5:14]We should know what others like us should know. This is where the public are not sufficiently competent to make a reasonable judgment.
[5:25]The public may be able to predict that pedestrians crossing a goods yard or construction site could be run over, but they would not understand traffic control systems or the duties of a bondsman.
[5:37]But warehouse transport managers or construction site managers would be expected to have this competency, the benchmark is different. The expert category.
[5:48]What the experts know. This category reaches beyond the levels of competency most would be required to have.
[5:57]A supermarket may use laser equipment to read barcodes. They would be expected to know that lasers are potentially harmful to the eyes of employees and customers.
[6:05]So a supermarket would ask the manufacturer for evidence that they had met build standards and designed out this risk.
[6:15]The supermarket is in the technical category, benchmarked with other supermarkets, and in relative terms, the manufacturer is the expert needing to understand design standards.
[6:28]As covered in the first video of the series, competency is not static. Every individual develops greater competency over time.
[6:37]When relevant, the courts will take a view of the collective competency of those that contributed to a decision.
[6:45]The court would need to satisfy itself that sufficient competency was applied to make a sound decision and in similar circumstances, it's what other similarly competent people would have decided.
[6:58]Note here that there is safety in numbers, involving stakeholders in the decision making, strengthens the argument that competency has been applied in the making of a reasonable judgment.
[7:10]That all angles have been considered. For example, involving workers, supervisors, line managers, and experts in a risk assessment, and in the decisions regarding proportionate risk control, it provides a stronger case that the risk was understood and appropriate controls have been identified.
[7:30]In summary, reasonable judgment is founded on the application of an individual's competency or better still the collective competency of a group.
[7:44]Reasonable judgment may be tested by benchmarking competency against the standards and common practice held by other similar individuals or organizations.
[7:55]It is about behaving or taking actions in a way a reasonable person would be expected to have done in similar circumstances.
[8:05]In our next video, we will build on our understanding of competency and how it supports reasonable judgment and consider reasonable foreseeability in more detail.
[8:16]To become a member of IOS and for more information about occupational health and safety topics, please visit IOSH.com.
