Levels of statutory duty

There are three levels of statutory duty which form a hierarchy of duties. These levels are used extensively in health and safety statutory (criminal) law but have been defined by judges under common law. The three levels of duty are absolute, practicable and reasonably practicable. 

This is the highest level of duty and often occurs when the risk of injury is so high that injury is inevitable unless safety precautions are taken. It is a rare requirement regarding physical safeguards, although it was more common before 1992 when certain sections of the Factories Act 1961 were still in force. No assessment of risk is required but the duty is absolute and the employer has no choice but to undertake the duty. The verbs used in the Regulations are must and shall . 

Many of the health and safety management requirements contained in health and safety law place an absolute duty on the employer. The need for written safety policies and risk assessments when employee numbers rise above a basic threshold are examples of this. 

In other words, if the risk of injury is very small compared to the cost, time and effort required to reduce the risk, then no action is necessary. It is important to note that money, time and trouble must grossly outweigh not balance the risk. This duty requires judgement on the part of the employer (or his adviser) and clearly needs a risk assessment to be undertaken with conclusions noted. Continual monitoring is also required to ensure that risks do not increase. There are numerous examples of this level of duty, including the Manual Handling Operations Regulations and The Control of Substances Hazardous to Health. 

The term suitable and sufficient is used to define the scope and extent required for health and safety risk assessment and may be interpreted in a similar way to reasonably practicable. More information is given on this definition in Chapter 5. 

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Statutory duties give rise to criminal liability. There are three distinct levels of statutory duty. 

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