Engineered Safety Special Interest Group:
presentation evening 7 May 2014
FROM THE CHAIR
The Group extends its utmost gratitude to those who donate their time
and experience to the cause of furthering engineering discussions.
The views expressed in this presentation are those of the presenter.
(below) and are not necessarily shared by the Special Interest Group.
The group respects the right of all professionals to express their opinions
based on their training, experience and circumstances, all of which may
be different from those of others.
Richard M Robinson
BE BA FIEAust MSFPE HonFAMPI
PRESENTER:
of
R2A Due Diligence
Engineers, Victoria
Paradigms
Engineered Safety Group (SA)
“ALARP to SFAIRP: The tipping
point in the paradigm shift from
hazard to precaution based safety”
Richard Robinson
Director R2A Due Diligence Engineers
A paradigm is a universally
recognised knowledge system
that for a time provides model
problems and solutions to a
community of practitioners
(after Kuhn, 1970).
r2a
DUE DILIGENCE ENGINEERS
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SFAIRP
ALARP
The Rail Safety National Law and the model
Work Health and Safety Act both require
safety risk to be eliminated or minimised so
far as is reasonably practicable (SFAIRP).
SFAIRP requires a positive demonstration
of due diligence.
!
Most technical safety work is done in the
context of ensuring technical safety is as
low as reasonably practicable (ALARP).
!
ALARP is hazard based.
SFAIRP ≠ ALARP
SFAIRP is precaution based.
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Hazard vs Precaution
Reasonableness (after Sappideen and Stillman 1995)
Precaution focussed
Judicial
Scrutiny
Future Uncertainty
Safety critical
Judgement
Unwanted Event/s
Decision
Time
Future Uncertainty
Technical
risk
targets
MAGNITUDE OF
RISK
EXPENSE
PROBABILITY OF
OCCURANCE
DIFFICULTY AND
INCONVENIENCE
SEVERITY OF HARM
UTILITY OF CONDUCT
Hazard focussed
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Common law approach
(precaution based and criticality driven)
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Target risk approach
(hazard based and risk driven)
Hazard identification
(Foreseeability)
Hazard analysis and risk calculation
process to determine the nature of risk
and the level of risk
(inherently unrepeatable)
Preventability
Identify all practicable
precautions for each hazard
following the hierarchy of
controls
Reasonableness
Determine which practicable
precautions are reasonable
based on the High Court
established balance
Selected risk criteria
terms of reference against which the
significance of a risk is evaluated
(inherently subjective)
Risk Management
of downside (negative or pure) risk
Compare against criteria
process of comparing the results of risk
analysis with risk criteria to determine whether
the risk and/or its magnitude is acceptable
(may eliminate further consideration of
acceptable or tolerable risks)
Implementation
of reasonably practicable
precautions
Risk mitigation and management options
process to modify risk.
(may not follow the hierarchy of controls)
Monitoring and Review
(Quality assurance)
Due Diligence
ISO 31000 vs Due Diligence
AS/NZS ISO 31000
Establish the context!
Risk assessment (hazard
based):!
! (Hazard) risk identification!
! (Hazard) risk analysis!
! (Hazard) risk evaluation*!
Risk treatment!
Due Diligence
Establish the context!
Risk assessment (precaution
based):!
! Identify credible, critical issues!
! Identify precautionary options!
! Risk-effort balance evaluation!
Risk action (treatment)
The point is to ensure that all reasonable practicable precautions are in
place, not to achieve an indefensible target level of risk or safety.
* From the definition in the standard:
2.24 risk evaluation
process of comparing the results of risk analysis (2.21) with risk criteria (2.22) to determine
whether the risk (2.1) and/or its magnitude is acceptable or tolerable
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Due Diligence
Due diligence is a legal concept that seems
to manifest itself in at least two ways:
!
1. As a defence against negligence in
common (case) law, and
!
2. In statute law, especially for
investment advice and, more recently,
OHS matters.
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Professor Ben Ale (Delft University)
The UK is traditionally regulated by a
common law system, which is based on the
principle that what is not explicitly
allowed is forbidden, unless it can be
justified, where necessary, in court (Ale
2005). The legal responsibility for the
safety of workers and the public is placed
on whoever controls the activity.
The Common Law
According to Tony Robinson (Baldric):
!
The common law particularly flows from King
Henry II (circa 1266) and a desire to extend
the influence of the King’s justice by sending
Lord Judges on circuits, consistently applying
the ‘common’ laws observed in the various
feudal fiefdoms, thereby superseding the
justice systems of the local aristocracy and
enhancing the power of the king.
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Negligence
The case that launched the negligence tide is
generally recognised as Donaghue vs Stevenson
(1932). Essentially this tested the responsibility of a
drinks manufacturer for a stomach ache resulting
from a late discovered decomposed snail in an
opaque soft drink bottle, purchased by one of two
friends to share. Until that time, the liability for a
bad product rested with the contractual arrangement
between the seller and buyer, not a third party friend
with whom the drink was shared and who fell ill.
See http://www.bailii.org/uk/cases/UKHL/1932/100.html viewed 17 July 2013
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Donoghue v. Stevenson (1932)
M'ALISTER or DONOGHUE (Pauper) Appellant
v. STEVENSON. Respondent
-------------
Lords Present
Lord Buckmaster
Lord Atkin
Lord Tomlin
Lord Thankerton
Lord Macmillan
Judgment
Due Diligence
Interestingly, it was a split decision by the 5
judges in the UK House of Lords as to whether or
not the case could proceed at all since the
potential liability to the manufacturer lay outside
existing buyer-seller contract. The minority was
concerned that a finding for the plaintiff would
launch an uncontrolled avalanche of negligence
claims in common law jurisdictions, a concern
that has pretty much eventuated.
See http://www.bailii.org/uk/cases/UKHL/1932/100.html viewed 17 July 2013
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Due Diligence
Lord Atkin
The majority decision favoured to adopt the
golden rule of most major philosophies and
religions. This is usually expressed in the
Christian tradition, as: do unto others as you
would have done unto you. That is, it was
felt that the soft drink manufacturer owed a
duty of care to any reasonably foreseeable
consumer, not just the one who purchased
the soft drink.
The rule that you are to love your neighbour becomes
in law you must not injure your neighbour; and the
lawyer's question "Who is my neighbour?" receives a
restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who
then in law is my neighbour? The answer seems to be
persons who are so closely and directly affected by my
act that I ought reasonably to have them in
contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.
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Australia Act(s) 1986
Due Diligence
Possibly the most curious aspect of the case
was that it apparently never actually came to
court as both the plaintiff, Donaghue, and
the defendant, Stevenson, had died whilst all
the procedural matters (whether the friend
could sue outside the buyer-seller contract)
matters were considered. The snail was
never proved to have legal existence.
These Acts eliminated the remaining ;es between the legislature and judiciary of Australia and their counterparts in the United Kingdom and makes the High Court paramount for the common (case) law in Australia.
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HIGH COURT OF AUSTRALIA
HIGH COURT OF AUSTRALIA
SHIPPING CORPORATION OF INDIA LTD. v. GAMLEN CHEMICAL CO. A/ASIA. PTY. LTD. [1980] HCA 51; (1980) 147 CLR 142
SHIPPING CORPORATION OF INDIA LTD. v. GAMLEN CHEMICAL CO. A/ASIA. PTY. LTD. [1980] HCA 51; (1980) 147 CLR 142
STEPHEN J. This appeal involves
interpretation of the Hague Rules. During
heavy weather in the Great Australian Bight,
the severity of which was unusual but not
unforeseeable, a number of drums of cleaning
solvent stowed in a ship's hold broke adrift,
were damaged and their contents lost. The
means of securing them in place in the hold
had been inadequate.
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HAGUE RULES:
Article IV Rights and Immunities 1. Neither the carrier nor the ship shall be liable for loss or
damage arising or resulting from unseaworthiness unless
caused by want of due diligence on the part of the carrier
to make the ship seaworthy, and to secure that the ship is
properly manned, equipped and supplied...
!
Whenever loss or damage has resulted from
unseaworthiness, the burden of proving the exercise of
due diligence shall be on the carrier or other person
claiming exemption under the section.
(Bolding by R2A).
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HIGH COURT OF AUSTRALIA
Due Diligence
SHIPPING CORPORATION OF INDIA LTD. v. GAMLEN CHEMICAL CO. A/ASIA. PTY. LTD. [1980] HCA 51; (1980) 147 CLR 142
Reynolds J.A. summed up the conclusion of the Court (of
Appeal of the Supreme Court of NSW) in the following words:
!
"Loss or damage does not arise or result from perils of the
sea where negligence is a concurrent cause. Where
negligence allows or facilitates the perils of the sea to inflict
damage on cargo, then in all relevant respects the loss or
damage arises or results from the negligence. The perils of
the sea must be guarded against by the use of due care."
!
The judges of the High Court (Gibbs, Stephen, Mason, Aickin,
and Wilson) unanimously dismissed an appeal to the High
Court and supported the view of the NSW Court of Appeal
summarised by Reynolds above.
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Where it is possible to guard against a
foreseeable risk, which, though perhaps not
great, nevertheless cannot be called remote
or fanciful, by adopting a means, which
involves little difficulty or expense, the
failure to adopt such means will in general
be negligent.
Turner v. The State of South Australia (1982) (High Court of Australia
before Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ).
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Model WHS Act history
Due Diligence
The Worklace Relations Ministers’ Council (WRMC) at its
81st meeting agreed to a framework for uniform OHS laws. In Australia due diligence has been a
defence against common law negligence.
Now, with the commencement of the model
WHS Act in all jurisdictions except Victoria
and Western Australia, due diligence is a
statutory defence against criminal breach of
of that legislation.
Attendees included:
• Deputy Prime Minister the Hon Julia Gillard MP, Minister for Employment and Workplace
Relations (Cth)
• The Hon Joseph Tripodi MP, Minister for Finance (NSW)
• The Hon Tim Holding MP, Minister for WorkCover (VIC)
• The Hon Cameron Dick MP, Minister for Industrial Relations (QLD)
• The Hon Paul Caica MP, Minister for Industrial Relations (SA)
• The Hon Troy Buswell MLA, Minister for Commerce (WA)
• The Hon Lisa Singh MP, Minister for Workplace Relations (TAS)
• Ms Liesl Centenera, proxy for Mr John Hargreaves MLA, Minister for Industrial Relations (ACT)
• Ms Laurene Hull, proxy for the Hon Robert Knight MLA, Minister for Public Employment (NT)
Apologies:
• Mr John Hargreaves MLA, Minister for Industrial Relations (ACT)
• The Hon Robert Knight MLA, Minister for Public Employment (NT)
• The Hon John Hatzistergos MLC, Minister for Industrial Relations (NSW)
• The Hon Martin Pakula MP, Minister for Industrial Relations (VIC)
• The Hon Kate Wilkinson MP, Minister of Labour (NZ)
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The model act is summarised in Chapter 16, page 171
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The Model WHS Act
Originally based on common law due diligence
Recommendations 88 & 96 (amongst others)
of the OHS Review was not agreed. Instead
the WRMC agreed that:
Commenced in all
jurisdictions except
Western Australia and
Victoria.
Case law should be relied upon to define
‘due diligence’ and
The concept of ‘reasonably necessary’
should be replaced with ‘reasonably
practicable’.
Communiqué from Australian, State, Territory and New Zealand Workplace Rela;ons Ministers’ Council (18 May 2009). 26
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EXPLANATORY MEMORANDUM – MODEL
WORK HEALTH AND SAFETY BILL (100 pages)
Due Diligence
‘(5) In this section, due diligence includes taking reasonable steps—
!
(a) to acquire and keep up-to-date knowledge of electrical safety matters; and
(b) to gain an understanding of the nature of the operations of the business or undertaking of the
person conducting the business or undertaking and generally of the hazards and risks
associated with those operations; and
(c) to ensure that the person conducting the business or undertaking has available for use, and uses,
appropriate resources and processes to eliminate or minimise risks to electrical safety from
work carried out as part of the conduct of the business or undertaking; and
(d) to ensure that the person conducting the business or undertaking has appropriate processes for
receiving and considering information regarding incidents, hazards and risks and responding in
a timely way to that information; and
(e) to ensure that the person conducting the business or undertaking has, and implements,
processes for complying with any duty of the person conducting the business or undertaking
under this Act; and
(f) to verify the provision and use of the resources and processes mentioned in paragraphs (c) to
(e).’.
Duty of officers
125. Subclause 27(5) contains a non-exhaustive
list of steps an officer must take to discharge their
duties under this provision, including acquiring and
keeping up-to-date knowledge of work health and
safety matters and ensuring the PCBU has, and
implements, processes for complying with any
duty or obligation the PCBU has under the Bill.
Bolding by R2A
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!
Page 228
2011 Act
Health & Safety Executive
Worksafe Australia
There are two elements to what is ‘reasonably
practicable’. A duty-holder must first consider
what can be done - that is, what is possible in
the circumstances for ensuring health and
safety. They must then consider whether it is
reasonable, in the circumstances to do all that
is possible. This means that what can be done
should be done unless it is reasonable in the
circumstances for the duty-holder to do
something less.
You may come across it as SFAIRP (“so far as is
reasonably practicable”) or ALARP (“as low as
reasonably practicable”). SFAIRP is the term most often
used in the Health and Safety at Work etc Act and in
Regulations. ALARP is the term used by risk
specialists, and duty-holders are more likely to know it.
We use ALARP in this guidance. In HSE’s view, the two
terms are interchangeable except if you are drafting
formal legal documents when you must use the correct
legal phrase.
!
UK HSE’s document, ALARP “at a glance”
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Set the law aside?
Engineers often argue that, if you
set the law aside, the only way to
demonstrate due diligence is the
ALARP approach. This is simply
not a viable proposition. The laws
of man may not be ignored. Our
parliaments and courts necessarily
reject this.
Unintended consequences?
Rejection of the risk management standard (ISO 31000) approach as a competent method of
demonstrating safety due diligence in Australia, at
least of high consequence, low likelihood events. !
Rejection of number of well recognised technical
standards that encourage the use of risk targets
including the SIL (Safety Integrity Level) standard,
IEC 61508; the high voltage earthing standard
EG(0), QRA land use planning and others.
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Land Use Planning
Calculated 10-6
pa risk contour
Normal building
standards apply
Exclusion zone
Target risk level approach
Major
hazard
facility
Why SFAIRP?
Credible worst case
consequence contour
Increasing precautions
No special
precautions
needed
Precautionary approach
The point of the SFAIRP approach is to
demonstrate, that provided something is
not prohibitively dangerous that it ought
not to be done at all, that all reasonable
practicable precautions are in place for
foreseeable critical hazards. Essentially,
arguing over degrees of rareness for high
consequence outcomes pre-event is
simply indefensible, post-event.
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Precautionary approach is normal
The precautionary approach is very
output-focussed. It is invariably the
one adopted by the courts post
event. Precautions and mitigations
are implemented unless it is
unreasonable to do so.
!
And, it’s what we do in real life.