Implications for Designers of the Engineers Australia Safety Case Guideline (3rd Edition) Richard Robinson R2A Due Diligence Engineers

Transcription

1 Implications for Designers of the Engineers Australia Safety Case Guideline (3rd Edition) Richard Robinson R2A Due Diligence Engineers Earthing, Bonding & Surge Protection Conference, Brisbane 2013 r2a DUE DILIGENCE ENGINEERS

2 Draft Safety Case Guideline (3rd Edition) Extends the precautionary common law safety case concept of the two earlier editions (2002 and 2007) to consider how the safety case can be used as a tool to positively demonstrate safety due diligence consistent with the provisions of the model Work Health and Safety (WHS) legislation that has commenced all Australian jurisdictions except Western Australia and Victoria.

3 System of Law in Australia There are two basic kinds of laws in Australia: statute law, which is made by a Parliament consisting of democratically elected members, and common law, which is law made by judges when deciding cases. Statute law (also called legislation) may be made by the Commonwealth Parliament, or by the Parliament of a State or Territory.

4 High Court of Australia The High Court of Australia is the highest court in the Australian judicial system. The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.

5 System of Law in Australia In Australia court cases are conducted under the adversarial system in which the court is asked to adjudicate upon issues put forward by the parties upon evidence adduced by the parties. The presiding judge has no power of inquiry (the inquisitorial system ), unlike courts in parts of Europe

6 Due Diligence Due diligence has been a primary defence against the tort (or wrong) of negligence in the common law. In this context, what constitutes due diligence in Australian case law has been established in decisions of the High Court of Australia. The WHS act requires officers of PCBUs to positively demonstrate due diligence. This responsibility cannot be delegated.

7 Model WHS Act P"Q+5,5'1$)"0%+$*' Qld WHS Act Page 48 (3) A category 1 offence is a crime.

8 Hazard vs Precaution Hazard focussed Technical risk targets Future uncertainty Decision re hazard Unwanted Event/s Judgement Time Future uncertainty Safety critical Judicial Scrutiny Precaution focussed

9 Reasonable in Court MAGNITUDE OF RISK PROBABILITY OF OCCURANCE SEVERITY OF HARM EXPENSE DIFFICULTY AND INCONVENIENCE UTILITY OF CONDUCT (adapted from Sappideen and Stillman, 1995)

10 Common law approach (precaution based and criticality driven) Hazard identification (Foreseeability) Target risk approach (hazard based and risk driven) Preventability Identify all practicable precautions for each critical hazard following the hierarchy of controls Reasonableness Determine which practicable precautions are reasonable based on the High Court established balance (disproportionality) Criticality Establish critical hazards Risk Management of downside (negative or pure) risk Hazard analysis and risk calculation process to determine the nature of risk and the level of risk (inherently unrepeatable) Selected risk criteria terms of reference against which the significance of a risk is evaluated (inherently subjective) 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 SFAIRP ALARP Risk mitigation and management options process to modify risk. (may not follow the hierarchy of controls) Monitoring and Review (Quality assurance) Due Diligence

11 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

12 Carveth Read (1898) It is better to be vaguely right than exactly wrong.

13 EG-0 Target Risk Levels Table 4-1: Target individual fatality probability limits Probability of single fatality Risk classification for public death High or 10-4 Intolerable risk Intermediate or ALARA Region Low or 10-6 Tolerable risk Resulting implication for risk treatment Must prevent occurrence regardless of costs. Must minimise occurrence unless risk reduction is impractical and costs are grossly disproportionate to safety gained. Risk generally acceptable, however, risk treatment may be applied if the cost is low and/or a normally expected practice.

14 EG-0 Target Risk Levels Figure 4-4: Societal F-N risk limits

15 EG-0: Caveats» Intolerable Region The risk profile must be reduced.» ALARA Region Reduce the risk profile whenever possible, and only accept the residual risk on the basis of a risk cost benefit analysis (RCBA) (see Appendix F). The use of the ALARA principle (or ALARP) is clearly intended to form a key part of the Due Diligence process embodied in this Guide. The ALARM principle that requires a designer and asset owner to reduce the risk profile whenever possible provides a consistent yet practical means for managing earthing system related risk.» Low or tolerable Region Risk generally acceptable, however, risk treatment may be applied if the cost is low and/or a normally expected practice.

16 Legal Status of Standards Engineers should remember that in the eyes of the court, in the absence of any legislative or contractual requirement, an Australian Standard amounts only to an expert opinion about usual or recommended practice. Also, that in the performance of any design, reliance on an Australian Standard does not relieve an engineer from a duty to exercise his or her skill and expertise. Paul Wentworth, Partner, Minter Ellison (28 March 2011) AS/NZS 7000:legal status of standards and relevance to professional liability

17 Land Use Planning Calculated 10-6 pa risk contour Credible worst case consequence contour Normal building standards apply Exclusion zone Major hazard facility Increasing precautions No special precautions needed Target risk level approach Precautionary approach

18 Safe In reality, to be safe means to be free from harm. In court, safe means that, despite something apparently unsafe having happened, due diligence has been demonstrated. In engineering terms this means that to be safe requires managing the laws of nature in a way that is consistent with the laws of man, in that order.

19 Due Diligence Approach A completeness argument as to why all credible critical safety issues to all affected parties have been identified, A argument as to why all practicable precautions for each credible critical issue has been identified, An argument as to which practicable precautions are reasonable consistent with decisions of the High Court of Australia, and, The establishment of a safety quality assurance regime to confirm that all reasonably practicable precautions are maintained on an continuing basis.

20 Implications for Designers and Engineers Exclusive reliance on the use of target levels of risk (tolerable or acceptable) or safety is likely to demonstrate beyond reasonable doubt proof of recklessness under the provisions of the model act. This applies to land use planning guidelines such as those used in NSW and other jurisdictions, and a number of standards like EG(0), The Power System Earthing Guide.

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23 Legal framework Compliance is mandatory Acts Voluntary guidance material Regulations Codes of Practice Standards Can be called up by an Act or regulation Industry Standards/ Guidance Notes 23

24 R2A s Approach ( Y Model) Credible, critical issues Precautionary options Disproportionality decision making engine Barrier implementation QA system 24

25 As presented by Barry Sherriff, Partner, Norton Rose for Engineers Australia in Queensland, 28 March 2011 Duties of care - the need to work together in safety Sub-contractors Contractors Employees Designers etc PCBU Suppliers Public Customers Occupiers 10 25

26 Victorian Powerline Bushfire Safety Taskforce TBD Design controls incl. conductor spacing, cleared space etc External threat scenarios, trees, wind, lightning etc Asset management incl. inspection, testing & maintenance Equipment failure threat scenario Fault prevention Fault protection Electrical operational* LOC Fuel controls eg bare earth or fire resistant vegetation at pole base Other sources Loss of Control Ignition energy present amongst environmental fuel Near miss (no escalating fire) Other fire development & escalation mitigations (outside the scope of the Taskforce) Early evacuation, safe refuges etc Black or Ash Day Fire Deaths 26

27 Facts in Court What is a fact? Is it what actually happened between Sensible and Smart? Most emphatically not. At best, it is only what the trial court - the trial judge or jury - thinks happened. What the trial court thinks happened may, however, be hopelessly incorrect. But that does not matter - legally speaking. 27