R2A Safety Due Diligence Process

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 law of nature in a way that is consistent with the laws of man and in that order.At R2A we have developed a set of routinely successful process to positively demonstrate safety due diligence consistent with the requirements of the model Work Health and Safety (WHS) legislation that has commenced in all Australian jurisdictions except, at the time of writing, Western Australia and Victoria.The R2A approach adopts a precautionary common law formulation for the demonstration of due diligence as a defence against negligence namely:

• 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 reasonable practicable precautions are maintained on an ongoing basis

This approach does not mean that bad things cant happen. It means (assuming the activity is not prohibitively dangerous such that it should not occur at all) that all reasonable practicable precautions for all foreseeable, critical hazards to all affected parties are in place, based on the balance of the significance of the risk vs the effort required to reduce it. This also means that risks should be eliminated or minimized so far as reasonable practicable.Such a position, based around the test of reasonably practicability arguable at a common law balance (the 50:50 tipping point), should provide superior safety outcomes for all whilst offering the best protection against criminal charges for responsible officers under the provisions of the model WHS Act.Over the years, R2A has tested this Safety Case approach with various legal counsels when consulting for clients. We recommend that readers do so with their own legal counsel before adopting this approach.