27/2/18 27/2/18

Engineering As Law

Both law and engineering are practical rather than theoretical activities in the sense that their ultimate purpose is to change the state of the world rather than to merely understand it. The lawyers focus on social change whilst the engineers focus on physical change.It is the power to cause change that creates the ethical concerns. Knowing does not have a moral dimension, doing does. Mind you, just because you have the power to do something does not mean it ought to be done but conversely, without the power to do, you cannot choose.Generally for engineers, it must work, be useful and not harm others, that is, fit for purpose. The moral imperative arising form this approach for engineers generally articulated in Australia seems to be:

S/he who pays you is your client (the employer is the client for employee engineers)
Stick to your area of competence (don’t ignorantly take unreasonable chances with your client’s or employer’s interests)
No kickbacks (don’t be corrupt and defraud your client or their customers)
Be responsible for your own negligence (consulting engineers at least should have professional indemnity insurance)
Give credit where credit is due (don’t pinch other peoples ideas).

Overall, these represent a restatement of the principle of reciprocity, that is, how you would be expected to be treated in similar circumstances and therefore becomes a statement of moral law as it applies to engineers.

27/2/18 27/2/18

The Art of Communicating Engineering Judgement

Tim Procter shares his experience as a graduate engineer developing engineering judgement and his approach to communicating this knowledge to various stakeholders. This article was originally published at Engineering Education Australia.

As a graduate engineer (some years ago) moving from university to the workplace I was surprised to discover just how vast and varied engineering knowledge actually is. After completing an intensive degree and gaining what felt like a good understanding of engineering fundamentals, it came as something of a surprise to realise that becoming expert in just one engineering sub-sub-discipline could truly take a lifetime.

Science fiction legend, Arthur C. Clarke noted that any sufficiently advanced technology is indistinguishable from magic. To the qualified but inexperienced engineer that I was, a senior engineer discussing advanced engineering knowledge appeared quite the same; the outputs were comprehensible, but not their derivation. Such knowledge was generally referred to as demonstrating ‘engineering judgement’.

Engineering judgement is used when making a decision. It involves an engineer weighing up, in their own mind, the pros and cons of the potential courses of action being considered. This process may be formal, intuitive or deliberate or, in most cases, an intricate combination of the three.

As a graduate I regarded this engineering judgement with a sense of awe, as I considered the years of experience my seniors wielded when pronouncing how the engineered world should be. Surely, I thought, one day in the (distant) future my engineering judgement will arrive. And then I too will have the knowledge!

Oddly enough, I found personal development tends not to work this way. My engineering judgement gradually developed with my experience as I dealt with problems of greater complexity. I discovered that I understood the decision required, the options available, and the best course of action, but the act of explaining the decision was often more difficult than simply knowing the answer.

This knowing/telling paradox gives a clue as to the source of my graduate self’s confusion and awe of my senior colleagues’ wisdom. While the best solution may have been found, a problem persists; sometimes this judgement must be explained to a non-technical layperson, including graduate engineers.

Explaining engineering judgement to non-technical persons happens in a range of contexts – financial, managerial, corporate, governmental, legal, and the wider community. It is especially important for these stakeholders to understand the decision-making processes when dealing with safety, the environment, project management, operations and a whole host of other engineering considerations. This means that engineering jargon and equations will often work against the goal of communication.

The most effective approach I have found to communicate engineering judgement is to explain the options considered, their gradual exclusion, and the specific reasons each excluded option was considered unsuitable. It requires a clear explanation of critical success factors and how each option supports or hinders each of these goals. This best reflects the engineering process, where much of the time the ‘best’ option is actually the ‘least worst’ option, given the constraints it must meet and the corresponding trade-offs in time, cost, quality, and efficiency.

I find this process is generally understood by non-technical persons and helps prompt structured and useful questions from listeners: Why was this option not appropriate? How were the specific benefits of this option considered? This provides a good enquiry framework for engineering graduates and others to both understand and develop their own engineering judgement.

It is critical for graduates to develop their engineering judgement and the ability to communicate it. It brings confidence to both the engineer and their stakeholders, as each better understands the others’ needs and decisions. It is, in many ways, the single most important skill I have developed in my career, and something that each day I practise, in both senses of the word.

My advice for graduates is to take any opportunity to do the same. Make your best decisions for the problems you face, and then discuss your judgements with your managers, mentors and teammates. And when more complex engineering problems arise you’ll be able to not only solve them but also explain them. And that’s something that every engineer should be able to do.

Also published at:

https://eea.org.au/insights-articles/art-communicating-engineering-judgement

https://frontier.engineersaustralia.org.au/news/the-art-of-communicating-engineering-judgement/

15/12/16 15/12/16

2016 The Year in Review

2016 is almost over, and a new year is fast approaching. R2A has had a great year. Below are some highlights we would like to share with you.

In early 2016 we launched the 2016 update of the R2A text, Engineering Due Diligence, at our annual function. This included Richard’s discussion of one of the first prosecutions of an officer of a company under the newly implemented Work Health and Safety legislation.

Shortly after this R2A took on a new business partner, Tim Procter, who returned to R2A after a number of years working in engineering design and consulting. Tim also joined the Engineers Australia College of Leadership and Management Victorian Committee.

And, not to be outdone, in mid 2016 Gaye welcomed the arrival of her second daughter.

Richard, Gaye and Tim are now looking forward to R2A’s next event. On 7 February 2017 R2A and the Victorian Bar will welcome former British MP Professor David Howarth, Reader in Law at Cambridge University, to Engineers Australia’s Melbourne centre. David will discuss his recent book, Law as Engineering, and his thoughts on some interfaces between lawyers and engineers. This will be a larger event than we have previously held – registrations are available through Engineers Australia’s events website. We’re planning that this be the first in a series of seminars exploring this subject. We’d love to see you there.

Interesting Projects

Transurban: R2A completed a review of all fire safety systems for Transurban’s Australian tunnel portfolio, with a particular focus on what constitutes recognised good practice for aging assets.
Public Transport Victoria: R2A conducted project due diligence reviews for a number of PTV business cases involving trams, trains, buses, safety and accessibility projects.
IPART: R2A provided advice to IPART, the NSW electricity safety regulator, on the development of an audit framework for electricity network safety management systems. This was an extensive project that involved reconciling a number of concurrent pieces of legislation to ensure the framework was acceptable to all stakeholders.
Legal advisory services: R2A advised our clients and their legal counsel in a number of confidential projects relating to the implications of the new WHS legislation for their operations and management.
Department of Land, Water and Planning: R2A advised DELWP on the implications of the new WHS legislation when considered against the revised Australian National Committee on Large Dams (ANCOLD) guidelines.
Port of Melbourne Corporations: R2A are undertaking an asset safety due diligence review for a critical piece of Port infrastructure.

Gaye has also been appointed to the Energy Safe Victoria Powerline Bushfire Safety Committee, which will continue its work in 2017.

Conferences

Richard and Tim presented at a number of conferences and seminars in 2016, and are available for similar opportunities in 2017. Please get in touch if you have an event coming up.

Conference on Railway Excellent (CORE) 2016. Rail Tunnel Fire Safety System Design in a SFAIRP Context. Co-authored by Tim Procter and Lachlan Henderson of Metro Trains Melbourne.
Asset Management Council and Risk Engineering Society (Melbourne). Risk and Asset Management.
Dust Explosions Conference, 2016. Dust Explosions and the (Model) WHS Act.

Media

R2A were featured in a number of publications in 2016. The Sourceable articles in particular (listed here chronologically) show our evolving thinking on the implications of the precautionary approach in engineering decision-making and the wider society. This culminated in our final article for the year, which presents our view of the history and philosophy of the ISO/AS31000 (hazard-based) and WHS/common law (precaution-based) approaches to risk management, and the conflicts that have arisen between them.

Are Australian Standards Becoming Irrelevant? (Sourceable) (No longer available).
Precaution v Precaution (Sourceable)
Unknown Knowns: the Perils of Blind Spots (Sourceable)
Problems and Solutions: The Power of Perspective (Sourceable)
Legal vs Engineered Due Diligence (Sourceable)
Everyone is Entitled to Protection – But not Always the Same Level of Risk (Sourceable)

Tim also had a paper published in the 2016 edition of the peer reviewed Australian Journal of Multi-Disciplinary Engineering: Due diligence in the operation and maintenance of heritage assets.

Education

Throughout 2016 Richard delivered public and in-house courses on Engineering Due Diligence to a wide range of attendees.

Richard also continued to present the Swinburne University post-graduate unit Introduction to Risk & Due Diligence. In 2016 this was made a core unit for all engineering post-graduate degrees. Gaye, Tim and R2A associates presented guest lectures during the semester. With this increased enrolment Tim and Gaye will be joining Richard as regular lecturers in 2017.

The 2-day joint R2A/EEA Engineering Due Diligence workshop was again successful this year and will continue in 2017. This workshop is aimed at aspiring directors and senior managers.

10/10/16 10/10/16

Specialist, Manager or Innovator?

“The analogy with music is useful because nobody can dispute the fact that there are three types of musician: the composer, the performer and the conductor. Nor can anybody disagree that there are world-famous musicians who are outstanding in one of these three professions without having outstanding talent for either of the other two. If we agree on this, we can separate them and deal with them in their special fields.” Desiderius Orban (1978) What is Art all About?Engineers may have more in common with artists than they realise.Young engineers are often stymied by the many career paths available to them. One way to select the best path is to know your strengths. Engineers can excel as specialists (like the first violinist for the MSO), as managers (like the conductor of the MSO) or as a creator or innovator of new goods or services, like a composer. They can also be good at any two and sometimes all three, although this is actually comparatively rare.Orban points out that being good at all three is what is required to be an excellent artist, which is why very good artists are so few in number. But it’s less of an issue for engineers as they usually work in well organised teams with multiple, often overlapping skill sets.Specialists are usually the easiest to identify. Attend a conference or review of published technical papers will suggest who they might be. Organisers show up as managers and consulting engineers, especially after the completion of an MBA. Creators (if they are organised) show up on the rich list. If disorganised, their ideas will be consumed by others and they are likely to be impoverished.All of us have elements of these skills to some extent. The trick is determine your profile and then select a career accordingly. Not only will the engineer do ‘right’ by themselves, they will also achieve the full potential on behalf of the organisations and society they serve.As an example, the diagram above describes a successful consulting practice with two directors with complementary skills profiles.

3/10/16 3/10/16

Timeline of Key Australian Risk Concepts and Events

R2A’s recent work on dam safety led us to develop a timeline of key risk and due diligence concepts and events as they have appeared and influenced Australia. This goes some way to explaining the current divergence between the AS/ISO 31000 hazard-based risk management approach, and the common law and WHS Act precaution-based due diligence approach.In essence, both approaches attempt to demonstrate risk equity, that is, that no one is unreasonably exposed to risk. The key difference between the approaches is that the due diligence approach focuses on ensuring a minimum acceptable level of protection is in place, in the form of precautions. This is an inherently objective test – either the precautions are in place or they are not.In contrast, the hazard-based approach aims to show that a maximum tolerable level of risk is not exceeded, an inherently subjective approach which requires (amongst other things) accurate predictions of the probability of complex potential future events.Both of these approaches have the primary aim: risk equity. However only the precaution-based due diligence approach was developed and has continued to be accepted by the courts and parliaments of Australia, as clearly shown in the timeline below.Blue relates to the precaution-based (SFAIRP) approach, red to the hazard-based (ALARP) approach.1932 Concept of ‘neighbours’ developed for negligence cases in the UK[1].1949 Disproportionality ‘unpacked’ in the Coal Boards case in the UK.[2].1974 ‘So Far As Is Reasonably Practicable’ (SFAIRP) concept introduced in UK safety legislation [3]. This incorporated a demonstration of risk equity in the form of minimum levels of precautions1980 Interpretation of ‘reasonableness’, the common law precautionary balance established by the High Court of Australia (HCA)[4].1982 Issues not ‘remote or fanciful’ must be considered (HCA)[5].1985 Victorian Occupational Health and Safety (OHS) Act adopts ‘so far as practicable’[6]1986 Elimination of the remaining ties between the legislature and judiciary of Australia and the UK making the High Court of Australia judicially paramount in Australia[7].1987 UK public inquiry (the Layfield Sizewell B review) recommends the UK Health & Safety Executive (HSE) develop guidance as to the tolerability of safety risk from nuclear power plants.[8]1988 Concept of ‘As Low As Reasonably Practicable’ (ALARP) introduced by UK HSE in response to the Layfield review recommendation. This appears to be an attempt to make safety risk a ‘science’[9] by using target (acceptable or tolerable) levels of risk to demonstrate risk equity.1990 ‘Safety Case’ concept authoritatively articulated in the UK[10].1995 AS4360 risk management standard released, explicitly adopting the ALARP approach[11]. Revised in 1999, retains the ALARP approach[12].2001 That ALARP is equal to SFAIRP formally articulated in UK[13].2004 Maxwell QC reviews failures of acceptable or tolerable risk target approach to safety. Articulates SFAIRP[14]. Equates Victorian OHS Act ‘so far as practicable’ to SFAIRP.2004 AS4360:2004 released, maintaining the ALARP approach[15].2004 Victorian Parliament adopts SFAIRP in legislation[16].2009 AS31000:2009 released, incorporating the ALARP approach from AS4360[17]. This is subsequently referred to in other standards including AS55000:2014 (asset management)[18], and AS5050:2010 (business continuity)[19].2011 Model Work Health and Safety (WHS) legislation adopts SFAIRP approach following the Victorian OH&S Act and due diligence[20] case law.2011 Victorian Government accepts precautionary approach embodied in model WHS legislation by adopting all recommendations of the Powerline Bushfire Safety Taskforce[21].2014 Engineers Australia articulates the difference between SFAIRP and ALARP and issues guidance accordingly[22].Footnotes - [1] UK House of Lords. Donoghue v Stevenson [1932] UKHL 100 1932.[2] UK Court of Appeal CA. Edwards v. National Coal Board.[3] UK Health and Safety at Work etc Act 1974.[4] High Court of Australia. Wyong Shire Council vs Shirt (1980) 146 CLR 40.[5] High Court of Australia. Turner v. South Australia (1982) 42 ALR 669.[6] Occupational Health and Safety Act 1985. Parliament of Victoria.[7] Australia Act 1986 (Cth), Australia Act 1986 (UK).[8] F. H. B. Layfield, Great Britain Department of Energy (1987). Sizewell B Public Inquiry Report.[9] The Tolerability of Risk from Nuclear Power Stations. UK Health and Safety Executive.[10] The Public Inquiry into the Piper Alpha Disaster. W D Cullen (1990) London. HMSO.[11] AS4360:1995 – Risk management. SAI Global (1995).[12] AS4360:1999 – Risk management. SAI Global (1999).[13] Reducing Risks, Protecting People. UK Health and Safety Directorate (2001).[14] Occupational Health and Safety Act Review. C Maxwell (2004).[15] AS4360:2004 – Risk management. SAI Global (2004).[16] Occupational Health and Safety Act 2004. Act No. 107/2004[17] AS31000:2009 – Risk management – Principles and guidelines. SAI Global (1999).[18] AS55000:2014 – Asset management - Overview, principles and terminology. SAI Global (2014).[19] AS5050:2010 – Business continuity - Managing disruption-related risk. SAI Global (2010).[20] Model Work Health and Safety Bill. 23 June 2011. Safe Work Australia.[21] Victorian Government Response to The Victorian Bushfires Royal Commission Recommendations 27 and 32. December 2011[22] Engineers Australia, Risk Engineering Society (2014). Safety Case Guideline. Third edition.

17/8/16 17/8/16

Law as Engineering

A recent book Law as Engineering by English legal academic Professor David Howarth of Cambridge University documents a major change in legal philosophy in the last 10 years or so. Essentially he notes that these days most (80%+) lawyers do not litigate. Rather, they design social constructs like contracts, companies and wills to facilitate their clients’ social needs, just like engineers design physical constructs to satisfy their clients.As a consequence he observes that lawyers have a lot to learn from engineers, both in practice and academia, since the engineers utilising design processes have been at it a lot longer than the lawyers. An excellent 10 minute presentation by David is available at https://vimeo.com/97679111.All this parallels a point made in a table in the first section of the R2A Text shown below.

Formal Philosophy (Logic)	Natural Philosophy (Science)	Moral Philosophy (Design & Ethics)
The universal and necessary laws of reason.	Knowledge about the natural material time space universe acquired using rational principles (logic).	Consideration of what ought to be and how this can best be achieved. It results in:Social InfrastructureThe implementation of an ethic that modifies our social institutions and conventions.Material Infrastructure The implementation of a design that changes the natural material time space universe.

Due diligence is a legal concept which speaks to the social requirements of material infrastructure, that it should be useful (fit for purpose) and safe (not harmful). In this context, engineering due diligence means designing to ensure that both social and material infrastructure align.

15/2/16 15/2/16

When does SFAIRP = ALARP?

The primary reason for the judicial rejection of target levels of risk or safety appears to hinge around the notion of uncertainty. When a risk expert says something is safe because the likelihood of its occurrence is around 1 x10^-6 pa or 1 x 10^-7 pa, they are really speaking of an inspired guesstimate or characterisation of uncertainty. That level of unlikeliness when describing a real world occurrence is just unpredictable. That is why our courts and parliaments have opted for demonstrating that all reasonable precautions are in place (the SFAIRP approach) as an alternative to calculating a difficult-to-defend number (the ALARP approach), after an event.However, there is a caveat to this SFAIRP approach. Our courts require that, even if all reasonable practicable precautions are in place, that if something is prohibitively dangerous, it ought to be stopped altogether. What does this mean?Prohibitively dangerous in risk terms means that its very bad, like a fatality, and that relatively speaking, it happens a lot, like for example, the road toll. People die on our roads regularly. So despite all the ways such fatalities can occur, because it happens a lot, it is relatively predictable. The road fatality number is generally accepted as being 1 x 10^-4 pa. This is 100 to 1000 times more likely than 1 x10^-6 pa or 1 x 10^-7 pa. Does this mean that the road fatality death rate could be used as a benchmark for prohibitively dangerous?Very possibly, at least on a large scale, industry wide basis. The courts discomfort with the ALARP approach is due to the hindsight driven nature of the courts. A death implies that the risk expert’s estimation of the rarity of the event prior to the occurrence was flawed. But if the whole activity was stopped because it approached 1 x 10^-4 pa, then the courts would be silent on the matter. That is, the more scientific, ALARP would hold sway. It would certainly be more definite in the sense that the courts would have to accept that it has a greater predictability.This suggests that SFAIRP = ALARP and could be used as a test to demonstrate when an activity is prohibitively dangerous.

13/10/11 13/10/11

RMIA Conference resources

We hope that you enjoyed the RMIA conference.

Here is Richard's Conference paper.

If you would like more information or to attend the R2A workshop on the new Health & Safety Act, visit the Workshop page.