Role & Responsibility of an Expert Witness

Arising from an expert witness commission, relevant counsel has directed R2A’s attention to Makita (Australia) Pty Ltd v Sprowles [2001} NSWCA 305 (14 September 2001), which provides an excellent review of the role and responsibility of an expert witness, at least in NSW. The case cites many authorities outlining these responsibilities. For example, (at 59) it indicates that for the professor’s report to be useful, it is necessary for it to comply with the prime duty of experts in giving opinion evidence, that is, to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. This is alternatively stated in a number of different places and ways, for example (at 60);Courts cannot be expected to act upon opinions the basis of which is unexplained. And again (at 69); Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider the relevant ones, the opinion will be valueless. In our judgement, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination. In keeping with what constitutes expert witness opinion in the above, it remains a source of frustration to R2A that legal decisions can be so opaque to non-lawyers that it requires legal counsel to direct R2A to the best decisions to provide insight in to the workings of our courts. From R2A’s perspective, judgements should ideally be available in plain English on searchable databases, so that the information is readily available to all. Apart from making the life of due diligence engineers easier, it would also enhance the value of the work of the courts to the society they serve. Interestingly, David Howarth (professor of Cambridge Law and Public Policy) whom R2A sponsored to Melbourne last year (2017), made a passing remark that there was a reason for this complexity. It is to do with the fact that judicial decisions can effectively become retrospective in the common law. To avoid this outcome, judges ensure that the detailed circumstances of each decision is spelt out so that any such retrospectivity can be curtailed. Editor's Note: This article was originally posted on 1 July 2014 and has been updated for accuracy and relevance.

Witness Box Whiteboards?

Engineers tend to think problems through as visual concepts, particularly as a concept sketch or design. This is reflected by a lawyer trained CEO of a water authority:

Now that you mention it, I have noticed that if I get between the whiteboard and my engineers they do tend to go mute.

That is, for an engineer a picture really is worth a 1,000 words. Well, at least a picture with some numbers on it.The courts, on the other hand, use words exclusively. It can be something of an art form to read a judgment to establish the key decision point. And when an engineer is in a witness box trying to explain to two barristers and a judge (who have not done a science based subject for many years) a complex technological matter, it is small wonder that uncertainty arises in the collective mind of the court.It would be most desirable to ensure the efficiency of the rule of law to include a whiteboard in the witness box when an engineer is on the stand.

EA College of Leadership & Management Event

In his capacity as Victorian Committee member, Tim Procter organised and MCed the recent winter seminar for Engineer Australia’s College of Leadership and Management.Daniel van Oostenwijck (VicTrack) and Clive Domone (EY) spoke on The Mobile Office – Working Anywhere, providing insight to help leaders and managers achieve high performance when leading distributed teams. Daniel and Clive made many interesting points from their experience as both leaders and team members, prompting audience questions and discussions.With around 30 attendees in person and another 90 registered to watch online the seminar was well attended. The event was recorded as a video webinar for future viewing. The link to view the webinar is here:https://livestream.com/accounts/5690925/events/7597877(The password is ‘Gradedge2017’; the webinar begins at the 16:00 minute mark.)

Engineering Coming Into Focus

Doctor Iain McGilchrist will soon be in Australia to present to the 2017 Annual Conferences of Judges of the Federal and Supreme Courts of Australia. Dr McGilchrist is a psychiatrist and a former reader in English at Oxford University. Dr McGilchrist’s most recent book, The Master and His Emissary, has been discussed in an illustrated TED talk and is also the subject of an upcoming documentary.

The Master and His Emissary explores the evolution, interactions, workings and meanings of the human brain’s left and right hemispheres. In particular, he investigates and expands on the different roles the left and right hemispheres play in our interaction with, perception of, and understanding of the world.

One of the many interesting concepts discussed is the notion of the ‘gestalt’ in cognition and understanding. Comprehending the gestalt may be thought of as the appreciation of something as more than the sum of its parts – for example, the “ah-ha!” moment when meaning emerges from the image above.

Once the Dalmatian is perceived it becomes obvious, even though it is not ‘built’ from the component black blotches of the image. Appreciation of the gestalt is something for which the right hemisphere has a much great facility than the left. It excels in understanding context and individuality.

The left hemisphere, in contrast, tends to work with logic and analysis, systems, models, representations, classing and sorting, and so on. It assembles component parts into a known whole, to move in a linear fashion from a starting point to a finishing point – whether or not this remains in the proper context.

Ultimately both of these approaches are needed for problem-solving. Unfortunately, in engineering, there is sometimes a tendency to treat analysis as the whole of the solution. This particularly presents problems when the analysis is seen as ‘true’ or ‘real’. Ultimately a model is literally a re-presentation of the world – a simplified system built in terms that (we believe) we understand. As the statistician George E. P. Box noted, “all models are wrong, but some are useful”.

However, it is very difficult, and sometimes impossible, to simultaneously appreciate a gestalt and its components. As soon as one focuses absolutely on one blotch in the picture above, the Dalmatian disappears.

R2A has found an effective approach to problem-solving is the following ‘V’ process. The example below is for a generic safety issue, but the approach may be adapted to any problem.

One key is the understanding that detailed analysis may or may not be needed. Each problem is individual and unique, and providing convincing solutions to different groups of stakeholders each facing the same problem will often require different levels of detail. Keeping this in mind during analysis, with an understanding of the high level problem context and solution goals, assists in delving only to the analytical depth necessary.

A second key is the recognition that this is not a linear process. It may take the form of an ascending spiral, continually reviewing and refining past ideas as it moves towards resolution. Or a solution may, as with the Dalmatian image above, simply emerge from the assembly of data, as a picture coming into focus.

Either way, retaining the context and individuality of each problem is paramount to developing good solutions – engineering’s ultimate aim.

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.

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.

Swinburne 2016 Wrap-up

The post-graduate course R2A presents at Swinburne became a core unit in 2016. Over 80 students enrolled in first semester. The course is based around the 2016 edition of the R2A Text.

Presenters from R2A included Gaye Francis, Tim Procter, Richard Robinson and Adriaan den Dulk.

The enrolment numbers were a step up from previous semesters, and the topics students chose for their projects varied accordingly, including transport, construction, waste management, and one particularly memorable demonstration of an exploding mobile phone battery.

We enjoyed the increased diversity in contributions and viewpoints, and we look forward to engaging with more new students in our 2017 Engineering Due Diligence course.

Recommended Reading List

R2A maintains a focus on our directors’ continued personal and professional development. One key area of this is exploring new and historical ideas from the wider engineering context.We often find interesting ideas in our reading, with relevant ideas for engineers, especially as they relate to due diligence and good decision-making.Our recent blogs have discussed titles such as:

• A Field Philosopher’s Guide to Fracking, by Adam Briggle.
• Law as Engineering, by David Howarth.

A current source of interest is Edwin T. Layton, Jr.’s 1971 award-winning historical classic The Revolt of the Engineers. This seminal text explores the emergence of the non-military engineering profession from the conglomerate of trades and technical workers in mid-19^th century USA through to the 1960s.There are many intertwining themes in this text, but perhaps the most influential is the tension that arose (and still exists) between the engineer’s role as a businessperson, and the engineer’s role as an independent expert (similar to a doctor). This conflict was played out through the formation and interplay of the various engineering societies with their differing agendas, and generated an unsuccessful push to place engineers at the centre of public decision-making.This excellent and concise book describes the conditions that led to this episode, and illuminates the need for and role of engineering societies such as The Institute of Engineers Australia. While perhaps not providing definitive answers on how the professional-businessperson tension may be resolved, Layton at least asks the right questions. It is recommended reading for all engineers and engineering students.

Safety in Design - A Due Diligence Perspective

Due diligence is a legal concept.  From the Concise Australian Legal Dictionary, due diligence is, a minimum standard of behaviour involving a system which provides against contravention of relevant regulatory provisions and adequate supervision ensuring that the system is properly carried out. The concept of due diligence has been captured in Corporations law, Environmental Law and now the model Work Health and Safety legislation.In an engineering and technological context due diligence is often construed to just mean compliance.  This is not the case.Due diligence is an aspect of moral philosophy, that is how the world ought to be and how humanity ought to behave to achieve it.  Often, this is along the lines that one should treat others as you would like to be treated by them.Due diligence for safety in design purposes uses the principles behind the judgments of the courts and applies them pre-event to ensure sound decision making. That is, reverse engineering of judicial decisions as shown above.How this manifests itself is that sometimes bad things happen and Courts and Royal Commissions question the design and design process with the advantage of hindsight to see what could have been in place, if it had been in place would have stopped the bad thing / accident from happening. Outcomes from such investigations are then fed back to see if the parties involved in the design were diligent.Safety due diligence is all about showing pre-event that the operation is safe. This means that when safety is being considered in the design process, all of the people that could be affected by the design need to be taken into account and the potential hazards to which they are exposed, over the entire lifecycle.From a safety due diligence aspect, all reasonable practicable precautions need to be in place applying the hierarchy of controls.

Precautionary Principle vs Precautionary Approach: What's the Difference?

One of the more interesting philosophical issues arising from the introduction of the model WHS legislation is the question of whether the precautionary principle incorporated in environmental legislation is congruent with the precautionary approach of the model WHS legislation.The precautionary principle is typically articulated as: If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation[1], with due diligence being recognised as a defence in the Victorian Act (Section 66B).The words in Australian legislation are derived from the 1992 Rio Declaration. This formulation is usually recognised as being ultimately derived from the 1980s German environmental policy. The origin of the principle is generally ascribed to the German notion of Vorsorgeprinzip, literally, the principle of foresight and planning[2].The WHS legislation adopts a precautionary approach. It basically requires that all possible practicable precautions for a particular safety issue be identified, and then those that are considered reasonable in the circumstances are to be adopted. In a very real sense is develops the principle of reciprocity as articulated by Lord Atkin[3] in Donoghue vs Stevenson following the Christian articulation, quote: 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 neighbor. Interestingly, in describing what constitutes a due diligence defence under the WHS act, Barry Sherriff and Michael Tooma[4] favourably quote a case from the Land and Environment Court in NSW, suggesting that due diligence as a defence under WHS law parallels due diligence as a defence under environmental legislation.Does this mean that the two precautionary approaches, despite having quite divergent developmental paths have converged?Tentatively, the answer seems to be ‘Yes’. The common element appears to be the concern with uncertainty stemming from the potential limitations of scientific knowledge to describe comprehensively and predict accurately threats to human safety, and the environment.What does this mean? At the least is means that due diligence as a defence against things that can go wrong in Australia is on the up and up.

---

 [1] Victorian Environment Protection Act 1970.
No. 8056 of 1970
Version incorporating amendments as at 1 September 2007. Version No. 161.[2] Jacqueline Peel (2005). The Precautionary Principle in Practice. Environmental Decision Making and Scientific Uncertainty. The Federation Press.[3] Donoghue v. Stevenson (1932). See http://www.bailii.org/uk/cases/UKHL/1932/100.html[4] Barry Sherriff and Michael Tooma (2010). Understanding the Model Work Health and Safety Act. See p 43. State Pollution Control Commission v RV Kelly (1991).

Risk vs Due Diligence: Why a Finnish community lobbied for a backyard reactor

I was recently part of a panel discussion on electrical energy security and the role of nuclear energy in Australia for the Electrical Energy Society of Australia.The panel consisted of five industry experts covering topics on energy security, nuclear energy, and risk and policy determination. A question and answer session followed the presentations.The opening address was by Senator Sean Edwards (Liberal Senator for South Australia) in light of the South Australian government’s decision on 8th February 2015, to establish a Royal Commission into the life cycle of nuclear fuel.My presentation titled 'Risk vs Due Diligence: Why a Finnish Community lobbied for a backyard reactor' was a personal insight into the way the Finns have established and embraced the nuclear industry over the last 40 years. It also explains why communities now put their hand up for new nuclear facilities.Finns do not discuss the level of risk of the nuclear facilities. They show it is safe by demonstrating that all reasonable practicable precautions are in place. Safety is not compromised for on-time and to budget delivery of new nuclear power facilities. For example, the Olkiluoto 3 nuclear power unit is 9 years behind schedule as a result of some safety concerns. There is a robust and stringent governance framework that does not allow short cuts to compromise safety.The presentations were filmed and can be viewed here.

Have you ever wondered ‘What is engineering due diligence’ and what is it that ‘R2A does’?

As due diligence engineers we often get asked what is engineering due diligence and what it is that we actually do at R2A. To be honest, this has been a really difficult question to answer.  Due diligence is a legal concept and often construed to only mean compliance in the engineering context which is not the case. Previously Richard has used throw away lines like ‘we align the laws of nature with the laws of man’  that is, ‘we make lawyers useful’. Although these are outcomes of what we do, they didn’t quite answer the question of ‘what engineering due diligence actually is’.

So, after much thought, here is our latest attempt of explaining what engineering due diligence is.

R2A explanation – What is engineering due diligence?

Engineering due diligence uses the principles behind the judgments of the courts and applies them pre-event to ensure sound organisational decision-making. The primary purpose of engineering due diligence is to facilitate safe and efficient operations. It also provides confidence to all relevant parties.  It perhaps represents a form of reverse engineering of ‘the decisions of the courts’.

In the event of an incident, the due diligence process should satisfy the courts.  As a legal concept and it represents an aspect of moral philosophy, that is, how the world ought to be and how humanity should behave.  This is along the lines that one should treat others as you would like to be treated by them (the reciprocity principle).

The role and responsibilities of an Expert Witness

Arising from a recent expert witness commission, the legal counsel directed R2A’s attention to Makita (Australia) Pty Ltd v Sprowles [2001} NSWCA 305 (14 September 2001), which provides an excellent review of the role and responsibility of an expert witness, at least in NSW.The case cites many authorities and outlines the various responsibilities of each. For example, (at 59) it indicates that for the professors report to be useful, it is necessary for it to comply with the prime duty of experts in giving opinion evidence, that is, to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.This is alternatively stated in a number of different places and ways, for example (at 60); Courts cannot be expected to act upon opinions the basis of which is unexplained.  And again (at 69); Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider the relevant ones, the opinion will be valueless.  In our judgement, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based.  It is wrong to leave the other side to elicit the facts by cross-examination.In keeping with what constitutes engineering due diligence in the article above, it remains a source of frustration to R2A that legal decisions are so opaque to non-lawyers that it requires legal counsel to direct R2A to the best decisions to provide insight in to the workings of our courts.  From R2A’s perspective, judgements should ideally be available in plain English on searchable databases so that the information is readily available to all. Apart from making the life of due diligence engineers easier, it would also enhance the value of the work of the courts to the society they serve.Case web reference:http://www.austlii.edu.au/au/cases/nsw/NSWCA/2001/305.htm

Due Diligence vs Risk Management

We desire that our world be prosperous and safe. And it seems that due diligence has become essential to these outcomes. Due diligence (or care) is a legal concept, derived from the societal need to ensure fairness in dealings between human beings. It has been variously defined, for example:

The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or obligation¹ and,A minimum standard of behaviour which provides against contravention of relevant regulatory provisions and adequate supervision ensuring that the system is properly carried out.²

Such legal obligations can be created by statute law, for example the Model Work Health and Safety Act (2011)³ or from the common law as a defence against negligence⁴.Engineering due diligence is all about ensuring that the laws of nature and the laws of man simultaneously align. Sometimes this really does require moral courage and persistence.Risk, and its close cousin reliability, are not scientific concepts. Certainly there are elements like consequence modelling that are scientific. But the reason why things go wrong is more to do with human confusion or greed rather than a misunderstanding of the science.Taking chances (risks?) to advance the human cause (and yes, make money) must be encouraged – but doing it recklessly and endangering others - should be discouraged. The solution is due diligence, not risk management.

¹Black’s Law Dictionary, 4th Edition (2009)

²LexisNexis Concise Australian Legal Dictionary, 4th Edition (2011)

^{3 Risk & Reliability - Engineering Due Diligence (9th edition)}

^{4 Risk & Reliability - Engineering Due Diligence (9th edition)}

Diversity Means Business

The Women in Engineering National Committee (WIE NC), working with large engineering employers, have developed a solutions based approach focusing on delivering better business outcomes to enable industry to evolve and successfully compete in a changing environment.

Many of our members work in organisations that have had singular success in recruiting, retaining and celebrating female engineers in their workforce.

As a response to numerous approaches from industry to provide advice and guidance on how to set up a successful in-house professional women’s program, the WIE NC undertook a project to develop an industry blueprint of successful in-house professional women’s programs.

A paper was developed following a round table discussion with industry partners, that have programs that successfully encourage gender diversity in an organisation through initiatives that attract, retain and celebrate women in the engineering profession.

The paper looks at some of the issues to consider, key messages to achieve success and some lessons learnt when setting up an in-house professional women’s program. The full document is available on-line here.

The paper plays a vital role in achieving the Committee’s vision of a diverse, inclusive and sustainable engineering profession.

The program was officially launched at the Engineers Australia Fellows luncheon. Thanks to our industry partners Alcoa, Ford, IBM, NSW Transport RailCorp and Sinclair Knight Merz.

Photos from the launch shown below.

Left to right - Harry Roberts, Executive Manager Integrated Transport Solutions, Asia Pacific, KBR, Gaye Francis, John McIntosh, President, Engineers Australia Victoria Division and Madeleine McManus, National Councillor Engineers Australia

Tom Fricke, Executive Board Member Committee for Melbourne and Gaye Francis

Fellows Luncheon and Diversity Means Business launch

Tom Fricke, Executive Board Member Committee for Melbourne and Gaye Francis

Does ALARP = Due Diligence?

Does ALARP = Due Diligence?

Does ALARP equal due diligence? Well yes, if ALARP (as low as reasonably practicable) is redefined, as appears to be presently occurring.

Once upon a time ALARP meant achieving an acceptable or tolerable level of risk (consequence and likelihood). It was classically articulated by the UK HSE (Health and Safety Executive) in 1988 in the document The Tolerability of Risk from Nuclear Power Stations. The HSE suggested the limit of tolerable risk to a worker is 10-3 per year; the limit of tolerable risk to a member of the public is taken as 10-4 per year. The risk to a member of the public that might be regarded as acceptable, as opposed to tolerable, is then taken as 10-6 per year.  Such a concept was then taken up extensively in Australia, for example the NSW land use planning guidelines (2008).

However to satisfy the courts after the event, various caveats have been added to this approach. For example, from the NSW guidelines, … irrespective of numerical risk criteria, the broad aim should be to 'avoid avoidable risk.'  Another common caveat is to say that, irrespective of the level of risk, the value of further precautions should always be considered.

Effectively this means that ALARP is being redefined to mean the level of risk which is achieved if all reasonable practicable precautions are in place, that is, a demonstration of due diligence. Of course, ALARP remains a hazard based concept.  It talks about the level of risk, not the level of precautions, the court based concept. This means ALARP typically remains subject to at least two primary conceptual errors, namely:

1. Risk AssessmentRisk assessment is not scientific. Two risk experts independently assessing the risk never come up with the same answer. Risk assessments are not repeatable. So what does a risk assessment mean?  How can it be right?
2. Risk CriteriaRisk assessments are then normally compared to criteria. But such criteria are generally just statistical interpretations.  They are not statements of truth. The old adage, that there are lies, damned lies and then there are statistics applies.

It is a very complex process to chart a course through the hazard based process that can arrive at a due diligence position.  It needs at least the two caveats described above to be applied to what is a tortuous, error prone path.