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.

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.

ACT WHS Case

One of the first test cases under the model Work Health and Safety legislation occurred in the ACT in 2012.

Michael Booth had been retained on an hourly rate basis to deliver road building materials to a small compound. Over the compound were low hanging, energised electrical conductors, which was a known hazard to the company, Kenoss, which operated the site. During a dump, Mr Booth’s tipper truck formed an arc with the conductor/s and having exited his vehicle, Mr Booth was found dead on the ground.

Magistrate Walker found that these risks had been known and that simple and affordable methods could have avoided the death.

Both the company and its General Manager were prosecuted for breach of the Work Health and Safety Act 2011 ACT. In her decision of 23 June 2015, Industrial Magistrate Walker made a number of observations. These included that the offences were criminal in nature, meaning inter alia, that the prosecution had to prove the offences beyond reasonable doubt, and that strict liability applied pursuant to section 12A of the Act.

In her judgment, Magistrate Walker held that the General Manager did not actually have the authority normally ascribed to a GM as he had to defer to the owners of Kenoss for budgeting and spend decisions. According, she found that he did not have control of Kenoss as a responsible officer of a PCBU (person conducting a business or undertaking) and could not be prosecuted on that basis.

The company, which was in liquidation, was found to be in breach and fined $1.1m.

2015 The Year in Review

It’s hard to believe that 2015 is coming to a close and 2016 is almost here. As part of our end of year wrap up, here are some of the highlights that we would like to share with you.

The year started with drinks and canapes to launch the 10^th edition of the R2A Text, which saw a name change to Engineering Due Diligence. The event was well attended by industry colleagues and provided an overview of the new aspects of the book as well as a discussion of the general state of affairs in industry.

Richard and I will host a similar event on 9^th February 2016 to launch the updated 10^th edition of the text. We will also discuss one of the first prosecutions under new nationally harmonised Work Heath & Safety Laws Brett McKie V Munir Al-Hasani & Kenoss Contractors Pty Ltd (in liq). We would love to see you there so pencil the date into your diaries.

We were privileged to work with many clients throughout the year. Here are a few of the interesting projects completed during the year.

INTERESTING PROJECTS

Mega Projects Seminar. The seminar outlined the R2A Project Due Diligence process. This provides an independent snapshot review of the project in a prompt and cost effective manner by identifying and managing potential showstoppers, those issues which are catastrophic to the project. The process overcomes the failures of the ISO 31000 approach and Monte Carlo simulations to identify rare but fatal showstoppers.

Fibrolaser Risk Assessment. A review was undertaken in relation to all elements of the CityLink fire detection and suppression systems within the Burnley and Domain tunnels.

Eagle Farm Pumping Station Operational Due Diligence Review. The objective of the operations due diligence review was to identify and document all reasonably foreseeable scenarios, which may lead to a failure of the Eagle Farm pumping operation and to propose practicable precautions to address these.

Geraldton Port Pilotage Safety Due Diligence Review. A due diligence approach was used for this safety review as the ISO 31000 Risk Management Standard approach is not effective for high consequence - low likelihood events. The review confirmed that all reasonable practicable precautions are in place for all credible, critical safety issues associated with the movement of ships in Geraldton Port.

CONFERENCES

Gaye and Richard presented at a number of conferences and seminars in 2015 and have availability for similar opportunities next year. Drop Richard or Gaye a line if you have an event coming up.

• Australian Aviation Wildlife Hazard Group – 2015 Annual Forum. Legal Due Diligence and Wildlife Hazard Management.
• Safety Institute of Australia – National Safety Convention. Safety Differently – the Role of Due Diligence Engineering.
• Australasian Marine Pilots Institute – 2015 Pilotage and Logistics Conference. Managing Risk - Sydney Ports Case Study.
• Institute of Fire Engineers Conference. Fire Engineering Design Implications of the Australian Model WHS Legislation.
• Electrical Energy Society of Australia – Why a Finnish Community Lobbied for a Backyard Reactor.
• Engineers Australia Townsville. Safety Case Guidelines.

MEDIA

• R2A were featured in a number of publications in 2015:
• Implications of the Model WHS Legislation (Sourceable. February 2015)
• Mixed Messages from Government on Poles and Wires (Sourceable. April 2015).
• Should the Victorian Government Cool the Planet to Protect Melbourne? (Sourceable. July 2014)
• How Engineers Can Minimise Legal and Financial Risk (Sourceable)

EDUCATION

From an education perspective, Richard delivered numerous public and in house courses on Engineering Due Diligence as well as continuing to deliver the Swinburne post-graduate unit Introduction to Risk & Due Diligence.

The 2-day joint R2A/EEA engineering due diligence workshop was again successful this year and will continue in 2016. This workshop is aimed at aspiring directors and senior managers. Further details and 2016 dates can be found at https://www.r2a.com.au/education/eea-workshop/

Client and Colleagues Event Details 2016

Gaye and I are pleased to host the next R2A client and colleague event on 9th February 2016. We will be launching our updated 10^th edition text as well as discussing the one of the first prosecutions under new nationally harmonised Work Heath & Safety Laws.

BRETT MCKIE V MUNIR AL-HASANI & KENOSS CONTRACTORS PTY LTD (IN LIQ):

What does this first Work Health & Safety test case mean for you 2016?

Event Details

Date: Tuesday, 9^th of February 2016Time:  3pm-5pmRestaurant: The MillUpstairs 71 Hardware Lane Melbourne 3001 http://www.themillrestaurant.com.au/RSVP by 5th February 2016

Look forward to seeing you there.

Hazards Fester whilst Precautions Boil

One of the most interesting aspects of the precautionary approach to safety risk is that innovation is encouraged, whilst with the hazard based approach using tolerable or acceptable risk levels, innovation falters and festers.

The reason is simple. Having demonstrated that an acceptable target level of risk or safety has been achieved, annual safety reviews become a chest beating exercise to show why the previous analysis was numerically in error, and that, as a consequence, more needs to be done. If this can’t be demonstrated, then the review becomes a repeat of prior work, which on the 5^th or 6^th iteration becomes quite meaningless and completely alienating to the workforce.

On the other hand the precautionary approach always tests for what else can be done. It keeps testing and changing and innovating. It looks for the application of new technology and work methods to improve things. It engages those at risk and keeps the safety message on the boil. It reinforces the fact that safety precautions are there for a single purpose – to save those around you from death and maiming.

Racing Pigeon Airport Airspace Flight Controls

One of the more interesting presentations at the recent (5^th and 6^th November) Australian Aviation Wildlife Hazard Group’s conference was regarding concerns about racing pigeons and the desirability of keeping pigeon racing away from airports.

An aircraft arriving at Brisbane airport had struck of flock of pigeons. They were only discovered to be racing pigeons when a metal foot ring, which each bird wears for identification, was found lodged in the turbine runner causing extensive engine damage. Further investigation revealed upwards of 2,000 pigeons were involved in the race, only 200 of which flocked across the airport. The race itself included a more or less straight line course through the airport.

Richard Robinson attended the conference as a speaker on the second day and presented a paper on Legal Due Diligence and Wildlife Hazard Management. He prepared the above (preliminary) illustrative single line threat-barrier diagram to explain many of the points made during the conference.

The issue here is that the value of (possible) precautions needs to be assessed in the context of all of the precautions, not just the ones over which a particular single party has control, even though these are the only ones for which each respective party will be held accountable.

The difference between the hazard based approach and the precautionary approach with regards to airports is summarised in the Hazard and Risk Review completed by R2A for the EIS for the proposed Western Sydney Airport. It is quite clear that a designer, owner and operator of an airport needs to comply with the WHS legislation. The R2A report is available here:

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.

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 [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.

Risk Management Standard Squabble

An interesting article in the European Commercial Risk Europe titled "Hopkin calls for end to risk management standard squabble" discusses the squabble between the use of ISO 31000 and the COSO ERM Cube shown below.

COSO ERM Cube

Essentially the point being made is that the failure to adopt a single approach creates confusion and loss of traction in the market place.

From R2A’s perspective, this confusion was inevitable. The attempt to make market risk and safety risk operate under a single risk management approach was always a nonsense as has become increasingly obvious.

For example, the idea that ‘risk appetite’ can be applied to high consequence, low likelihood safety issues is simply irrational, and in breach of the model WHS legislation. This matter is being discussed in the paper being presented at the AMPI conference above. With regard to the pilotage of ships in and out of Sydney Harbour and Port Botany, the use of ISO 31000 is specifically rejected in favour of the precautionary approach required by the WHS legislation.

What is Due Diligence Engineering (part 2)

A previous blog noted that due diligence engineering is the reverse engineering of the decisions of our courts.  The overall context to this observation is worth exploring.

The diagram below represents a view of the parliamentary structure that is the Commonwealth of Australia within a 19^th century philosophical framework.

Essentially the parliamentary process is a method of implementing moral philosophical thought via the medium of legislation and regulation.  Of course the difficulty is that predicting the way of the world and managing it in advance is stupendously difficult.  For example, simply trying to make the workplace ‘safe’ is a huge undertaking, when all the types of workplaces and environmental circumstances are taken into account. It’s simply not credible that the parliaments and regulators can predict the future so well that they ‘get it right’, all of the time.

This is where due diligence engineering comes in.  By watching the outcomes of the courts, both in their interpretation of legislation and regulation, and the common law assessment of ‘fairness’, engineers can align the observed laws of nature with the expressed laws of man.  This is especially important in an advanced industrial society where the outcomes of human technological activity can have such huge upsides and calamitous downsides.

This means that in the event that it all goes ‘pear shaped’ recriminations are minimised and the need for apology is eliminated.  (It is illogical to say sorry, when the best that should have been done, was done).

Client and Colleagues Event Details 2015

Gaye and I are pleased to host the next R2A client and colleague event on 10th February 2015. We will be launching our 10^th edition text at the event as well as outlining the outlook for 2015 in light of recent publications such as the safety case guidelines.The 10th edition will include a new chapter on Sustainability Due Diligence as well as an expanded section on Project Due Diligence and Safety Due Diligence.Event DetailsDate: 10^th of February 2015Time:  3pm-5pmRestaurant:The MillUpstairs 71 Hardware Lane Melbourne 3001 http://www.themillrestaurant.com.au/RSVP by 6^th February 2015Please join us to celebrate the new R2A text and welcome in the New Year. Look forward to seeing you there.

2014 The Year in Review

It’s hard to believe that 2014 is coming to a close and 2015 is almost here.  As part of our end of year wrap up, here are some of the highlights that we would like to share with you.

The year started with drinks and canapes to launch the updated version of the 9^th edition of the R2A text, Risk & Reliability: Engineering Due Diligence.  The event was well attended by industry colleagues and provided an overview of the general state of affairs in industry.

Richard and I will host a similar event on 10^th February 2015 to launch the 10^th edition of the text. The 10^th edition will include a new chapter on Sustainability Due Diligence as well as expansion of our Project Due Diligence and Safety Due Diligence chapters.

We would love to see you there so pencil the date into your diaries.

Richard and I continued to work with the Risk Engineering Society to develop the third edition of the Safety Case Guideline in 2014 which was officially launched at the 2014 Engineers Australia Convention in Melbourne in November.  The guideline considers how a safety case argument can be used as a tool to positively demonstrate safety due diligence consistent with the requirements of the model WHS legislation.

We were privileged to work with many clients throughout the year.  Here are a few of the interesting projects completed during the year.

INTERESTING PROJECTS

Project Due Diligence Process, Port of Melbourne Corporation. A project due diligence process was developed for Gates 2 and 4 of all PoMC projects.  This was then applied to two projects which were written up as case studies.

Monash Medical Centre Power Supply Operations Due Diligence Review, Waterman AHW.  The process tested for the catastrophic, low likelihood events (outliers) before it optimised for operational availability.

Safety Due Diligence Review.  An assessment of the health and safety risks associated with the taxi and hire car industry in Victoria was completed.

High Energy Assets Due Diligence Review, Melbourne Water.  A safety due diligence review was completed on Melbourne Water’s high energy assets especially in relation to the high and low voltage upgrade options at Eastern Treatment Plant’s Influent Pumping Station (IPS).

Z class tram life extension review.  Public Transport Victoria and Yarra Trams.  A due diligence review was completed for the Z3 Class Tram fleets for a 15 year life extension period to ensure all credible critical issues had been identified and preliminary cost estimates developed.

Port Jackson and Port Botany Pilotage SMS Review.  Being on the bridge of a cruise ship on a fine day coming out of Sydney Harbour is a joy to envied.  The case study of this review has been included in the 10^th edition of the R2A text.

E class trams project due diligence review.  Public Transport Victoria. R2A continue to be the independent due diligence advisors for the procurement of the 50 new low floor trams for the Melbourne tram system.  A case study was developed for presentation at the Engineers Australia Mastering Complex Projects conference in Melbourne and is included in the 10^th edition of the R2A text.

CONFERENCES

Richard presented at a number of conferences and seminars in 2014 and has availability for similar opportunities in 2015. Drop Richard a line if you have an event coming up.

• Construction Risk Management Summit in Melbourne
• CORE 2014 in Adelaide
• Statewide Mutual Risk Management Conference in Sydney
• EA NSW Regional Convention in Wollongong
• Electrical Maintenance and Safety National Forum in Brisbane
• Society if Fire Protection Engineers Conference on the Gold Coast
• Mastering Complex Projects Conference in Melbourne

MEDIA

R2A were featured in a number of publications in 2014:

• Near Enough Not Safe Enough (Engineers Australia Magazine. Safety feature article. January 2014)
• Engineers Australia Safety Case Guidelines due to be released (Sourceable. January 2014.
• Operations Due Diligence (Australian Journal of Multi-Disciplinary Engineering Vol 11 No.1)
• Tough times ahead for the Construction Sector (Sourceable. April 2014)
• Rise of the Precautionary Approach (Engineers Australia Magazine. Executive Engineer feature. May 2014)

EDUCATION

From an education perspective Richard delivered numerous public and in house courses on Engineering Due Diligence as well as continuing to deliver the Swinburne post-graduate unit Introduction to Risk & Due Diligence.

The 2-day joint R2A/EEA engineering due diligence workshop was very successful and will continue in 2015. This workshop is aimed at aspiring directors and senior managers.

Project Due Diligence

Each year, the R2A Board reviews the R2A practice, what it is and how it achieves.  The Board notes that the directors always feel that what they and the practice do ‘makes a difference’, not just to our clients but to the overall way business is conducted in Australia.In doing so this year, the board has noticed some interesting correlations.  The greatest part of the R2A practice over the last 10 years has been in project due diligence.  Any project to which the R2A process has been applied has been a success.  They have come in on time and budget, and to specification.  These include the procurement of Class E trams and X’trapolis trains, Eastlink, Tugan Bypass, the Marina Coastal Expressway and many others.The directors believe that this is not necessarily only due to the power of the R2A project due diligence process. It is most likely to be due to the quality of our clients. Careful customers rarely make dumb mistakes.  Adding a third party like R2A to a project review is ensuing a further prudent precaution on top of what is an already robust process.But as a result of investigations into failed projects, and listening to discussions regarding the reasons for various project blowouts and failures at project management forums during the year, another, more alarming correlation is appearing. It seems that major projects that manage risks exclusively using the formal process described in ISO 31000, the Risk Management standard, are the ones most likely to fail.Whilst the R2A practice has always understood that the Risk Management Standard of itself is unable to positively demonstrate due diligence with regard to big, rare (low likelihood – high consequence) events, R2A did not believe that the standard of itself would be the mechanism of failure, but this now appears to be the emerging pattern.The R2A directors, Gaye Francis and Richard Robinson, are presenting on Project Due Diligence with a focus on the procurement and delivery of Class E Trams, at the Mastering Complex Projects stream at the Engineers Australia Convention in Melbourne on 26^th November 2014.  For further details see: http://www.convention2014.org.au/conferences-and-events/mcp-conference/day-2-program.

Implications of the model WHS legislation post the Royal Commission into the Home Insulation Program

The consequences of the WHS legislation on electrical safety is quite startling, but not yet realised.  The legislation requires that risks to health and safety should be eliminated, so far as is reasonably practicable.For instance, a bane of electrical regulators is the home handyman working in a roof space and fiddling with the 240V conductors.  The deaths arising from the home insulation Royal Commission also spring to mind.Many of us have been replacing our lights with energy efficient 12 V LEDs. And whilst it may be unreasonable to retrospectively replace the 240V wiring in the roof spaces with extra low voltage (ELV) conductors for existing structures, it is obviously quite achievable for a new dwelling.  If all the wiring is a 12 or 24 V, the possibility of being electrocuted in a roof space is pretty much eliminated, which is the whole point of the legislation.So in the event of a death that would have been prevented with ELV wiring in a dwelling constructed after commencement of the model WHS act, the public prosecutor presumably has a duty to prosecute any officer of a PCBU (person conducting a business or undertaking) that facilitated the fatal 240V installation.  This would include officers of firms of builders, engineers, electricians, architects and building surveyors at the very least.

What is Engineering Due Diligence?

Richard was recently featured in an Engineering Online (EOL) video and answered 5 questions in two minutes on the topic of Engineering Due Diligence.

EOL is a new Online Learning Centre recently launched by Engineering Education Australia (EEA) to support the professional development of engineering related professionals across all disciplines. Registration is free for members of Engineers Australia.

WHS Disproportionality

The precautionary approach required by the model WHS act forbids, on pain of criminal imprisonment, the exclusive use of target levels of risk (tolerable or acceptable) as a method of establishing whether a situation or circumstance is safe.Amongst other concerns, this is problematic for those involved in SIL allocation under IEC 61508.  The usual comment is; how else can it be done?  Actually, it’s quite straight forward. Disproportionality in safety results from the economist’s law of diminishing returns (the pain is not worth the gain) for precautionary effort based on the significance of the risk vs the effort required to reduce it.For example, if an initial precaution reduces the risk by 99%, the next precaution can only address the remaining 1% of the risk and so on.  This means that in terms of the balance of the significance of the risk vs the effort required to reduce it, the scales thump to the ‘lets not do anymore’ side very quickly for effective precautions. It is always hard to define this point in advance because it does depend on the actual circumstances of the issue of concern.  But when considering the cost effectiveness of precautions in the context of all those available (as well as those already in place), it is generally quite obvious where to draw the line.This has always been R2A’s understanding of the meaning of disproportionality as used in case law and now the model WHS act.

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