Deficient justifications for controls or options rejection used in SFAIRP arguments

Disclaimers:

• This article is targeted towards the Victorian transport industry (in Australia).
• Usage of the content of this article will need to be assessed by the reader and at their own risk.
• Opinions expressed in this article is my own and is not representative of any organisation or body.

I have complied a list of commonly used arguments that is considered as deficient. These were used in Risk Assessments or Options Assessments to reject safety controls and available options. I would caution on using any of these reasons as justifications for SFAIRP claims.

Insufficient Budget

An insufficient budget is not considered an acceptable justification. There should be no mention of the available funding as a constraint being used as a reason.

The question of what is reasonably practicable is to be determined objectively, and not by reference to the duty holder’s capacity to pay or other particular circumstances. A duty holder cannot expose people to a lower level of protection simply because it is in a lesser financial position than another duty holder. If a particular duty holder cannot afford to implement a reasonably practicable risk control, the duty holder should not engage in the activity that gives rise to that hazard or risk.

ONRSR Guideline: Meaning of duty to ensure safety so far as is reasonably practicable – SFAIRP

The question of what is reasonably practicable is determined objectively, not by reference to the particular PCBU’s capacity to pay or other individual circumstances. A PCBU cannot expose people to a lower level of protection simply because it is in a lesser financial position than another PCBU facing the same hazard or risk in similar circumstances. If a PCBU cannot afford to implement a control measure that should be implemented after following the weighing up process set out in section 18 of the WHS Act, they should not engage in the activity that gives rise to that risk.

Safe Work Australia: How to determine what is reasonably practicable to meet a health and safety duty

Cost to prove SFAIRP outweighs the Risk

The cost involved in producing the due diligence documents cannot be used as a reason not to perform the necessary due diligence. The duty imposed to ensure (and therefore, be able to demonstrate) reasonably practicable is a legislative duty of care. This cost cannot be added and considered into the Safety Cost Benefit Analysis (SCBA).

Cost to rework or back-track

The cost involved in reworking or back tracking cannot be included into the argument nor added or considered into the SCBA. As the project had not noticed the issue earlier, this is considered as poor planning and can be argued as negligence. This is especially so if the project has proceeded at risk without getting the appropriate approvals.

Sometimes, situation happens or changes to circumstances results in discovery of additional significant hazards or controls. In this case, the project must be able to demonstrate that appropriate due diligence had taken place throughout the past life-cycle phases of the system delivered by the integrated safety organisation of the project, including information that was relied upon for each sub-contract (refer to 'Not in Scope' described below). This includes evidence that progressive safety assurance has been accepted at each stage gate review, and the continuity of the SFAIRP position has been maintained throughout the project phases. The safety case must explain in detail how this has happened to serve as the reason to reject the control or the option. Other controls to mitigate the new risk must also be identified and accepted for implementation. This situation would be an exception and require significant evidence for a defensible position that the project has taken appropriate due diligence.

Not fitting within schedule

One cannot argue discounting an option that is safer because of constraints to the schedule. This argument also includes the premise that there is no sufficient time left to implement a control. The planning of the project should have provided for the control early in the development stages. This is considered poor planning and can be argued as negligence. This is especially so if the project has proceeded at risk without getting the appropriate approvals.

In the situation where changes to circumstances results in discovery of additional significant hazards, the exception position as described in the 'Cost to rework or back-track' section will apply.

Not required by Standards or Code

Just because the control is not mandated, does not mean that it is not reasonably practicable. The intent of SFAIRP is to demonstrate that it would be unreasonable to reduce the risk more, and not to just achieve all that was mandated.

In ONRSR's Guideline on the 'Meaning of duty to ensure safety so far as is reasonably practicable', ONRSR states that:

Equipment to eliminate, or if this is not reasonably practicable, to minimise a hazard or risk is regarded by ONRSR as being available if it is provided on the open market, or if it is reasonably possible to manufacture it. A work process (or change to a work process) to eliminate, or if this is not reasonably practicable, to minimise a hazard or risk is regarded by ONRSR as being available if it is feasible to implement.

and that:

A way of eliminating, or if this is not reasonably practicable, of minimising a hazard or risk is regarded by the ONRSR as suitable if it is effective in eliminating or minimising the likelihood and/or degree of harm of a hazard or risk; does not introduce new and higher risks in the circumstances; and is practical to implement in the circumstances in which the hazard or risk exists.

The required assessment to achieve a SFAIRP outcome, is to assess all the known and foreseeable 'available and suitable' ways (regardless of whether it is mandated by code or standards) and present when it is no longer effective to further reduce the risk.

Not part of Standards Baseline (including newer versions of baselined Standards or Codes)

Just because a newer and safer code is not within the Standards Baseline does not mean that it is not reasonably practicable to use the newer and safer code. In the case of BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008], the Court found that the engineer was negligent and liable despite the engineer using a current code, albeit an older one. The engineer knew that the code was under review.

The Court also held that the existence of another Standard that would have mitigated the risk and disregarding it, is not reasonable when the risk is foreseeable and the knowledge of the existence of the standard is present. It may be appropriate to apply the standard that is more conservative, and care should be taken to identify the differences to achieve an informed state to apply the safer requirement.

This case highlights the difference in application between disciplines. While a Standards Baseline is good project management practice to manage scope creep, it is an unacceptable practice when it is about safety.

The differences between the newer standard or the standard that was not in the baseline and the current baselined standard needs to be assessed for safety requirements, and assessed for risk. This again, needs to be managed SFAIRP. Differences that are not safety related can be managed according to project management good practice.

Compliance to other legislations

The compliance to another legislation cannot be at the cost of increasing the profile of safety risk. One cannot argue to make something more dangerous so that another legislation can be met.

The first demonstration must be that all avenues to mitigate safety risks is exhausted, before the substitution of a lower safety risk to replace the higher safety risk is made.

Not in Scope

One cannot argue that because an available and suitable option is not within the scope of the work, it is discounted as an option. This argument is effectively a cost argument, and an insufficient budget is not considered an acceptable justification. The argument in this case, needs to be made that another suitable option, which may include other forms of safety controls to mitigate the risk, would lower the risk enough, such that the investment cost of the option is no longer proportionate to the resultant reduction of safety risk, via the means of a SCBA.

In the case of Brickhill v Cooke [1984], the Court held that the engineer's duty of care in relation to negligence existed alongside the engineer's contractual duties. The Court also found that it is not in accordance with negligence doctrine to delimit the duty of care expected of a professional to ensure safety.

What is required to be done is to outline the necessary scope of work that needs to be done to ensure safety SFAIRP and escalate the matter to the Client for expansion of scope. Note that even if the Client decides not to proceed or provide the necessary funding, the Professional may still be held liable for negligence by the Courts as they still hold the Duty of Care to ensure safety SFAIRP.

Another common occurance is when the Concept Design has already discounted the control in a SFAIRP manner and passed the constraint to the next phase of the design, resulting in a limit of scope. In this scenario, the SFAIRP evidence from the previous phase of the project should be carried forward to the next phase as justification. This is why the position of SFAIRP needs to be maintained at every phase of the project and not accrue technical debt.

Not a stated requirement

Not having a stated requirement is unacceptable as a reason if the Designer was informed on the intended objectives and usage of the commission. In the case of Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975], an expert structural engineer was engaged to design the structure of a warehouse. The engineer was made aware that loaded fork–lift trucks would regularly cross the first floor of the warehouse and was also aware of the possibility of vibration caused by the trucks. The first floor cracked due to the vibrations.

It was held that the engineer had failed to design the floor with sufficient strength to withstand this factor. The court held that the engineer had breached an implied term that the design would be reasonably fit for purpose for the use of loaded fork–lift truck.

This case shows the importance of developing the Operations Concept and Maintenance Concept document to provide the necessary intended usage information as critical inputs to the Designers.

Was done in the past

One cannot solely refer to past safety case as the SFAIRP argument. Previous Safety Case may be referenced and compared with current situation but is not automatically acceptable. The argument made in the past may no longer be valid in the new circumstances. While it is a feasible argument to refer to past safety, consideration of the environment, circumstance, new technological developments, and operating conditions will need to be made, with evidence, that the current premise remains the same as the previous premise.

Existing risk in the network

One cannot argue that because there is a similar existing risk in other parts of the network, that the current risk is acceptable. By including another instance of the risk, the overall safety profile of network has increased in likelihood.

To illustrate, consider a building containing asbestos insulation. The presence of existing asbestos does not justify its continued use in subsequent renovations. Introducing further risk, even in a separate area of the building, is unacceptable.

SFAIRP is about demonstrating the reduction of risk to a reasonably practicable state, and not about the acceptance of risk. The argument for existing risk can be made to Accountable Officers in accepting the risk, but it does not conform to a SFAIRP claim.

Listing controls and calling it SFAIRP

It is not a SFAIRP argument to list all the treatments identified in Hazard Logs or Risk Assessments and imply that they amount to a SFAIRP justification. There needs to be an argument on why all these treatments, taken together, amounts to represent SFAIRP explicitly. See ONRSR’s Safety Message on Risk Assessments (https://www.onrsr.com.au/safety-essentials/safety-messages/safety-message-risk-assessments-undertaken-as-administrative-tasks).