Marcus Punch Pty. Ltd.
Risk and Reliability
A Critique of the Engineers Australia Safety Case Guideline 2014
In 2014 The Risk Engineering Society (RES) of Engineers Australia (EA) wrote, and published via Engineers Media Pty. Ltd., a practice note titled as follows: “Safety Case Guideline, 3rd Edition – Clarifying the safety case concept to engineer due diligence under the provisions of the Model Workplace Health and Safety Act 2011”
The guideline claims to have been prepared by a committee of the RES, reviewed by a barrister and endorsed by the RES National Committee. The general thrust of the guideline and much of the text and graphical content appears to be common with material in a separate textbook written by two (2) members of the drafting committee.
In its summary (page 6) the guideline positions itself as a tool to “positively demonstrate due diligence consistent with the requirements of the Model Work Health and Safety (WHS) legislation”. The guideline claims to adopt a precautionary approach to work health and safety using “the demonstration of due diligence as a defence against claims of negligence” (also page 6). The guideline further claims (on page 6) that: “Such a position should provide superior safety outcomes for all and offer protection against criminal charges for responsible officers under the provisions of the model WHS Act”. Further to this (on page 7) the guideline states that: “The objective of this guideline is to provide practical guidance to engineers on preparing and presenting a safety case to positively demonstrate safety due diligence consistent with the requirements of the model Work Health and Safety Act”.
In the following chapters the guideline details its ‘due-diligence’ approach to safety which, as it turns out, is a precautionary approach based on pre-emptively satisfying the principle of ‘so far as is reasonably practicable’ (SFAIRP) with respect to the implementation of risk controls (called ‘precautions’ in the guideline) to ensure safety. In doing so, this Safety Case Guideline provides a general framework for satisfying the primary duty of a PCBU, which is embodied by the SFAIRP principle.
However, the stated objective that it will allow a positive demonstration of ‘due diligence’, and the claim that it will offer protection to officers are not supported by its contents. As stated in a previous section, ‘due diligence’ is a duty to be exercised by the officers of a PCBU (Model Act, Section 27). This duty relates to strategic, structural, policy and resourcing decisions - that is, how the business or undertaking is run and how safety risk is managed in general. This is a fundamentally different duty to the primary duty of the PCBU itself (Model Act, Section 19), which goes to whether all ‘reasonably practicable’ measures have been taken to ensure the safety of workers and others against the specific hazards / risks posed by work and workplaces.
From the outset, it appears that the guideline’s ‘due diligence’ approach is actually aligned with the satisfying the primary duty of the PCBU, not the duty of the officers of the PCBU. In detailing its approach, the guideline selects an alternative definition of ‘due diligence’ from a Comcare guideline titled “Guidance for Officers in Exercising Due Diligence”: “Due diligence – in the context of work health and safety – means taking every precaution that is reasonable in the circumstances to protect the health, safety and welfare of all workers and others who could be put at risk from work carried out as part of the business or undertaking”. This definition of ‘due diligence’, at face value, appears to be more aligned with the Model Act definition of ‘reasonably practicable’ than the Model Act definition of ‘due diligence’. The rest of this Comcare guideline actually goes on to detail how officers of a PCBU may successfully exercise their ‘due diligence’ duty. Rather than focussing on the above definition, it specifically addresses how officers can comply with each element of the Model Act definition of ‘due diligence’. The Comcare guideline definition of ‘due diligence’, when viewed in the context of the rest of the Comcare guideline and the intended definition of ‘due diligence’ of the Model Act would appear to be an anomaly. Clearly though, if the duty of the officer of a PCBU is to be satisfied, the definition of ‘due diligence’ in the Model Act should be the basis of the exercise of that duty. The Safety Case Guideline therefore cannot, by definition, deliver on the claim that it will protect officers against prosecution under the Model Act, nor can it meet its objective - which is to provide for a positive demonstration of “due diligence” consistent with the Model Act.
Furthermore, with respect to the statement made on page 6 that the guideline uses “the demonstration of due diligence as a defence against claims of negligence” it is prudent that reference be made here to relevant case law. In Australian Iron and Steel Pty Ltd v Environment Protection Authority, a decision of the Court of Criminal Appeal, (1992) 29 NSWLR 497 the Court considered whether a defence of ‘due diligence’ was known to the Australian common law. The question arose in this case because such a defence is known to the Canadian common law and was relied upon by the appellant in the case. The Court of Criminal Appeal rejected the proposition and said that the defence of “due diligence” against claims of negligence is not recognised by Australian common law.
· In the Model Act, due diligence is a duty to be exercised by officers of a PCBU and is different to the primary duty of a PCBU.
· Satisfying the primary duty of a PCBU (ie. SFAIRP) does not automatically protect an officer of a PCBU from prosecution for failing to exercise their duty (ie. ‘due diligence’), and vice-versa, because these are different duties.
· Whilst due diligence is a statutory duty under WH&S law, it is not a “defence” against claims of negligence in Australian common law.
· The Safety Case Guideline may assist in positively demonstrating that the primary duty of a PCBU (ie. SFAIRP) can be satisfied.
· The Safety Case Guideline does not positively demonstrate how the duty of an officer of a PCBU (ie. ‘due diligence’ as defined in the Model Act) can be satisfied.
· The Safety Case Guideline cannot assist in providing a defence against common law claims of negligence.