Control & Reasonableness in WHS/OHS Legislation

In this episode of Risk! Engineers Talk Governance, Richard Robinson and Gaye Francis discuss control and reasonableness in WHS/PHS legislation. 

They explain that the WHS/OHS legislation is a statutory statement of the common law duty of care and a defence against negligence, and that there’s two primary controls for negligence defence: no power defence (lack of control) and doing every reasonably practicable thing to address the matter. The aspect of control is built into the reasonableness decision in the legislation. 

The episode also covers:

• the importance of not getting caught up in arguments about responsibility and instead taking collective responsibility for addressing hazards. 
• Lord Atkin's question "Who is my neighbour?" and how the legal ruling relates to design process and retrospective design review. 
• the benefits of the due diligence approach in bringing key stakeholders together to collectively address safety issues. 

 The Criminal Manslaughter booklet mentioned can be found at https://www.r2a.com.au/store/p/r2a-criminal-manslaughter-directors-booklet

 For more information on Gaye and Richard’s due diligence work at R2A, head to https://www.r2a.com.au/ 

Transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss Control and Reasonableness in WHS legislation (Occupational Health and Safety in Victoria). We hope you enjoy the episode. If you do, please give us a rating and also subscribe on your favourite podcast platform. If you have any feedback or topic ideas, get in touch via admin@r2a.com au.

Gaye Francis (00:34):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Hi Gaye. We're back again.

Gaye Francis (00:38):

We are back again. Today we're going to talk about control and reasonableness in WHS/OHS legislation. And this follows on from some recent reading you've done.

Richard Robinson (00:52):

Well indeed, although it wasn't that recent because we've stuck it in the update of our "Criminal Manslaughter - How Not To Do It" booklet.

Gaye Francis (01:00):

Recent, last couple of months, let's go with that.

Richard Robinson (01:04):

But this flows from the fact that as we've commented a number of times, the WHS legislation is actually a statutory statement of the common law duty of care and as a defense against negligence. Now negligence, and again, we're just responding to what lawyers tell us, in terms of a defense against negligence, there's normally two primary controls. The first is no power defense that you didn't have control of the situation. So basically you can't be held accountable for something over which you do not have control. And the second defense was then in all the circumstances, you'd done every reasonable practical thing to deal with this matter.

(01:39):

Now, I used to wonder in the WHS legislation, they'd never talked about control. It just talked about...

Gaye Francis (01:47):

Reasonableness.

Richard Robinson (01:47):

It had to eliminate hazards so far as reasonably practicable. And if you couldn't eliminate, you've got to reduce them so far as reasonably practicable. And it wasn't until I was re-reading a book by Sherrif and Tooma. Sherrif was one of the lawyers who helped draft the legislation and Michael Tooma is sort of the guru from Sydney on this sort of thing. Just for the record, the book is "Understanding the Model Work Health and Safety Act, and this is on page 19. And the point they make is that they did consider when they were drafting the WHS legislation where they should actually have a section about control and to the extent you had control. And what they basically decided was that from the point of view of determining what's reasonable, that the aspect of control is an aspect of that reasonableness decision.

Gaye Francis (02:31):

Or test. Yeah.

Richard Robinson (02:32):

Or test. And so they built it into it. Now as we commented, I think in our last podcast or one of the other ones we've done, what happens a lot for example is that when you've got a split control, people sort of say: Well, it's your job to do it, and, no it's your job to do it, and then nothing gets done. And you have this extended argument between the parties and eventually somebody's got to say: Well, enough's enough. You've all got responsibilities, you've got to get on with it. And ultimately, obviously it's the PCBU that has to pull the plug and say, enough guys, you've actually got, we actually have to do things. You just can't sit on a problem while you argue whose responsibility it is. And that was one of Barry Sherrif's core remarks when he first drafted the OHS Act in Victoria in 2004, or his report that led to that, was that you just can't keep arguing about it. You've got to get on with it.

Gaye Francis (03:21):

So bringing the issue of who has control into what can be done when you're deciding what the reasonableness of those controls are.

Richard Robinson (03:30):

Now, what really depressed me about all this was just how ancient this problem actually is. You see, I was re-reading something about Lord Atkin, the Brisbane born British Law Lord, well actually he called himself Welsh, Welsh Law Lord, and Donahue versus Stevenson. If anyone's particularly interested, there's a university professor from Saskatchewan (Canada), law professor who was writing up (that) when they get assigned a case, the judges write out notes and so forth. And they do that because if one of them gets sick and another judge has to take over, they get the assistance of all the previous notes. Anyway, in this Atkins actually explaining where he gets his famous quote: The rule that you are to love your neighbor becomes in law, you must not injure your neighbour, and the lawyer's question, Who is my neighbour? receives a restricted reply.

(04:19):

The answer is: You must take reasonable care to avoid acts or omissions which might injure your neighbour. Who then in law is your neighbour? The answer seems to be those persons so closely and directly affected by the act, they ought reasonably to have them in contemplation as being so affected when I turn in my mind the acts or omissions, which are called into question.

(04:36):

I'm glad you're enjoying this Gaye.

Gaye Francis (04:38):

Good job! Without even any prompts, I'm impressed.

Richard Robinson (04:42):

Anyway, the point I'm trying to make though, what I found particularly interesting is that the way Lord Atkin actually describes it, that's the quote from the parable of the Good Samaritan, that the lawyer's question: Who is my neighbour? That's actually the introduction to the parable the Good Samaritan. So this is a 2,000 year old question that the lawyers are asking. And the way he actually expresses it is actually as this design philosophy which we've been talking about, you've got to take into account your acts or omissions, which are called into question, meaning after the event when it's all gone horribly wrong and your acts or omissions are being tested to see whether you had or hadn't done what you ought to have done, that's actually the design review process. So he's taking a 2,000 year old lawyer's question and converting it to a design process. And that was 1932, so it's 2,000 years ago to 1932. And it looks like we managed to get this into the Australian parliaments in the form of the WHS legislation in, well, for the most part 2010. So I guess that's a good result. It just seemed like a very long time to me.

Gaye Francis (05:46):

So what we're sort of saying is that they've always looked at it in that way, haven't they? In that what could have happened and what have you failed to do and should have done? Was it reasonable to do so?

Richard Robinson (05:58):

So you've just articulated the basis of moral philosophy, how it ought to have been, and that's basically what it's all about. So I think we've been through this one before, but there's three broad areas of philosophy. Formal philosophy, which is logic, natural philosophy, which is science and moral philosophy, how things ought to be. And that's why the lawyers and the engineers abruptly align because if you just look at any sort of design process, the engineers are designing before the event, and then the lawyers conduct a retrospective design review after the event. And that also explains if anybody's wondering about it, why engineers seem to pick on each other a lot in court. Because basically if you are doing a retrospective design review, who are you going to hire as an expert witness to analyse what an engineer is previously designed?

Gaye Francis (06:41):

Another engineer is all you can do.

Richard Robinson (06:42):

Another engineer is all you can do. You can't do it any other way. So that's what has to happen. I remember talking to one of the people that we've been associated with and asked what you're doing. He said I seem to be mostly just doing expert witness stuff, chiefly against other fire engineers. And I don't whether that's a career move that you want to do, but these things happen.

Gaye Francis (07:01):

I think just touching on that point, that the WHS legislation was trying to move away from (it being) a single person's responsible for making all the decisions. And we've touched on this in a number of other podcasts, and I think one of the benefits of the due diligence approach is that it brings all of the key stakeholders into the same room to talk these issues through. So it's almost a collective responsibility rather than a single person having to take all of that responsibility for the design.

Richard Robinson (07:32):

Which actually drags them through another sort of 2,000 year cycle. If you care about these things. Well, because you remember in the way in which human beings make decisions? The first one's you ask an expert all on the one person, we actually swapped it around because normally we used to say there was the adversarial citizen system next, and then it was inquisitorial last. But in practice, the way the history of the legal system was, the first one was sort of one person deciding, in effect, arbitrarily. That's what an expert does. And then you had an inquisitor, which then asked a whole lot of people to decide who was responsible. It seems I've got... my new in-laws, one of them is a German judge. But obviously they're trained chiefly as criminologists because they have to go around and ask people to find out things. So it's a different, that's what the inquisitor process has to do.

Gaye Francis (08:23):

And then they come to a decision by themselves.

Richard Robinson (08:26):

Well, they can get some advice, but yes, but after having asked everybody. When you get to the last approach, you get a mob of people deciding together. That's what trial by jury is. And in a sense, that's what we've just done the last couple of times we had the best available knowledge in the room. We've gone to a structured process to pick their brains and then basically held up a mirror saying, this is what you said people, is this what you meant? The line: say what you mean, mean what you say.

Gaye Francis (08:55):

We've covered this as well in a number of podcasts. The two final questions that we ask in a workshop situation: Are there any other issues that aren't on the table that we need to discuss? And further, are there any other good ideas that anybody wants to put on the table that we should consider and that sort of sign off of the collective group? As you said, we've got the best available knowledge in the room. We've taken you through a structured process. We've tried our very, very best to get it right and we have been diligent.

Richard Robinson (09:21):

We've been diligent. We can still be wrong, but we've been diligent.

Gaye Francis (09:23):

We've been diligent. That's correct.

Richard Robinson (09:28):

I didn't have any last remarks. I think it's your turn to finish up!

Gaye Francis (09:30):

You don't have any last remarks this time! <laughs>

(09:33):

So I hope you enjoyed today's podcast based on some of the comments, from Tooma. So thank you for joining us and we hope to see you next time.

Richard Robinson (09:45):

Thanks, Gaye.