Being Relevant, Reasoned & Concise - for your Due Diligence Argument

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss why effective due diligence arguments need to be relevant, reasoned, and concise. 

They share their frustrations with overly complex safety documentation that fails to deliver clear, defensible arguments, and explain why safety cases should be brief yet comprehensive enough to stand up to legal scrutiny. 

Drawing from their extensive experience as expert witnesses and consultants, they offer practical advice on creating effective safety documentation that not only satisfies the courts and makes sense to lawyers and Boards, but actually improves safety outcomes at optimal cost.

The episode starts with them explaining (following a question from their producer) how safety approaches shifted from target-based risk assessments to the SFAIRP (So Far As Is Reasonably Practicable) principles with the OHS Act in Victoria, and why it was necessary.

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au.

Gaye is also founder of women’s safety workwear company Apto PPE if you’d like to check out the garments at https://www.aptoppe.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 why your due diligence argument needs to be relevant, reasoned and concise.

(00:16):

We hope you enjoy the chat. If you do, please give us a rating and subscribe on your favourite podcast platform. And if you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

Gaye Francis (00:35):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Hi Gaye.

Gaye Francis (00:39):

We were just talking around topics of what we're going to talk about for this particular podcast and how we come up with the topics that we're going to do. And we're talking to our producer Megan, and she actually asked us, well what was there before the WHS legislation and the OHS legislation before SFAIRP came in. And we were having a conversation that R2A has always based their business on the SFAIRP principles in line with the Common Law. But before the SFAIRP provisions came in with the WHS legislation, there was a requirement to do risk assessment.

Richard Robinson (01:15):

Yeah, that's right. Using target levels of risk and safety. That's actually the way the legislation of most jurisdictions actually called it up. And that's why it got confusing because Victoria went SFAIRP in 2004. And you might recall we used to quantify risk assessment in a major hazard facilities and whilst the legislation basically required it to be done, that wasn't a problem.

Gaye Francis (01:34):

No, you had to do it.

Richard Robinson (01:35):

You had to do it if you wanted license to trade. But then the common law actually demanded that you use the SFAIRP approach. And there was the elevation of SFAIRP from the common law into statute law that made the change. And you'll recall one of the reasons why we became due diligence engineers quite specifically was because we sort of had to say to the major hazard regulator in Victoria, the WHS or the OHS Act in Victoria has commenced, we cannot keep doing target levels of risk and safety. We actually cannot do it. It's why we changed our name to due diligence engineers because that was the only choice you had. And what was interesting about that was remember the Victorian legislation of itself does not call up due diligence. It just demands that all reasonable practical controls are in place.

Gaye Francis (02:18):

So the two principles have been existing in or coexisting in society. Sometimes you need to do something, the target level of risk approach to get your license to trade, but it's never met your common law requirement duties.

Richard Robinson (02:32):

Correct

Gaye Francis (02:34):

And so now by changing to the WHS legislation that has changed that principle. And I think one of the key ones was in Victoria, why it did go to the SFAIRP approach was people were saying, well, we've done a risk assessment and it says that the risk is low so we don't have to put those controls in place.

Richard Robinson (02:51):

Correct.

Gaye Francis (02:52):

And something awful would happen. And the first question was asked was, well, why wasn't that control in place, which is just recommended good practise. And the comments that were coming back was, oh, we did a risk assessment and it was low so we didn't do anything.

Richard Robinson (03:05):

Well, that's quite literally. I mean in a practice, this came from machine guard because somebody's lost their arm on a press and the workplace inspector turned up and took one look at the press and said this is X, Y, Z press and recognise good practice would have this form of machine guarding (so) why isn't it there? And the answer came back, under the legislation we're required to do a risk assessment. We did the risk assessment, the risk was so low we didn't need to put the guard on it. Now the way that often happened was rather simple fact that they didn't use the machine very often, so the exposure was low, but if somebody was actually using, and if they got it wrong, they just lost their arm.

Gaye Francis (03:39):

And I think that's why we favoured the due diligence approach very, very early on because the questions that we were being asked about were high consequence, low likelihood events.

Richard Robinson (03:50):

After the event. And that's what the coroner and the regulators kept asking Why wasn't recognised good practice on this press? Why wasn't it done this way? And the answer was, well, risk assessments don't work.

Gaye Francis (04:04):

So that's sort of a bit of an introduction of why it's changed.

(04:07):

But the topic of this podcast, we want to call it Relevant, Reasoned and Concise. It comes from two aspects. It comes from an expert witness aspect, which Richard's going to talk about in a minute. But it also comes from we are seeing so much work being done around the hazard and risk space to develop a safety case or an argument for a project as to why they think everything's in place and the sheer volume of work that is being done, it doesn't appear productive and it still doesn't give them a reasoned, concise or defensible case a lot of the time.

Richard Robinson (04:48):

Correct. And that's what you need. That's what I don't get. See, there seems to be some belief somehow I've never understood this, that the courts and the parliament legislation stands aside from what engineers do. And I'm sorry guys, that's just not the way it is. You must do everything within the context of the courts, the parliaments and the legislation because that's what our system is. If you don't do it that way, you're just aggregating the entire point of an open free democratic society. And I don't think engineers believe it. I think they're all in favour of it, but they just don't seem to think about it very often.

Gaye Francis (05:22):

So the value that people are getting out of doing all of this work, it just doesn't appear to be there for the amount of work that's being done as well as the cost associated with developing something. It's stupendous.

Richard Robinson (05:36):

It's utterly stupendous and we just watch people spinning the wheels for no useful outcome. It just drives us completely crackers. And you sort of recall, we're doing some work for government now fairly urgently where perhaps we won't talk about what that is, but what seems to be a surprise to the people we work with, the speed with which we come to the heart of the matter and provide recommendations to fix it seems to take people aback.

Gaye Francis (06:02):

Yes. It's been commented on.

Richard Robinson (06:05):

By different parties.

Gaye Francis (06:07):

Correct.

Richard Robinson (06:08):

It's been rather odd.

Gaye Francis (06:10):

But by doing the due diligence approach, you're really putting a line in the sand and you're saying, okay, these are the issues that we have to deal with, safety issues that we have to deal with. These are our options, control options and precautions that are on the table. What are reasonable in the circumstances? It doesn't get much harder than that.

Richard Robinson (06:28):

Well, I think this is where it flows onto the expert witness stuff. You see, it's always been crystal clear to me. And when you're doing an expert witness case, the lawyers tend to brief you and say, read this case, this might be relevant. Read this case. It might be relevant. And one of the lines they always give you is what does an expert witness need to do to get it right. Okay. And there's been a number of judgements by different cases, McKeeter versus Sproule is one that we often use. And there's a more recent one which I've just been made aware of, which Judge Kifford in Gold Coast Council versus motorsport facility, I think it was. In that last one, there were a couple of engineers who were experts and the judge was sort of saying, I have no doubt you guys are qualified and know what you're talking about, but you didn't give me an argument I could work with. And this is part of the point about all this sort of stuff. Any argument that you put forward has to be relevant, reasoned, and concise. I think the proper term for that is cogent for those who care about the language.

(07:34):

And if it's not reasoned, clean and precise and it's muddy and scruffy and the court is spending extra time trying to understand what's being said, you're not helping the court, you're not helping your client, you're not helping anybody. And the idea that being muddy in court is going to be a successful approach to getting a useful outcome for either your client or the court or society generally. It just doesn't make any sense at all. And the whole point of a safety case is it needs to be relevant, reasoned and concise.

Gaye Francis (08:06):

And presented in a transparent (way).

Richard Robinson (08:08):

And one of the reasons we always say, if you're putting a safety case together, it's not a bad idea to have a lawyer review it because if it doesn't make sense to the lawyer, it's probably not going to make sense to the courts and probably not much sense to your board either for that matter. And guess what your board would like? A safety case that would survive post-event legal scrutiny. If nothing else, to prevent liability to said board members. And we simply don't get why the engineers aren't willing to actually consider what the lawyers require as a necessary argument. It's something we just sort of, it's...

Gaye Francis (08:40):

A little bit frustrating.

Richard Robinson (08:42):

Well, they just use a standard and say, it complies with the standard, we're good. And you're going.... No.

Gaye Francis (08:46):

And I think coming back to that, if you have that at the heart of the matter that your documents that you have to produce have to be relevant, reasoned and concise, you come up with a pretty pifthy document. It's not a big document in the end.

Richard Robinson (09:04):

Ten pages is a long report for us.

Gaye Francis (09:06):

It is a long report. <laughs> But the content is very good though, Richard.

Richard Robinson (09:12):

Concise, even.

Gaye Francis (09:13):

And I think that's the difference, isn't it? I've been reviewing some safety cases for a number of organisations and you get hundreds of pages and you had to refer to different documents within this, and I got lost really, really quickly.

Richard Robinson (09:31):

And you know the business! Can you imagine if you give it, this is all technical stuff and you can imagine going to court and trying to get the barristers and the lawyers up to speed on all this technical, I mean the laws of nature. I said just talking what's a kilogram? What's a mole? The court doesn't know what you're talking about. Then you start talking about KPA and they're sort of what does that mean?

Gaye Francis (09:58):

So for us, a really good safety case is in the tens of pages compared to it's nowhere near a hundred pages. So I think that's probably our biggest tip at the moment. Make sure all the safety stuff that you're doing is relevant, reasoned and concise. And if you can do that, you'll cut through a lot of the wheel spinning that seems to be happening.

Richard Robinson (10:22):

And your senior decision makers can sign off it, your lawyer will understand, and if it's necessary, and we hope it never is, but the courts will get it too.

Gaye Francis (10:31):

But I also think more importantly, and the reason for doing all of this stuff is you can make your place safer. You can address all of the safety concerns that are in there. And if you've got a quality assurance system on top of that safety case to say how you're going to make sure that those controls remain robust, then you do get a jump in safety improvement.

Richard Robinson (10:53):

Correct. And you will do it in an innovative way that's cost effective and all this sort of upside, downside risk stuff they talk about, you'll effectively be doing that because you'll be doing it at best cost.

Gaye Francis (11:04):

Yes. So it's the optimum, isn't it? So we hope you found that one interesting today. That's one of our difficulties that we have in sometimes reviewing some of our work.

Richard Robinson (11:16):

Yes, that may be true, but it's also true that the people who are coming to us now, like regulators and well all sorts of regulators saying, yes, we agree, we're really trying to get the engineers up to speed and they seem to be resisting us in some places.

Gaye Francis (11:30):

Correct. So thank you for joining me today, Richard, and we'll see you next time.

Richard Robinson (11:35):

Thanks, Gaye.