Could vs Should in Workplace Safety

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss Could vs Should in Workplace Safety. (Thanks Nick for your email, case reference and questions.)

They explore the critical distinction between what "could" have been done versus what "should" have been done in workplace safety, sparked by the SKM Services case against Magistrates Courts of Victoria, and discuss how experts often use hindsight to determine what could have prevented an incident, whereas courts must assess what was reasonably practicable with the knowledge available at the time.

Key take-aways include:

• The danger of hindsight bias in safety assessments
• Why documenting decisions not to implement controls is crucial
• The importance of collaborative risk assessment workshops over single-person sign-offs
• How due diligence protects both engineers and directors from liability
• Why safety decisions must be regularly reviewed as technology and circumstances change

Richard and Gaye reiterate that while you can't always be right, you can always be diligent—and proper documentation of your decision-making process at the time is your best defence if something goes wrong.

Article reference for SKM Services Pty Ltd v Magistrates' Court of Victoria & Anor [2019] VSC-460: https://www.claytonutz.com/insights/2019/august/court-clarifies-the-meaning-of-reasonable-practicability-in-ohs-after-finding-a-magistrate-has-misstated-the-test

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au, where you’ll also find their booklets (store) and a sign-up for their quarterly newsletter to keep informed of their latest news and events.

Gaye is also founder of Australian women’s safety workwear company Apto PPE 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 Could versus Should, which comes from a listener's feedback, and we thank Nick for your thoughtful email.

(00:17):

We hope you enjoy the chat. If you do, we'd love you to give us a rating and also don't forget to subscribe on your favourite podcast platform. 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 (00:36):

Hi Richard, welcome to a podcast session.

Richard Robinson (00:39):

Good to see you back again. Gaye.

Gaye Francis (00:41):

Yes, we just titled this one Could Versus Should, and we have been asked Could versus Should what? But we'll hopefully come to that as the podcast continues. And it really comes out of an email and submission that was sent to R2A by Nick. So thanks Nick. And he pointed us in the direction of a case that came out, which was SKM Services Proprietary Limited versus Magistrate's Court of Victoria and Anor. And it's a determination relating to reasonably practical and there was a lot of discourse around or discussion around the words could versus should. And he's actually pointed us to an article by Clayton Utz, and we'll put that on the bottom of this podcast as well, which has a really interesting discussion about a court making a decision of what could have been done versus what should have been done.

Richard Robinson (01:40):

Well, it was a magistrate's court and it got overturned on appeal. That's the point. And that distinction and the drawing out of that distinction was pulled out. Now we found it interesting because we obviously to give these sort of briefings and it's been based on a lot of legal input that we've been given. And it's probably fair to say as engineers we just sort of hold up the mirror and say the words, but sometimes not necessarily understanding exactly why the lawyers are telling us that way. And this particular one pops up because, and this is just the way we normally say it in our courses when talking about common law action in particular. You see something bad's happened and what happens is that all the experts pop up after the event. And with the advantage of hindsight, the experts say what could have been done if it had been done would it've stopped it going wrong. And as we point out, being an expert with the advantage of hindsight, is not that hard.

Gaye Francis (02:26):

No. You can usually figure out what should have been done

Richard Robinson (02:28):

Pretty obvious after the event, what could have been done, right? The court then determines the trial judge or jury then determines whether what the experts dreamed up after the event with the advantage of hindsight were reasonable in view of what was known at the time the decision is made. Because the court's not meant to use hindsight. It's meant to say, well, in view of what you knew at this time, what was reasonable for you at that time? And so this is where this test of reasonable practicability all comes in. Now, the magistrate's basically being criticised because the experts came up with what could have been done and possibly went too far in saying what could have been done with the knowledge of hindsight, should have been done in foresight, in effect.

Gaye Francis (03:11):

With the information that was known at the time.

Richard Robinson (03:14):

Well, that's the point. The appeal was all about saying, but we couldn't have known that with the knowledge we had at the time. And so the question of what should have been in place as opposed to post-event what could have been in place causes the confusion. And when you have a magistrate being overturned, I mean, we're engineers, okay? We don't spend our life in court. We just bob up every now and then and help.

Gaye Francis (03:37):

For some of these cases.

Richard Robinson (03:38):

And we always make the point that if you're an organisation, I mean our preferred modus operandi for any consulting work we do, which sort of nonplus is quite a few people to say, well, here's what we believe the process ought to be. So what we want you to do is to get your lawyers to agree in advance that this is the right way to do it. You might recall we did the hazard and risk analysis for the EIS for Western Sydney Airport. We weren't going to touch the job till the Australian government solicitor agreed with our approach.

Gaye Francis (04:08):

So it comes back to that due diligence and governor's approach, doesn't it? And I always say to our clients, I think it's more important to document why you're not going to do something as to why you are going to do something. And that leads to that reasonably practical sort of argument at the time. This is the knowledge we had, these are the constraints we were working in. These are the controls that are available at the time. And these are why we're going to do these ones and not these ones.

Richard Robinson (04:35):

And that's why we always make the point that at the end of your workshop session, and that's why you can't go doing risk assessments and isolation by one person just signing off on a target level risk or something. It's got to be a workshop group where you have assembled the best available knowledge you can in the room. You've gone through a structured process to work out what the issues of concern are and what the possible controls could be. And then in the circumstances you work out what should be.

Gaye Francis (05:05):

So you're really putting together your pre-court argument if anything happens to go wrong.

Richard Robinson (05:13):

Yeah. That's what due diligence is about. Because due diligence is not an engineering concept, it's the legal concept and that's the whole point. But the really important thing is that designers have to do this now, and if the designers get it right, then your directors by-the-by who are generally happy with the outcome, but are protected as well from this criminal manslaughter business, which obviously absolutely the liability aspect. Which I mean if you talk to an engineer, that's the secondary aspect. But if you're a director, perhaps not.

Gaye Francis (05:40):

Probably your primary aspect.

Richard Robinson (05:42):

And that was the other point we made to those young engineers. Any design that you do or any work that you do, you do it in such a way that you positively demonstrate due diligence, you're worth your weight in gold to your organisation, and those directors are really pleased to see you. It's really getting right.

Gaye Francis (06:00):

So we say this as well a number of times, you can't always be right, but you can always be diligent. So it was an interesting discussion and that being highlighted in this particular paper that was sent through to us about that could and should, the differentiation between the two.

Richard Robinson (06:18):

And the fact that the engineers have a hard time, well, obviously magistrates get it wrong too, and they've done a lot more legal training than we have.

Gaye Francis (06:25):

True. But if you go down the due diligence approach that we suggest you do and you do document why you are not going to do something at the time.

Richard Robinson (06:33):

And you wave goodbye to your lawyers when you're finished, it's a worthwhile thing because if the lawyer gets it, and we sort of say this, lawyers don't like signing off on things, but if the lawyer sits back and looks relaxed with what you've done...

Gaye Francis (06:45):

They're usually comfortable.

Richard Robinson (06:46):

They're comfortable they can explain it in court if they need to after the event and you've been diligent. Whereas if your lawyers sits forward and looks anxious, and that will probably be the case, we've got a single designer just signing off.

(06:57):

As we've said in the past, we're a bit wary of the registration of engineers. I mean Engineers Australia and so forth wants it from the point of view of enhancing the reputation of engineers, this, that, and the other thing. But when we look at it, it does seem to have the overtones of this makes it easy to get an engineer -- it's a blame thing, if the engineer is willing to sign off at it. And you might recall that job, which perhaps I won't talk about, where we got hauled in when there's a fight between the insurer and the client, and the lawyers turned up, and two sets of fire design engineers turn up. And we sort of went through the due diligence obligation, the WHS Act, and both parties have to understand their duties and all the rest of it. And the lawyers agreed that was right, and therefore the design concept was put forward, which the engineers could sign off on. Otherwise the engineers were required to sign off on the whole decision making process, which they simply weren't in a position to do. Remember one of those engineers said: It's a good thing you guys turned up, we were going to walk.

Gaye Francis (07:52):

Yeah. So back to all of that stuff, it's a governance process, isn't it? So making sure all the key stakeholders that are involved that it's a collective decision is made for the benefit of safety or all parties.

Richard Robinson (08:06):

Disproportionality for the benefit of safety.

Gaye Francis (08:09):

I will just say though, that should and could, one, I think you have to be careful that it's not just a decision made now, especially if additional controls seem to be not reasonable at the time. Those controls need to continue to be tested as time goes on.

Richard Robinson (08:26):

Yes. Particularly if ones sort of was on the cusp.

Gaye Francis (08:29):

Yep.

Richard Robinson (08:29):

And you said, well, it's not reasonable now, but given another couple of years, particularly where technology's going, it may well be.

Gaye Francis (08:35):

So you have to keep testing those decisions or so far as reasonably practicable decisions and document. But we would recommend documenting why you're not going to do something would help with that should and could argument.

Richard Robinson (08:50):

Yep.

Gaye Francis (08:51):

All right. Thanks for joining us today, Richard, and we'll see you next time.

Richard Robinson (08:55):

Always a pleasure, Gaye. And yes, you should listen to one of your podcasts.

Gaye Francis (08:59):

<laughs> I promise. One day.