Breaking SFAIRP down to three parts: So Far (SF). As Is (AI). Reasonably Practicable (RP)

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis break down the concept of SFAIRP "So Far As Is Reasonably Practicable" into three key parts: "So Far", "As Is", and "Reasonably Practicable".

This was one of their key take-aways from their recent Live Forum where lawyer Joseph Coleiro articulated the following:

• "So Far" refers to the notion of doing as much as possible to address a risk, rather than just meeting a target level of risk.
• "As Is" refers to the information and circumstances available at the time a decision is made, rather than considering hindsight.
• "Reasonably Practicable" is defined in legislation, considering the likelihood and degree of harm, what is known about the risk, the availability and suitability of controls, and the cost associated with implementing those controls.

The discussion details a legal case where an organisation was prosecuted for failing to implement various risk controls, demonstrating that negligence often arises from unimplemented, insufficient, or failed precautions.

Overall, the key is to break down SFAIRP into these three distinct elements and to not leave out any part, especially when it is fully defined in the Legislation or Act.

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

0:01

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robertson and Gaye Francis discuss the concept of breaking SFAIRP into three parts: So far. As is. Reasonably practicable. 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, head to the website www.r2a.com.au. Good morning Richard. Welcome to a podcast session. Good morning, Gaye. It's strange to be recording a podcast online in remote locations. We don't do this very often. I was just going to say... Yes, today's podcast looks a little bit different. So we will see how it goes from here. So today we're going to talk about breaking SFAIRP down, and this really comes from probably the key insight that we got from our live forum that we had recently from Joseph Coleiro, the lawyer who we invited to the session. And I think for me that was one of the key takeaways from that session.

And he broke SFAIRP down into three bits: 1:16

SF So Far, and then As Is, AI, and then Reasonably Practicable, RP. And we're just going to go through each of those elements today and see if we can explain that in a little bit more detail. So you'd like me to explain that? Do you want to start And I'll add as I go along. Well, in Joe's presentation he made the point that"So Far" does that mean as low or any other term that you might choose to use? And the real question is, and the example we normally sort of give, if you're flying at 30,000 feet and something goes wrong and you're possibly going to fall out of the sky, it doesn't really help too much if the pilot comes and said, yes, we actually achieved our target level of risk and safety.(And) we do realise there was more we could have done on the way down, but we didn't do it because we didn't think it was necessary, because we couldn't afford it, for example. Or some other sort of decision. The idea is you're supposed to actually do "so far" -- as much as you can. He sort of used the words that you drill down as far as you can go. Yeah, that's right. "As Is", well that is at the time that you make the decision. And part of the reason why we're particularly interested in that... I've got to give a course in Latrobe Valley to one of the power stations down there. So I thought I'd go and look up that. I don't know if everyone remembers, there was a fire in the open cut pit down there and they were prosecuted under the OHS Act in Victoria and the So Far As Is Reasonably Practicable. And when I was just looking up the prosecution from the Victorian WorkCover authority alleges under the relevant section of that Act that So Far As Was Reasonably Practicable, meaning at the time the decision was made. So before the event, it is So Far As Is Reasonably Practicable. And after the event it was So Far As Was Reasonably Practicable, meaning the is part is actually quite important. And you and I both commented that a lot of people leave the "I" out when they actually just sort of put the proposition up, where in fact once the lawyers start using the term, it's actually quite important. I think that was one of the key things also that came out of the event. There was some discussion that courts use hindsight to decide what was reasonably practicable in the stages, but that "is", "As Is", really says that hindsight is not considered. It is what the information that you have at the time and the decision you made at the time what was reasonably practicable then. Yeah, that's right. And that's popped up a number of times because what's always puzzling to us, you see from the point of view of being an expert witness after the event, the thing's gone wrong, so you're trying to dream up what could have been done if it had been done "was reasonable" and then the court looks at what the experts said and then tries to determine whether those things that were thought up by the experts with the advantage of hindsight were reasonable without that hindsight that they ought to have been thought about prior to the event. I still find it very difficult to believe that post-event doesn't have some influence on the decision making of the court, but I'm not obviously in the position to comment on that particularly. That's true. And then "Reasonably Practicable" is sort of what's written in the legislation under Section 18. And so that has five elements: The likelihood of the hazard or the risk concerned occurring. The degree of harm that might result from that hazard or risk. What the person concerned, knows or ought reasonably to know about the hazard or the risk. The ways of eliminating or minimising the risk, the availability and suitability of ways to eliminate or minimise the risk. And after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with But again, cost comes down to that grossly disproportionate tests that it goes by, it's not just: Oh it's expensive so we're not going to do it. You've actually got to consider it grossly disproportionate. Well it was interesting, as I said, I was just looking at this case because they actually were prosecuted for 14 charges originally and they got, I think, successfully the case was won on five charges. Perhaps I might just read them out because it's kind of interesting to sort see what they're actually talking about. I suppose the other point just to note is that when they were prosecuted, it was done not for two parts under Section 21 that an employer must So Far As Reasonably Practicable provide maintain employees of the employer with a working environment that is safe and without risks to health. But then Section 23, the Victorian Act also says an employee must ensure so Far As Reasonably Practicable the persons other than employees of the employer not exposed. So it was not only the people who work there, it was the community as a whole. And I think that's part of the reasons why the prosecution was taken and that they were prosecuted under two pieces of legislation, both the OHS Act and the environmental legislation and it was trial by jury and they were successfully... Convicted. For five points. I'll just go through them: Failing to perform an adequate risk assessment as to the possibility of fire from an external source. Failing to have adequate reticulated water supply. Failing to slash vegetation on the face of the northern batters. Failing to begin wetting down on the northern batters on the really hot day. And failing to maintain staffing on the mine of sufficient numbers and expertise to supress fires in a hurry. Yeah, well sure, I suppose. I think one of the interesting things about that is, and we say this in our courses, negligence arises because of unimplemented, insufficient or failed precautions or controls and three of those were failed controls. Yeah, that's right. So they were things that they should have been doing that they weren't doing well enough to protect them on the day of the fire. And I think that's really interesting that that's what they've gone down for. Well other thing was that the judge lists a whole lot of previous decisions made in different cases and sort of says quotes, relevant things and I just going through the matter curiosity and just the way one or the other judges when they were expressing the way in which you meant to go about this stuff. Hence in determining the gravity or seriousness of the defence, as in such a case, the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach. Which is rather interesting isn't it? Because remember how we always do it, so what's the credible worst case? And then we went backwards from there. It's consequence basis. It doesn't actually consider the likelihood. In the first instance. That's our perception of it. And that's the way we've always done it. And that's what we had interpreted from our experience as expert witnesses, that it's really the extent of the consequences that the first instance and then you do the likelihood versus the balance, the significance, the risk versus the effort required to reduce it, sort of comes second. When you're weighing up what the controls that you could put in place. So that's helping you with your reasonableness part, isn't it? Correct. And that's just what I was just reading, I thought well that's interesting because I mean we find it for the most part we get given cases to review and as I said, I'm giving this course at Latrobe Valley in a couple of weeks and I thought I better go and have a look to see what actually happened there because I suspect everyone down there probably knows all about it and having an opinion or review or some insight into it might be really rather useful. But I also think that it played on and it sort of crystallised and supported what Joe was saying during the forum that SFAIRP is broken into those three elements that we talked about: "So Far" -- as far as you can absolutely go. And it's not the same as all of those other definitions that we talked about. Yes."As Is" -- at the time. And then "Reasonably Practicable" -- is as defined in the Work Health and Safety legislation or OHS legislation in Victoria. So if you break it into those three, as we sort of said earlier in this podcast, leaving there "Is" out or the "I" out has implications because it's sort of saying, well, it's not at the time that the decision was made. Now our understanding is that most people think that that's inferred or the intent is remains in there of is. But it's often left out. Well the defense leave the I out when they talk about SFAIRP. And one of the things that mystified me a bit was that the environmental legislation of Victoria has been modified to adopt what we had, I think we've said it before, the SFAIRP principle, but in that particular Act it leaves the "I" out. It just has SFARP - So Far As Reasonably Practicable, not As Is Reasonably Practicable. And this is part of our experience with lawyers. One word makes a difference. Yes. So if you don't think it's significant then you just have to be careful of this and you don't want to be the test case to see whether leaving the "Is" out of your terminology has implications. Well I think the other point too is the important thing is if the Act says SFAIRP (with) "AI" then use "AI". If it doesn't say then possibly leave it out because I dunno, I think it's going to be a matter for another podcast. But one of the things that also popped up in our live forum was that one of the things that seems to happen is sometimes people delay decisions about something until it's so late. So what's SFAIRP early in the process can't get up. And that's a difficult one and I haven't thought that one through how you meant to address that one. I think that's definitely another podcast. No, absolutely right then and that's tricky. But I think that was the other key that came out of the forum, wasn't it? The legislation. And this is what we say to our clients, if the legislation uses So Far As Is Reasonably Practicable, SFAIRP, then make sure that that's what your policies and procedures and company "how to" manuals actually address and use. And that's why you've got to be wary of the Risk Management Standard, for just that reason. So these (advice) that says some of these terminologies are interchangeable, we would just say be careful when you do that because our understanding is that they're not interchangeable. That was the advice that Joseph Coleiro explained to us. He said if the legislation says it a certain way, then that's the way and to which you will be tested. Which so far as they can tell is precisely what happened with that bushfire risk matter. So I think that's all we really want to say on that, but that was one of the key takeaways. Break SFAIRP into the three categories, three parts. So Far, drill down as far as you can go. As Is, what you know at the time. And, Reasonably Practicable as defined in the legislation under Section 18. And that's why I think our recommendation that you run SFAIRP workshops is so important because, and who's in the room when you make that decision, because that's testing what you know at the time -- those three elements. Especially the "As Is". Especially the As Is part, which is not something I think we previously thought of. No. I think we understood it, but I don't know we'd ever focused on it in any particular way. I don't think we'd articulated it in the same way. So that was a very helpful articulation. So we hope our audience has also found that articulation useful and we look forward to seeing you next time. Thanks Richard. Thanks Gaye.