The breakdown of SFAIRP: SF-AI-RP

At our recent Preventing Criminal Manslaughter workshop at the AICD in Melbourne, Australian legal practitioner, Joseph Coleiro, provided fresh insight into the SFAIRP (So Far As Is Reasonably Practicable) concept enshrined in the WHS/OHS legislation.

He emphasised that it’s all about ‘prevention’ and pointed out that a careful reading of cases and materials, including in the UK, reveals that the courts do not equate SFAIRP with, for example, ALARP (As Low As Reasonably Practicable). The mantra that you are held to, is the standard prescribed in the legislation under which you are being prosecuted. So, if it does not refer to ALARP, then ALARP does not apply. He suggests that working to a standard other than SFAIRP is courting a breach.  

This is one of the reasons that we at R2A suggest that its best to conduct SFAIRP workshops rather than ‘risk assessment’ workshops. We are never sure what is meant by ‘risk assessment’ in this context as there is a continuing tendency to say that if the ‘risk’ can be shown to be low enough, that SFAIRP has been demonstrated.

Joseph indicated that SFAIRP can be separated into 3 parts.

SO FAR

This means going ‘so far’ as you can to implement preventative controls, not ‘as low’ or ‘as far’ as you want.

At R2A we come across a plethora of terms that seem to be invoked to satisfy SFAIRP. One of the most recent is least cost technically acceptable (LCTA). We haven’t quite figured out what this means yet.

AS IS

This means what you knew at the time of and leading-up to the incident, including decisions that underpin the incident. Joseph indicates that the legislation seems clear; it is not hindsight.  

For example, R2A have noted that the Hazelwood Power Corporation Pty Ltd was successfully prosecuted by the Victorian Workcover Authority regarding the open cut fire in 2014 under the provisions of the OHS Act 2004.

The charge was that the company failed, so far as was reasonably practicable, to eliminate or reduce the risk to employees and other persons.... Bolding by R2A. That is, the judgement is relevant to the time the SFAIRP decision was made.

See: Director of Public Prosecutions v Hazelwood Power Corporation Pty Ltd (Sentence). Supreme Court of Victoria.

REASONABLY PRACTICABLE

This is as defined in the WHS/OHS legislation. It has a history of comment from the mid 1800s and that such legislation is a culmination of many decades of cases and debates at common law. Joseph asked us to think about whether it is the same as ‘reasonably possible’, ‘reasonably manageable’, ‘reasonably allowable’, or ‘reasonably achievable’ or any of the other sprinkling of terms used in other jurisdictions.

Overall, Joseph’s message was to know the WHS legislation, understand your duty, and then do it SFAIRP.

We agree.