SFAIRP: Moral Imperative vs Commercial Reality

Risk! Engineers Talk Governance
Season 7, Episode 1

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss this season’s theme of SFAIRP: Moral Imperative versus Commercial Reality and that SFAIRP is hard. 

They discuss the tension between the legal and moral weight of “so far as is reasonably practicable” and the commercial pressures organisations face every day, including:

• How SFAIRP is an objective test, but objective to whom, and determined when?

• Why leaving the "i" out of SFAIRP matters more than you might think.

• The danger of delaying design decisions until elimination options are no longer viable.

• The misuse of HAZOP as a substitute for early-stage critical hazard thinking. 

• Why the WHS legislation may actually be trying to bring creativity and innovation back into engineering.

The season will also cover topics on AI and the human effort required to verify it, the integration of the risk curve, risk language and the creeping rigidity in how terms are used, resilient and adaptation strategies.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Season 7 of Risk! Engineers Talk Governance. In this first episode, due diligence engineers, Richard Robinson and Gaye Francis discuss the overall theme of the season: SFAIRP, Moral Imperative versus Commercial Reality.

(00:20):

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

Gaye Francis (00:43):

Hi Richard. Welcome to another season - Season 7 of our podcast.

Richard Robinson (00:47):

Happy New Year Gaye!

Gaye Francis (00:49):

Yes, we're well and truly in the thick of it, aren't we? We just had a discussion this morning about what we were actually going to call this season after six seasons already, and is there anything else that we can particularly cover? And I think one of the key things that came out of our (live forum) event last year was the difficulty or the challenges that SFAIRP brings to an organisation. So we've titled this particular season SFAIRP: Moral Imperative and Commercial Reality. And I think the key out of this was SFAIRP's hard!

Richard Robinson (01:26):

SFAIRP's hard because the first part of it is, and that's what our lawyer at our (live event) basically said: It's so far as you can, not so far as you want, not so far as you think you can afford or your client can afford, it's so far as you can. And that's a moral imperative in a very Kantien (philisophical) sense. We might have a chance to talk about it in this podcast season.

Gaye Francis (01:49):

We might. We might. Some of your favorite rants that you like to go and talk about.

Richard Robinson (01:53):

Yes. We might get into the groundwork of the metaphysical morals that he wrote in order to clarify and explain to people what his critique of pure reason was actually about.

Gaye Francis (02:03):

It's alright, audience. I'll give you a warning before we do that podcast.<laughs>

(02:10):

And some of the things that we've been asked questions about is; and part of that is testing the optimum bias. A couple of times we got asked during the event was, we don't actually have the money to do this, so how do we justify not doing something? And then how much money do we need to spend on it? So as we said, the moral imperative versus the commercial reality, there's a lot of things that input into that decision.

Richard Robinson (02:43):

And we've heard lots of lawyers who said that, and it's one of those questions I'm always puzzled about. They keep saying that SFAIRP is an objective test. Now, objective to whom? Because if you say you have a limited amount of money and you just can't afford it, that I would've thought on one level was an objective test. But when they mean objective tests, they mean objective tests as determined by the courts. And the legal system.

Gaye Francis (03:04):

After the fact though.

Richard Robinson (03:05):

Well, very often after the fact, although the lawyers obviously think it's an objective test before the fact too, and that's from a design imperative. But that then led onto, which we've seen a fair bit of, is that during the design process, they don't consider the elimination option early in the design process when obviously it's the most cost effective.

Gaye Francis (03:25):

Correct.

Richard Robinson (03:25):

Because if you come up with a possible elimination option when you get down to the final design.

Gaye Francis (03:30):

It's never going to be SFAIRP.

Richard Robinson (03:31):

Because it's just going to be too expensive to go back and redesign the whole thing.

Gaye Francis (03:35):

I think that is another topic for podcasts is that whole safety and design and what that actually means. I think it's almost got to the point of like HAZOP and HAZID and things like that. It's got a terminology around it and a particular process that people say, this is the safety and design process or applicational technique, rather than it being a process to think through what all those high level critical hazards are.

Richard Robinson (04:06):

Yeah. Well, I think the point, I don't know if it's going to be quite deliberate, but if you have that view that HAZOP and HAZOP, from our point of view, is late in the design process when design's more or less fixed and you're testing in a very real sense more for operability than critical hazards, which you should have dealt with on the earlier in the design.

Gaye Francis (04:23):

Well long ago.

Richard Robinson (04:24):

But you sometimes start to think that it's actually been a deliberate... We don't know that. And we're not saying that's the case, but you sometimes get the feeling that it might've been deliberate because they knew that if they did think about it early, they would've had to have done it another way.

Gaye Francis (04:41):

Other things about it. And I think that's another one, isn't it? Delaying decisions so that an option is no longer SFAIRP. And we've seen that in a number of cases and organisations are grappling with that or engineers are grappling with that of we delay the decision so long, and as you said, the design's moved on from being preliminary design to more a detailed design. And of course you're never going to get ... Well, very rarely do you get the elimination option up at a detailed design stage.

Richard Robinson (05:12):

You might recall our experience with the Australian Government solicitor and Western Sydney Airport and whether it should be in Western Sydney at all.

Gaye Francis (05:19):

Yes, you were game to ask that question. Should we move the airport? And the answer was very quickly, no, it is where it is and that is it.

Richard Robinson (05:27):

But the Minister basically decided that, which the Minister's entitled to do. But if you're just doing it from an engineering viewpoint, you wouldn't put it there, you would put it in Canberra.

Gaye Francis (05:35):

So there's an elimination option. One of Richard's favourite things, and I think a topic that's becoming more and more relevant, and we're seeing more of it is AI and the human effort required to verify AI and what it does for you. So I think we'll do a session on AI.

Richard Robinson (05:57):

Likely the next session, I suspect, if you haven't been preparing, just to give you an indication of how ill prepared for these things, Gaye is, she's got a holiday in the next holiday in New Zealand booked, but she hasn't got accommodation yet.

Gaye Francis (06:10):

Now you're really telling all my secrets. I don't know about that. People have said they like the naturalness of our podcast, Richard, how they just flow. Now I'm stuck for words because you tripped me up.

(06:24):

Another thing we're going to talk about is ignorance is endemic.

Richard Robinson (06:33):

That actually flows onto ... Remember I told you when I was running some courses at RMIT and I was running an undergraduate courses in, I think it was the maker and the made, I think it was, RMIT had this thing about they should humanise engineers in some way by giving them one subject. And I remember one of the fourth year students looking at me if we'd done this blast, it was a fourth year engineering student because we had combination of art students and all sorts of interesting people in the room. And one of the fourth year engineering students looked at me and something along the line, "You might all be born creative, but you can be trained out of it". Which I thought was a reference on engineering education.

Gaye Francis (07:08):

And maybe that's what the SFAIRP provisions of the WHS legislation is trying to do. It's trying to get that creativity and innovation back into engineering and into design.

Richard Robinson (07:21):

I can remember as a mechanical engineering student, design was always about creativity. And you have these sort of kids coming up with absolutely weird ideas like some guy was having a hard time for his project for the year and you know how automatic sprinklers normally do a circle.

Gaye Francis (07:36):

Yeah.

Richard Robinson (07:36):

But most yards are square.

Gaye Francis (07:38):

Yeah.

Richard Robinson (07:39):

He designed a sprinkler that would actually do a square.

Gaye Francis (07:42):

That's sort of cool. I've never seen one.

Richard Robinson (07:44):

And that's such an obvious thing to do. And this guy just dreamed it up in a week.

Gaye Francis (07:49):

He didn't obviously have the marketing tools that he needed to keep it going though.

Richard Robinson (07:53):

I have no idea what happened to him.

Gaye Francis (07:55):

Okay. That little section may need to be a little bit edited by our producer, and now we'll continue.

(08:03):

A couple of other topics that we're going to talk about, and it sort of fits in this whole SFAIRP moral imperative and commercial reality. It's about integration of the risk curve.

Richard Robinson (08:15):

That's right. Well, mathematically how to show it, but basically if you spot the dot on a typical risk curve, the integrated area under the risk curve is probably a factor of two at least. Greater than that, you've understated the risk badly.

Gaye Francis (08:29):

Yeah. And I think ... I've gone blank. What was the last one that we said?

Richard Robinson (08:35):

That rolls onto risk language, words, numbers, and pictures and so forth, which is the threat barrier diagrams and so forth, because that's really the question of large language model AIs, which I think is probably the next (episode) we're going to do much to Gaye's surprise.

Gaye Francis (08:49):

It is. But I also think that there's additional confusion coming into the language of risk and it's becoming more ... Robust isn't the right word, but people are using certain terms to only mean certain things. And so there's a terminology and a way that people are using the risk language that hasn't got any discussion in it anymore.

Richard Robinson (09:17):

That's right. I agree. And it's particularly frustrating. I mean, our legal system is using risk in a peculiar way, as far as we can tell, but that probably needs enlarging on too. But again, that's probably that session on risk language will be quite an interesting session.

Gaye Francis (09:32):

I think just going to the language thing, and that was one of the key takeaways from our event last year, especially when Joe (Coleiro, Lawyer) talked to us: If you're going to do a health and safety review in line with the WHS and OHS legislation, make sure you use the terminology that's in the legislation.

Richard Robinson (09:50):

Correct. There's no point using any other term.

Gaye Francis (09:53):

And we're even talking about the simple thing of leaving the "i" out of SFAIRP. We see a lot of people just summarise it as SFARP without the "i". And Joe really went into, and we've been into the importance of the "i" in another podcast (Season 6 Episode 8).

Richard Robinson (10:12):

Yeah. It's "as is", the time at which you make the decision. But again, and that's the reason why people can do something late in the design process, which means at that time it's no longer. Whereas if you'd done it earlier, it would have.

Gaye Francis (10:24):

Exactly. So I think with our podcast sessions, like everything, we're going to take some of the questions that we've taken from the event. Also, Richard and I do a lot of courses through Engineering Education Australia. We get a lot of questions in that. So we sort of want to try and make this (season) more about the practical problem solving. In our newsletter, we've got a little corner called Q&A with R2A. And so this is sort of an extension of that. And we've also had some nice notes come back in our email system and Richard got one on the weekend from the AMPI Pilots inviting him to deliver a conference paper for their upcoming conference in Darwin, but saying that he finds our podcast... What was it? "Our excellent podcast" and enjoying it very much. So if anyone else has got any questions out there, we would be happy to receive them either via the chat or via email.

(11:20):

So I think there's a lot to unpack in this season, just recapping it. SFAIRP the moral imperative versus the commercial reality. And I think that there's some headbutting in that space right at the moment and it's a very difficult problem to solve for organisations.

Richard Robinson (11:43):

Yeah. I think I've got one currently I'm trying to sort out and I think the client's not going to be very happy as a result, but that's all I can do.

Gaye Francis (11:49):

Yeah. And that puts engineers in a very, very difficult position as well because you've been asked to do something and paid to do something by a client. And the discussion about, do engineers have to walk away from some of these questions?

Richard Robinson (12:04):

Yes.

Gaye Francis (12:06):

That was very short and sharp. So we're looking forward to delivering this season. We hope you can join us next time, but thanks, Richard, and we'll see you soon.

Richard Robinson (12:15):

Thanks Gaye.

SFAIRP Complexity & Pressures for Stakeholders

Risk! Engineers Talk Governance Podcast
Season 6, Episode 1

In this first episode of Season 6, Risk! Engineers Talk Governance, due diligence engineers & R2A Co-Director’s Richard Robinson and Gaye Francis discuss the pressures and complexities different stakeholders are having with SFAIRP.

They follow on from the theme of Season 5, “Difficult Conversations Engineers Need to Have”, how it generated discussions and comments, and determined holding an in-person event with speakers from different perspectives and professional backgrounds - a lawyer, an architect, and two engineer. 

Richard and Gaye highlight the need for a cooperative and collaborative approach among stakeholders, rather than a competitive one, in order to effectively implement SFAIRP. They also examine the challenges that arise when the commercial imperative conflicts with safety considerations, how independent consultants can facilitate these difficult conversations around SFAIRP, and reinforce the importance of all key stakeholders to be involved. 

The Live Forum discussed (“Preventing Criminal Manslaughter – Understanding & Implementing SFAIRP”) was held in October 2025.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Season 6 of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the complexity and pressures stakeholders are having with SFAIRP.

(00:16):

We hope you enjoy the chat. If you do, please give us a rating and subscribe on your favourite podcast platform.

(00:23):

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.

(00:33):

You can also find details for the live forum they discuss in the podcast description. (Link: https://www.eventbrite.com.au/e/preventing-criminal-manslaughter-understanding-implementing-sfairp-tickets-1653602251849)

Gaye Francis (00:39):

Hi Richard. Welcome back to Season 6 of our podcast.

Richard Robinson (00:42):

A genuine surprise, I think!

Gaye Francis (00:44):

It is a very genuine surprise, Richard, I think, yes. 54 odd episodes so far.

Richard Robinson (00:51):

And we even upgraded our technology to suit.

Gaye Francis (00:54):

We have! So very excited to be back for season six. And I think we are going to lead on from what we did in season five. In season five, we sort of titled "Difficult discussions that engineers need to have", especially in the safety space and project space. And I think one of the interesting things from the last season was it generated a lot of discussions and interesting comments.

Richard Robinson (01:17):

It did. Which was a surprise to us. A further surprise to us.

Gaye Francis (01:20):

Correct. And we've actually just released our latest newsletter and in that newsletter we've got Q&A with R2A, which might become a regular feature I think. And so what we were thinking this season we would do would be to sort of build on the season five and those difficult conversations that engineers need to have or discussions that engineers need to have and take into account some of those questions and comments.

(01:46):

But it also motivated us, I guess, to hold an in-person event later this year in (22) October (2025). And we were actually having a discussion this morning about what this event was going to be called and what are some of the key things that we're going to talk about in it. So we thought that might be an interesting first podcast for our season six. So we might just go on with that. So do you want to give a little bit of an overview of who we've got coming to the podcast, oh, sorry, to the in-person event, and then we can have a discussion about how we were trying to talk about the stuff that we want to include and then some of the difficulties that engineers, architects, and lawyers are actually having with the idea of SFAIRP.

Richard Robinson (02:30):

Well, yes, and in fact that means we had to have in effect three core speakers with you acting as the facilitator.

Gaye Francis (02:36):

Correct.

Richard Robinson (02:36):

And resulting in your takeaways at the end of it all. But we needed a lawyer. And so we've got Joe Coleiro, who is the former, well, Wing Commander, basically, and wrote the Defense Aviation Safety Policy, which defined SFAIRP in a very precise way, far more precise than I think we've see most lawyers define. We first came across Joe when they invited us over to test our understanding of SFAIRP with his way of writing it up. And if it wasn't inappropriate, I probably would've given him a big hug at the time.

Gaye Francis (03:07):

Probably inappropriate, probably still inappropriate now. But, you know!

Richard Robinson (03:12):

He made some very interesting points because, and I have read this many times before where you just made the point, because in the "Understanding WHS Legislation" by Tooma and Sheriff, they basically make the point that SFAIRP is meant to be objective. Where using target levels as risk and safety is usually a personal thing that somebody has decided: this is the criteria we're going to use. And there's a whole lot of other interesting things flow from that.

(03:36):

The other person we've got is Dr. Frank Stocks who's an associate of ours who's an architect with a PhD in CPTED (Crime Prevention Through Environmental Design) who's busily designing stuff for the Auckland Airport and a few other things. And obviously the NZ legislation's got this SFAIRP in there and he's getting peculiar, frustrated with engineers who have to actually design to this standard and don't seem to really understand the significance of it. And so we felt it was appropriate to get...

Gaye Francis (04:04):

Three different (perspectives).

Richard Robinson (04:05):

And obviously I was going to expand on what David Howarth, the Professor of Law and Public Policy, when he came out to speak to us, when we invited to Melbourne just before COVID, and he sort of explained his understanding of law in a way that works with engineering because his presentation and book was actually "Law as Engineering, that is, Agents of Change". Whereas the lawyers are focused on the social environment and the engineers are focused on the physical environment, but they tend to overlap in the safety space, which is where it gets really complicated, which is what Frank is basically complaining about. And which in the aviation sector, which is what Joe is mostly remarking about, all needs to align. And I think that's something that's got us puzzled. It is not enough to have the engineers say "we got it right. And for the lawyers to say "we've got it right".

Gaye Francis (04:50):

Or the architects or the designers or anybody.

Richard Robinson (04:53):

The designers and the lawyers have to align.

Gaye Francis (04:57):

And I think that was one of the first discussions that we had about the SFAIRP concept was that it really has to be a cooperative process. It cannot be competitive, it has to be cooperative, and you have to have all of those key stakeholders in the room deciding what we are all going to do.

Richard Robinson (05:13):

And that was the point because the commercial imperative is pretty competitive.

Gaye Francis (05:18):

Absolutely.

Richard Robinson (05:19):

It bacically says we want the profit but the risk and which is what safety risk and environmentalists, those things, you tend to push away from yourself. That is the prudent commercial thing to do. But the whole point of the governance legislation, which is the SFAIRP type legislation for safety legislation and in Victoria is now the environmental legislation is saying, no, you can't do that. It has to be a collective decision, in effect, not just one party saying we've met our criteria.

Gaye Francis (05:49):

I think it goes further than that as well. It says, what can we do? Not who owns the risk. It's not about risk ownership and we've covered that in many other things, but it's about all the controls that you can put in place that are reasonably practicable.

Richard Robinson (06:04):

Well, that was the example because we were talking to Joe about it, the lawyer when he came in, it's like there was flying in an aircraft of 30,000 feet. You're on your way down in an unhappy state and the pilot says it's all good. We achieved that target level risk and safety when more could have been done.

Gaye Francis (06:18):

Yes. I guess as a passenger you're not sitting there thinking, oh, I'm glad the risk's so low that they're not going to do anything else about this while we're flying at 30,000 feet.

(06:31):

The next part of the conversation that it prompted was we were trying to define what SFAIRP means for different people. And as you said, we've got a lawyer, we've got Frank as the architect/designer, then there's us as engineers and due diligence engineers, and what it means for the different parties and stakeholders. And I think that's part of the complexity around it as well. When we talk about SFAIRP in an organisational sense, it's about the governance process that you undergo to demonstrate the due diligence requirements under the legislation. For for the directors, they're using it as a liability management tool.

Richard Robinson (07:08):

Yes.

Gaye Francis (07:09):

And for engineers and designers and architects, they're almost using it as, they're using it as safety and design, and it's all about all reasonable practicable precautions or controls. So you've got the (people), who often don't have all of the resources at their disposal.

Richard Robinson (07:28):

Don't have the final decision over the money usually.

Gaye Francis (07:31):

And so the pressures are being pushed down to the engineers and to designers in the organisation to manage the liability aspects for the directors. But they're often not in a position with all the resources and the components that they need to be able to do that.

Richard Robinson (07:52):

And certainly not the test for the elimination option, which we keep coming across. And the latest commission is about to address, I believe. Perhaps we won't talk about it though.

Gaye Francis (08:01):

But infrastructure projects in general. Yes. Typically don't look at the elimination option. And I think that's some of the interesting discussions that have been happening in our consulting work is, there's an ultimate client and there's a contractor delivering things.

Richard Robinson (08:16):

Yep.

Gaye Francis (08:17):

The contractor says, well, times have moved on. You've got a specification for a scope of work, but there's other things that you could do. What do we do with that information? And they do have to punt it up so the ultimate client can make the decision. But there's this mismatch between...

Richard Robinson (08:34):

The ultimate client probably doesn't want to make said decision either, which is the other difficulty, particularly in times of financial constraint. So unless they're a state cabinet who has no liability for such things, it's a very difficult decision to make.

Gaye Francis (08:47):

And so I think it goes back to that first conversation that we were having that all of those stakeholders need to be in the room to have these conversations. And SFAIRP is about that cooperative approach rather than competitive approach to be able to do that. So I think there's a lot of, SFAIRP pressures, if we want to call it, on the different stakeholders that make this situation, these discussions, very difficult.

Richard Robinson (09:15):

Well, it goes further than that because each one of those different stakeholders and their advisors actually come at it from a different point of view. So that means rather than having the cooperative outcome, you tend to get that competition in some way or another. And remember then that's where it gets really scrappy. I mean obviously you're going for the commercial imperative at one level, but disproportionality in a safety sense says: No, you have to hold that commercial imperative back in favour of safety. And that is not an easy conversation to have in the current day and age.

Gaye Francis (09:44):

No, it's definitely not. Independent consultants sometimes help with that, don't we, to have those conversations.

Richard Robinson (09:52):

We're part of the due diligence process to make sure that what needs to have been done was seen to be done.

Gaye Francis (09:57):

So it's that facilitation of it. And I think that goes then back to the organisational governance process of demonstrating due diligence.

Richard Robinson (10:04):

Well, but see, that's what's happening to us though. I mean, we'd always find from our viewpoint, if you haven't got the lawyers on side when you start the job, it's problematic. To try to get them back up to speed after it's done is sometimes awkward. But it's more than that. It's not as though the jobs we're doing we have full knowledge, technical knowledge of all the options and all the details. It's not possible for independents like us to do that.

Gaye Francis (10:29):

No, and that's why you rely on key stakeholders being identified and being involved in the process. So as we said before, as consultants, we're almost holding up a mirror to the key stakeholders and then...

Richard Robinson (10:42):

But document in a way that all the parties are satisfied with the result.

Gaye Francis (10:46):

Correct. So there's some interesting things that are happening and it's not a simple fix, and I think the complexities are increasing as time goes on.

Richard Robinson (11:02):

Because of the commercial pressures are becoming more severe. And I don't know quite what's happening, but we were sort of commenting it before, but the tendency to say "I" ahead of "we" has been increasing vigorously in the last couple of years.

Gaye Francis (11:16):

In business as in social, I would think as a community we're doing that as well.

Richard Robinson (11:21):

Correct.

Gaye Francis (11:22):

So this season we're going to concentrate on those SFAIRP pressures and the different aspects that go with that. Another one off the top of my head is the competing legislation, but I think that's a whole other podcast about the different requirements of different legislation and standards and what that means for SFAIRP.

(11:40):

But we hope you enjoyed the introduction to season six and join us for our next one as we continue to explore those difficult SFAIRP pressures. Thanks for joining us, Richard.

Richard Robinson (11:54):

Thanks Gaye.

Risk Management & Negligence - Due Diligence Essentials for Engineers

Risk! engineers Talk Governance
Season 5, Episode 1

In this first episode of Season 5, Richard Robinson and Gaye Francis provide an overview of their new booklet Risk Management and Negligence - Due Diligence Essentials for Engineers. 

They discuss the importance of engineers to understand their responsibilities around risk management and due diligence, and the need to communicate this effectively to senior decision-makers. 

The booklet covers:

• You can’t always be right but you can be diligent

• What it means to be an engineer today

• The risk management swamp

• Methods to drain the swamp

• Due diligence domains

They also discuss this season’s theme of difficult conversations engineers need to have and their plans for an in-person event to further discuss this topic.

You can purchase this and all other books from our online store.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this first episode of Season 5, due diligence engineers, Richard Robinson and Gaye Francis provide an overview of their new booklet, "Risk Management and Negligence - Due Diligence Essentials For Engineers".

(00:20):

This and all books they mentioned are available on the R2A website via their online store (www.r2a.com.au/store). The direct link is in the podcast description.

(00:30):

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 (00:42):

Hi Richard, welcome to a new season of R2A podcasts.

Richard Robinson (00:47):

Yes, and considering how many people and how fast they respond to our podcasts, welcome again, Gaye.

Gaye Francis (00:52):

Season five. (This season) we're going to do a little bit differently, aren't we? We're going to talk about, or hopefully talk about some things that some of the difficult discussions around risk and due diligence. Discussions that we think people need to have but aren't necessarily happening. But in this first session today, we're just going to talk about... We've had a very busy January and we have updated all of our textbooks and our booklets and also written a new booklet, which is very, very exciting. And this one in particular is aimed at engineers.

Richard Robinson (01:26):

That's correct. And what we thought we might do is just take you through the generic contents of it, just so you understand the points we're trying to make. And then touch on a couple of the things whilst we do it, because to sum up all this, we kind of get the feeling there's become a disconnect between engineers who seem to be increasingly working in silos and the senior decision makers, the directors, and the responsibilities that they have. And we are sort of doing some other work for other regulators and things like that. And that's become particularly apparent and some of the things that we were doing.

Gaye Francis (01:55):

I think it's also shown that we thought that everybody was on track and not on the same wavelength and the same page with these things, but there seems to be a step back or gone backwards a little bit in some of the management of safety and how it's communicated throughout organisations.

Richard Robinson (02:15):

Well, that's right. I mean, part of that was sort of because we were giving a course to Engineers Australia internally on engineers becoming chartered members.

Gaye Francis (02:24):

For the assessors.

Richard Robinson (02:25):

For the assessors. And one of the things that they expressed surprise about was how few engineers actually were aware of significance of the WHS legislation and why it was so important that engineers get it right. And from the point of view of their organisation why it was essential that everybody understood. I mean, we find it strange because due diligence for directors being able to pay your bills when they fall due is absolutely everything all directors focus on when you have to sign your ASIC reports every year to say that that's the case. And so all directors are particularly focused on it. And that same responsibility now applies to directors with regards to health and safety, which we think is entirely irrational.

Gaye Francis (03:03):

And so you would've expected that message to be propagated down.

Richard Robinson (03:06):

Through organisation, but that's not what seems to be happening.

Gaye Francis (03:09):

Correct.

Richard Robinson (03:10):

And we find that very confusing and that's one of the reasons why we felt this new book that was so important.

Gaye Francis (03:14):

I also think that there's a lot of emphasis put on a lot of organisations. We've talked about this in our other podcast as well as they have a health and safety department or our OHS department, and really they're only internal advisors. They are not responsible. As we said many, many times, safety is the responsibility of line management.

Richard Robinson (03:33):

And risk management is a line management function. And that has always been the case. That has never not been the case. I think that's something that's always mystified me as everyone keeps passing it out to somebody else

Gaye Francis (03:43):

And saying, by having this dedicated department to that, they're going to manage all of it. Now really all that they're doing is facilitating some of the processes that happen when some of those due diligence processes.

Richard Robinson (03:55):

And the line manager still has to make the decision or the directors depending on what the substance of the decision is.

Gaye Francis (04:00):

Correct, correct.

(04:01):

We thought we'd go through the contents (of the new booklet) anyway.

Richard Robinson (04:04):

Well, are you able to summarise the names of all these books now? Because I've forgotten? Well, not forgotten, but it'll come back to me when you've described it to me.

Gaye Francis (04:13):

I love being Richard's corporate memory sometimes. But anyway, the test! No change to the name of our big R2A text, which is based on everything. So it's "Engineering Due Diligence Concepts - Application, Tools and Techniques". Our Criminal Manslaughter one has remained unchanged, "Criminal Manslaughter - How Not To Do It (A practical guide for directors)". We did change the Project Governance booklet to "How to Prevent Catastrophic Showstoppers for Projects". And that was really about changing the language a little bit to say it's really those black swan events that we're trying to do those high consequence, low likelihood ones.

Richard Robinson (04:57):

And that's aimed at directors too.

Gaye Francis (04:58):

That's correct. That's aimed at directors. And then our last one...

Richard Robinson (05:03):

Which we spoke about last year (Season 4, Episode 5).

Gaye Francis (05:05):

We did, but it's had a little bit of a tweak and a name change. It's called "Risk Management and Negligence - Due Diligence Essentials for Engineers".

Richard Robinson (05:14):

That's correct. And to just give you the flavour of the contents, because this is part of this frustration we've got that engineers are being pushed into silos and they're not consciously thinking about what they need to do to provide information to the senior decision makers so they can satisfy the senior decision makers, the director's due diligence obligations for health safety and so forth. And we just found this particularly frustrating.

(05:37):

We don't understand why that's happened because we thought one of the consequences WHS legislation generally was that technical directors would appear. And I certainly remember that's a while ago. Now I can remember my youth, the heads of two of the Australian banks were both engineers. The fact that engineers have just been pushed out of all these senior decision making positions and it's all sort of gone to accountants and lawyers still, we simply don't get it when you live in advanced technological society when horrible things can happen.

(06:04):

Anyway, this (book's) now focused at engineers and in a sense, it's trying to get the engineers out of the silo, I suppose, and make sure they're thinking about how their information should be presented to the senior decision makers in a competent way. So Chapter 1 is...

Gaye Francis (06:18):

Be diligent. You can't always be right.

Richard Robinson (06:21):

And that's the point. I think a lot of engineers, I mean we had to do a lot of this expert witness stuff. When something bad happens, the engineers say, oh, it's all my fault. I should have got it right. And we said, no, no, no, no, no, no, no. What you needed to have done was demonstrated diligence. You cannot always be right. That's not possible. You have to be responsible for your own negligence. That's why you buy insurance. And if you're an employed engineer, why your employer buys insurance so that any harm that does happen, you could do the best you can to rectify it, but you can't always be right. You go through a process that demonstrates diligence for the matter that you're dealing with and the organisation has to sign off at it. That's just the way it works. You can't always be right.

Gaye Francis (07:00):

And I think that was one of the things, key takeaways I recently gave presentation mid last year, and one of the directors came up to me and she said, the thing I got out of your presentation was about process. Good governance and process.

Richard Robinson (07:13):

Correct.

Gaye Francis (07:14):

And if you do that, then you will be diligent.

Richard Robinson (07:18):

The core of that chapter is all about design. Get it right. Don't try to fix it afterwards. It's just wasting time, energy, and effort. You really are.

Gaye Francis (07:27):

I think the other key thing out of that is criticality not risk. It's about the critical things. Those high consequence, low likelihood things, which we've talked about in many, many, many of our sessions.

(07:39):

Chapter 2 or second section is: Being an engineer and what does that actually mean these days? There's a whole lot of constraints around you and know what you're good at, but also the environment and the context in which you work will have all of these constraints around you.

Richard Robinson (07:57):

But it's got a lot to do with engineering education again, because engineering education has always been focused on science and applied science. And so you were taught to be competent in how to solve and the gas equation or whatever it is, the issues that you're concerned about and how to design structure and so forth. But they never told you much about the context in which you found yourself. And I have always assumed that one of the purposes once upon a time was it was Corporate Membership. Now it's Chartered Engineer Status. But the reason for imposing that was that merely passing an engineering course and being competent in the science and knowing how to pass the exam didn't actually mean you were competent to design anything. And nor to put it in the context of what would happen if it went wrong and why you have to get it right.

(08:40):

And that's the due diligence part and the legal context part, all that sort of stuff. And most engineers, they learn about that. Well, probably the first two or three years if they've been chucked in the deep end and then they start going, I need to know a bit more about this and what do I have to do to get there? And that's the sort of stuff that we always thought Engineers Australia was going to focus on. But judging from the remarks of the Chartered Assessors, it perhaps hasn't been successful as it ought to have been.

Gaye Francis (09:09):

I think I've shared this story in another podcast, but as a young engineer many, many years ago, one of the things that Richard taught me first was it doesn't matter how technically brilliant or correct you are in your solution, if you don't get your politics right, you'll never get it over the line. And that's that communication aspect and understanding the solution that you're putting forward and the context in which you make that.

Richard Robinson (09:33):

Well, it actually goes a bit further than that because if you do want to prosper and you're in a large technological organisation and you've put forward a technical solution which doesn't satisfy your WHS legislation, you'll come a cropper for the first place. But conversely, if you get it right and you positively demonstrate due diligence in a way that the senior decision makers can rapidly sign off on, you are worth your weight in gold. You solve so much time and organisational frustration, you just simplify things instantly.

Gaye Francis (09:59):

And it results in action being undertaken.

Richard Robinson (10:01):

Correct. And being an engineer if you do this work and nothing happens... I mean the satisfying jobs for us, the ones where we know the result is that people went off and did things.

Gaye Francis (10:12):

Oh, and it made a difference. And you could see that it made a difference in the organisation.

Richard Robinson (10:16):

If it's just a matter of spinning the wheels. We don't want to work for those people again, do we?

Gaye Francis (10:20):

No. And we typically don't.

Richard Robinson (10:22):

We typically don't.

Gaye Francis (10:23):

So Chapter 3: The risk management swamp. You can see that Richard's had a little way with his words here!

Richard Robinson (10:32):

Well, this is the frustration engineers are having from their point of view. I mean, that's Sydney Decker, the psychologist from Queensland Uni, airline pilot turned psychologist. Now here's the line about there are so many safety rules out there that nobody really knows what they are, least of the people doing the job, which is blatantly absurd. So you've actually got to do things in a way which make common sense, that you're going to need to have a philosophy and an understanding and a reason behind it. And let's just try to remember the rules. It's not possible. Know all the rules. Now, it actually isn't possible. You have to understand the principles so that when you go and test for the rules, you realise: Ah, we got it right the first time.

Gaye Francis (11:05):

So that chapter goes through some of the difficulties I guess engineers have with the risk management domain and some of the theories and some of the ideas in that area.

Richard Robinson (11:18):

Particularly the tolerable acceptable risk argument, which has still become very popular with engineers and you can't do it anymore.

Gaye Francis (11:24):

I actually think that it's risen again. It sort of went quiet for a while and I think it's back with a vengeance. But anyway...That might be a whole other podcast.

Richard Robinson (11:34):

We could say too much there without too much trouble.

Gaye Francis (11:36):

And then Chapter 4 has to be: Methods to drain the swamp. So this one just goes through a whole lot of different methods to be able to do that. And I think we always say in our courses, in our books, in our consulting gigs, it's not one size fits all. There's a whole lot of different ways that you can go about doing this, and you've got to pick the one that is right.

Richard Robinson (11:57):

That solves that problem.

Gaye Francis (11:58):

Correct. Due diligence by design. How do you actually go about it?

Richard Robinson (12:04):

Well, that's the point. I mean, in the earlier chapter, being an engineer, we sort of make the point about the alliance of lawyers and engineers, and we've spoken about this number of times, David Howarth, the professor of Law of Public Policy, saying how the lawyers are actually copying the engineers. Because basically what happens with engineers, there is a problem or somebody wants to do something, what are the options and in the circumstances, which is the right option and why is it the right option? That's called doing due diligence. It doesn't matter if it's a commercial decision or it's a design decision, you go through the same process or it's a legal problem. And we don't understand quite why that's somehow gone missing again. Design by standards is usually indefensible because there's something that always goes beyond the standard.

Gaye Francis (12:49):

And I think a lot of organisations, this is the Standard, you design to that. But yeah, it's not getting the answers...

Richard Robinson (12:56):

Doesn't normally demonstrate due diligence.

Gaye Francis (12:58):

Correct. And then our last chapter in the book is: Due diligence domain. So it sort of goes through some safety, project, enterprise, environmental, and that sort of thing. So it's really the application of the due diligence process to a whole lot of different domains and the way that we've seen it work within industry.

(13:19):

So we're looking forward to this season of podcasts and having some of those difficult discussions. We'd really love to hear from you if you've got any big, big picture questions that you'd answered or Richard and I to have a chat about.

Richard Robinson (13:32):

The other thing that we're just a talking about was the idea that we might want to have some kind of, I dunno, it's not a conference? What actually is it?

Gaye Francis (13:40):

Yeah, let's call it a conference or a gathering for now.

Richard Robinson (13:43):

A gathering, yes. That's a term my son uses and I'm never quite sure what it means. But basically we think that the system and the engineers are missing the point to some extent, and we want to concentrate. And that's what you want the season to be about, those points that have been missed. So some of those points might be sore points in some places because we're basically criticising Standards Australia and the fact that Engineers Australia keeps encouraging all their engineers to give all this IP to standards. None of the American societies do that. If you're the Society of Fire Engineers in the USA, which I'm a member, you hang on to your IP. You sell your handbook, you do not give it to a third party free, and you do not volunteer your members' time.

Gaye Francis (14:26):

Yeah.

Richard Robinson (14:27):

Association of Mechanical Engineers don't do it. Civil Engineers. They just don't do it.

Gaye Francis (14:32):

I think there's the discussion about ALARP and SFAIRP, target levels of risk of safety, and the changed meaning of things that it seems to be happening in industry, but the methodology that it's used to show those particular concepts has not changed. So we want to have some of those discussions this year and we are thinking that maybe it's a bit more than a roundtable. It'll be sort of a conference or a one day seminar session and have some invited guests and speakers to that and see whether there's any interest.

(15:09):

So thank you for joining us today for our...

Richard Robinson (15:15):

I hope you enjoyed it too. Yes.

Gaye Francis (15:16):

I hope you enjoyed it too. For our first podcast for Season 5, and we hope you join us next time. Thanks, Richard.

Richard Robinson (15:23):

Thanks Gaye.

The Judicial Need for Reliable Knowledge and to Demonstrate Causation

Risk! Engineers Talk Governance
Season 4, Episode 1

In the first episode of Season 4, Richard Robinson and Gaye Francis discuss the judicial need for reliable knowledge and the need to demonstrate causation. 

They highlight some of their Expert Witness examples to demonstrate how for the courts to come to a decision, they have to not only have an understanding of what went wrong, but if there was something that could have been done that would've prevented the incident. And if this hasn’t been made clear, then making a decision becomes very complicated. 

From the point of view of the courts, if things don't happen because there's a causal link to which you can assign liability or responsibility, how can they make a decision? 

They finish by talking how often it’s due process and, on a certain level, it is more important to have a decision society can live with rather than actually getting it right. 

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to season four of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the judicial need for reliable knowledge and the need to demonstrate causation.

(00:17):

We hope you enjoy the episode. If you do, please give us a rating. Also subscribe on your favorite podcast platform. If you have any feedback or topic ideas, we'd love to hear from you. Please email us at admin@r2a.com au.

Gaye Francis (00:36):

Hi, Richard, welcome to a podcast session.

Richard Robinson (00:38):

Good morning Gaye. Good to be back.

Gaye Francis (00:40):

Good to be back. Today we're going to talk about the judicial need for reliable knowledge and how that sort of fits in society now, and how expert witnesses behave in court. This is one of the topics that you're very, very interested in and have a lot of information on. So I think you were going to open up with an example from one of our (R2A) courses.

Richard Robinson (01:05):

Yeah. The difficulty here is that in order for the courts to come to a decision, they have to have an understanding of what went wrong and, more to the point, if there was something that could have been done by somebody in the process that if it had been done would've stopped it all going wrong. And if you can't come to a clear understanding what that is, then making decision becomes very complicated.

(01:25):

Now, the simplest way to do this is just to explain a case that went through courts, and we used it in our training a lot, and that's about a woman who alleged she slipped over outside the freezer area of a supermarket. There's no doubt she'd gone over because she'd had a laminectomy. That's where you take a piece of bone from somewhere else in your body and fuse to vertebrae together. So I turned up with her shoe, a kilogram weight and a spring balance trying to work out how slippery the floor was. So I parked the kilogram weight on her leather sold shoe on a line of floor and I drag it around the floor working out the coefficient of friction - static dry, static and dynamic, wet and dry - and work out whether the floor was slippery or not. As I have mentioned, if you want to feel like a bit of a goose in a public place, I could recommend putting a kilogram weight on a woman's shoe and drag it around the floor.

Gaye Francis (02:10):

You get some weird looks.

Richard Robinson (02:11):

You get some weird looks. Anyway, I got a good result. So I then trotted over the management, said, guys, what happens if you get a spill? And they said, oh, we've trained our people. If we see a spill, we put up those plastic posts and tape and we block it off and we're out there with buckets and mops and we don't take the tapes down and the poles away and until the floor's back in pristine condition. So I had to go back to this woman and say, look, so far as I can tell, there is nothing which this supermarket has failed to do, which will (lead to) you slip, fall, and injury. Tell me again what happened. She said, well, actually it's quite interesting actually. I actually fell forward. I said, well, that's interesting because the comedians have got it right. If you step on a banana skin, you'll tend to fall on your back, but if you trip, you'll tend to fall forward.

(02:53):

So I said, it sounds like a trip. So I tried it back to where she said she'd fallen over and precisely where she said she'd fallen over, there was a little access hatch in the lino floor with a little bronze lip around the edge, and it had a sort of a lip of a few millimeters and she was wearing strapless sandals. So I reckon what had happened, she'd been walking in the supermarket for 15 minutes. As she walked over this little hatch, the heel caught on the back of the hatch, which stopped her foot, which means she fell forward.

(03:21):

So what this means in causation terms, if she sues the supermarket because the floor was slippery, which led to her slip, fall injury, then I don't think it's the case to answer. But if she sues the supermarket for her trip, fall and injury because they failed to maintain the floor in level condition, I think there is a case to answer. And that's why causation is so critical to the courts. If you can't satisfy causation, you've got troubles.

Gaye Francis (03:45):

We haven't got a case to start with.

Richard Robinson (03:48):

So then a little while later we got another case, the Supreme Court of Victoria, and they were fretting about the impact of rolling blackouts if we had a strike in the Latrobe Valley with the power supplies and things like that. And the problem you've got here is that, I mean, we know from a memory with the blackout in South Australia, all these dreadful things happened, but that was after a windstorm blew over all the towers. And the problem you have is that you don't know... You can say that the bloodbank went wrong and a whole lot of invitro samples died and a whole number of other things. People got trapped in trains and lifts and all these other things like that. But you don't actually know predictively in advance which one of these things would actually happen. So you sort of have to start doing a probabilistic thing. The problem you normally have is if there's a storm and the power goes off, you can't say that somebody didn't make it to hospital just because the lights were out, because often there's a flood on the road or a tree across the road and that blocks things up. So you can't separate out what's the actual cause.

Gaye Francis (04:42):

There's a number of mechanisms that all add to it.

Richard Robinson (04:45):

Now, as it turned out, after a bit of scrambling around, we actually did find a way forward, and that was that we found there was, they called a blue sky blackout in New York about, I don't know, 2008 or something like that. And there was no storm. For various reasons the network failed and the power went off for 24 hours, something like that. And all the things that we've talked about went wrong. People got stuck in lifts, subway tubes, pharmacies lost their freezers, people couldn't get their prescriptions. All sorts of things went wrong. But because it was a blue sky one, you can actually adopt an epidemiological view. You didn't have to know what happened. You say, look, what was the increase in mortality because of that event? Because that's what epidemiologists do. And the study we were reading was by epidemiologists.

Gaye Francis (05:29):

Right.

Richard Robinson (05:30):

Now what that means though, you're taking a probabilistic view of the way things behave. You don't know, like the woman who slipped over because of this, you failed to maintain the floor and level condition, trip, fall injury. You can only say, oh, I think there might be a percentage increase of this in the same circumstance for a similar city. Now, Melbourne's not as dense or as high rise as (New York), so what factors are important? Now, the reason why this gets particularly complicated is because you start getting into this probabilistic... The first model we talked about was Newtonian. Now there's a causal link and a time sequence and events in series with a predictive model like an epidemiological model. You can't say that's the case. I mean, that's part of the problem with the covid work. You could do these mathematical models, but you can't say that's definitely what's going to happen. There was never that nice crisp connection.

Gaye Francis (06:22):

No, there were too many mechanisms that led to all of the consequences that came out of it.

Richard Robinson (06:27):

Correct. And that's why Schrodinger cat popped up of everybody heard about that popular culture. But basically what it was talking about was the fact that when you start talking about atomic decay and things like that, you can't predict it. You can put a probability number on it, but you can't say in the next half hour that this one thing will happen. I mean, the way Schrodinger cat worked, it was sort of a thought experiment of a, I thought, a pretty robust sort. Basically you put a cat in a box of the poison container and with a radioactive source of some sort, and if there's a certain decay in that radioactive source, it'll set the poison off and kill the cat. And so you don't know in the next... if you put it in there for an hour, but you can't say whether that event will happen or not.

(07:09):

You dunno whether the cat's dead or alive. And the only way to find that is to open the box up to have a look, which I said I thought was always fairly macabre sort of example. But everybody kept talking about it. So that's what you do.

(07:21):

Now, you can see from the point of view of the courts and the possibility of causation that if you say everything is strictly probabilistic in nature, that things don't happen because there's a causal link to which you can assign liability or responsibility. How can a court make a decision? You're in a very difficult situation. Now, obviously in the case of the Supreme Court we were doing here, we could actually say the mortality basically in New York increased by about 30% during that blackout. And if you know what the mortality figures in Melbourne are, obviously we're different city, but you could say as a first cut, quick and dirty, but it's still a pretty rubbery first cut.

Gaye Francis (08:01):

There's not a direct link between the two events.

Richard Robinson (08:04):

You can't say 'if this, then that'. You don't get... Remember, common law is done on the balance of probabilities. Well, that's really hard to show. And if you start talking about beyond reasonable doubt, I do not see how a probabilistic basis of causation could help a court at all.

Gaye Francis (08:23):

So going forward with the way that information is at the moment and the reliability of that, the courts are still relying heavily on the experts to get it right?

Richard Robinson (08:35):

Correct.

Gaye Francis (08:37):

And there's a lot of information out there, and I don't know about you. Sometimes I read some things and I'm like, oh, can that quite be true? But how do the courts deal with this way in thinking and this vast amount of information that's coming out our way when they're making those sort of decisions?

Richard Robinson (08:59):

Well, obviously it depends on your experts, and that's why, I mean ,the courts are very clear that they want the experts to be expert. You were talking about that other example which we use in the court where a...

Gaye Francis (09:14):

Storeman hurt his back.

Richard Robinson (09:15):

Yeah. Tipping up a drum, a 44 gallon drum, which was lying on the side. And then the lower court took the advice of an orthopedic surgeon that if you've got a 400 or 200 kilogram drum lying on the side, that's a 200 kilogram lift to tip it vertical. Well, no, it's a simply supported object. And so it's a 200 kilogram. It's 100 kilograms at either end. So it's a one hundred kilogram lift to raise it up, which decreases as you bring it up. Well, it took the high court of Australia to work that out after two Supreme Court appeals. Now when that was because the data that went into the first trial judge who was not a physicist, obviously, and I'm still not too clear how the high court became aware of this distinction, but if you get a bad input, you'll get a bad output. And that's the advice we got from Engineers Australia. I assume that they've got... their lawyers are good in that. What's a fact between sensible and smart? Is it what actually happened? No, most emphatically not. At best, it's what the trial court, the trial judge or jury thinks happened. But the trial court or the trial court may be hopeless and incorrect, but that doesn't matter legally speaking because you've got to remember, the reason why we have courts isn't so much to get it right, is to make sure we stop escalating events.

Gaye Francis (10:31):

It's about due process.

Richard Robinson (10:33):

It's due process, and getting a decision. At one level, it's more important to have due process than a decision we can live with rather than actually getting it right. Although that would offend an awful lot of people I know.

Gaye Francis (10:45):

I think it's an interesting space and especially the way the world's going. As you said, there's a whole lot of different ways that you can think about information and that traditional way of causation with almost a linear understanding of events. I think more and more events are becoming more complex and there's less events that are just being able to be shown linearly.

Richard Robinson (11:10):

Well, you might remember the maritime rules of the road, and we've talked to a lot of master Mariners about these things at different times, and we've been told a couple of times, the only reason why those rules of the road exist is so they can assign liability after the event. If you can't stay away from each other in big ships...

Gaye Francis (11:27):

You've got more problems...

Richard Robinson (11:27):

...more problems than that. But after it's all gone wrong and somebody's sunk and the people have been drowned, you need a way to make a decision. And so you have these rules, which more about making decisions than hindsight, sometimes, than they're about preventing things from occurring in the first place, which speaking as due diligent engineers, we find a frustration.

Gaye Francis (11:48):

I think you'd say that with a lot of the rules and policies and regulations that are around, it's about assigning a liability after the fact.

Richard Robinson (11:56):

It's like Sydney Decca's line: There's now so more safety rules out there that nobody, at least of all the people doing their job knows what they are. So what the heck are they for? And a lot of the time you've got to say, oh, it's so if it all goes wrong. You should have known, even if you didn't.

Gaye Francis (12:12):

I think that's probably a space that's becoming more and more, it's a liability. The due diligence stuff that we're doing is becoming more a liability management exercise rather than a safety improvement exercise.

Richard Robinson (12:29):

I think that was always the case, Gaye.

Gaye Francis (12:32):

I was optimistic that it wasn't, but I think liability is something that we'll just talk more about in this podcast season. So thanks Richard for the podcast today and nice talking to you. Will you hope to see you next time?

Richard Robinson (12:48):

Thanks, Gaye

Design Analysis not Risk Analysis

Risk! Engineers Talk Governance Podcast
Season 3, Episode 1

In this episode, Richard and Gaye discuss the topic of design analysis versus risk analysis. They explore the difference between ALARP (as low as reasonably practicable) and SFAIRP (so far as reasonably practicable) and how the interpretation of these concepts has caused confusion and problems in various industries. 

They also discuss the importance of safety in design and the need for a retrospective design review to ensure that all reasonable practical precautions are in place. The conversation also touches on the role of AI in consequence modelling and design review, as well as the need for quality assurance and independent checks in governance processes. 

The episode concludes with a reminder that there is no one-size-fits-all approach to risk analysis and that different tools and techniques can provide different insights into due diligence issues.

You can read the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to season three of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the topic of design analysis rather than risk analysis. We hope you enjoy the episode. If you do, please give us a rating. Also, don't forget to subscribe on your favourite podcast platform.

Gaye Francis (00:27):

Welcome Richard, we're back for Season 3 of our podcast.

Richard Robinson (00:31):

Yes, and as we were just talking, Gaye had an excellent holiday in Finland with the family.

Gaye Francis (00:35):

I did! Had to do due diligence a couple of times with managing kids, but we made it safely and had a good time.

Richard Robinson (00:44):

And since then, you're able to go on more business trips because the kids are so well accepting of your traveling needs.

Gaye Francis (00:50):

My traveling needs. That's correct. Just a little aside there!

(00:55):

Welcome back, as we said, to Season 3. Today we're going to talk about design analysis rather than risk analysis, and the need to demonstrate SFAIRP (so far as reasonably practicable) is really a design exercise.

Richard Robinson (01:12):

Yeah. In part this arose because there's been some interesting discussion if there's really a difference between ALARP and SFAIRP. And I suppose we were sort of completely mystified by the whole discussion because, from our viewpoint, ALARP should never have existed. And the way it got interpreted has caused an awful lot of grief in an awful lot of places for an awful lot of people.

(01:29):

But when we were just fiddling around with it, I think it partly irritated me because I've sort of said a lot of things in different ways and I've understood what the different points were. For example, consequence modeling, that's things that go 'pop' and 'bang' and overpressures and things like that, is a very scientific area of activity. And consequence modeling to me was always fully scientific. What always was clear to me is that risk analysis per se, which is a simultaneous appreciation of likeliness consequence was always a very muddly subject and everybody always got confused.

(01:58):

Now, I just did sort of an exercise out of a curiosity because all this ALARP (vs) SFAIRP business reappeared, I sort of actually went and looked back at Sir Frank Layfield's review of the Sizewell B power station, which is where he had a problem because whether or not they were going to approve the new nuclear power station, which was a fairly complicated idea in the UK, and he had a lot of engineers advising him and he was a lawyer. And one of the things that sort of became clear is that when you look at nuclear radiation levels, you had to decide what was harmful or not harmful and what was reasonable. And so the recommendation that came out of his thing is that somebody should do a review of this. Now that sort of ultimately sort of floated over to the then what was the new UK Health and Safety Executive, and when you look at the people who put the tolerability risk of nuclear power stations together, they were mostly scientists talking about radiation and they were the people who dreamed up this whole ALARP business.

Gaye Francis (02:52):

So they were actually looking at the level of radiation that could be acceptable, in quotation commas, "to humans".

Richard Robinson (02:59):

But what was interesting about that, that so-called dagger diagram never had any numbers in that document, but what they did do was put in the appendice what acceptable or tolerable levels of risk in different industries otherwise were: Car industries about 10 to minus four per annum for a single fatality; and lightning strikes and so forth was about 1 x 10 to minus six or 10 to seven. Now, they didn't necessarily recommend putting those numbers onto their dagger diagram, but that's what everybody in the petrochemical business, in particular, and the land use planning guys in major hazard facilities did for the next 20 years.

Gaye Francis (03:35):

They equated the two (ALARP & SFAIRP).

Richard Robinson (03:36):

They equated the two. And then I realised well the engineers doing Sizewell B and giving advice to lawyers were very careful. And even the scientists when they were putting in the risk level, left it all in the appendix. It was other people that stuck the two together. And that's in fact where the difficulty arose. Now that sort of caused me a reflection in which irritated me because I've thought about this for a long time and trying to put models together and so forth. I mean, one of the things we had realised for example, was that because we had David Howarth the professor of law and public policy out we sponsored into Melbourne in 2017, and the reason why we were interested in him because he had that book "Law as Engineering". And what he was pointing out is that the lawyers, particularly international UK and US lawyers, were consciously studying the design activities of engineers on the basis that the lawyers do the same as engineers. If somebody client turns up says, I got a problem or I want to do something, then in the circumstances what are the options and which is the best for the client? Now that's a design exercise. And I suddenly realised safety in design, well, that's a design exercise. That's the point. Consequence modeling is scientific, which drives the criticality analysis decision. And what the courts actually do post-event, it's not the level of risk that counts, it's a retrospective design review.

Gaye Francis (04:55):

To make sure that all reasonable practicable precautions were in place.

Richard Robinson (04:58):

Now if you look at it like that, you do consequences now just to work out what the critical things are, that is very scientific. And then you do safety and design to manage that consequence. And then if it all goes wrong post-event, you do a retrospective design review, which is what the lawyers are deliberately studying the engineers for. That's what David Howarth's point was. Now that has a couple of interesting little flow-ons because the consequence analysis, which I've always understood was scientific. You've listened to me ramble on about that for 10 years!

Gaye Francis (05:32):

A few more probably!

Richard Robinson (05:34):

Because basically we decided to stay away from major hazards because they were doing risk analysis, not consequence analysis, in the first instance, and therefore weren't demonstrating all reasonable practicable precautions were in place.

Gaye Francis (05:43):

I think just before you go on there, it's just important to know, that we've covered this in another podcast, that major hazards have gone to consequence modeling and consequence analysis primarily now.

Richard Robinson (05:54):

At least in Victoria. That's correct. I'm not aware of any other state doing it yet. And we did suggest that Engineers Australia in their role as the intellectual body of engineers should actually get their act together on this one lickity split, but that's another matter. But what was interesting about this was, you see the business of science is to know about things. So this is not an attack on scientists in any way because the better scientists know, the better engineers can do. That's the whole point of the exercise.

Gaye Francis (06:23):

The better you're able to design for those things.

Richard Robinson (06:25):

That's correct. And then the lawyers have decided they're going to consider what the engineers are doing and do design reviews of, at least, what the engineers have designed. That means there's a remarkable alignment going on. I mean obviously there's a bit of a flow between the scientists and the engineers because sometimes engineers turn more into scientists and vice versa about what can be done.

Gaye Francis (06:48):

And I think that process is a bit more back and forth, isn't it? But if you focus on the credible critical issues, that's sort of where you can get your design the most robust and it usually then designs for the lesser issues as well.

Richard Robinson (07:02):

Correct. And the other reason why this is actually important, all of a sudden it puts the responsibility of the respective parties in the right place because the scientists -- it is important they keep figuring out how the world behaves, how a gas cloud under certain circumstances will behave and all the modeling things that they wish to do -- but it's the engineer's responsibility to make sure that every reasonable practical control is in place to deal with that credible critical issue. And then it's the lawyer's responsibility to retrospectively test that understanding, because in an advanced industrial society, we do create the most enormous hazards. And when you think of where AI's going, I mean that's what they're actually talking about now. Because what an AI can do, it could do a much better job of the consequence modeling probably because it will take a whole lot of parameters into account. Will it do the design review? Now, that is an interesting question and I don't think people have thought about it because what the philosophical framework for that design and then the design review, that's never going to be the job of an AI. I would have thought.

Gaye Francis (08:04):

It's a really interesting question. I gave a board presentation last week and one of the board members asked, what's the role of AI and how as a board do we demonstrate due diligence around it? And I think it's going to go more as a governance and boards and things like that are going to have a responsibility to test the AI where it's going to be used. And I don't know that we can use it for safety critical things yet, but that's just sort of an opinion. I don't know how you put a quality assurance system around it to make sure that it is? But there's going to be some interesting questions around that and quality assurance and how boards govern AI going forward.

Richard Robinson (08:46):

Well, it fascinated me because remember the first, pretty much one of the first jobs you got with R2A as a young engineer was doing the SIL study, the safety integrity study on how two trains would get past each other on a single line track in New South Wales.

Gaye Francis (09:00):

Correct.

Richard Robinson (09:00):

And you had the job of basically testing every track, every intersection, every points and testing to see whether the watchdog that was being created would actually...

Gaye Francis (09:09):

Bark... Or bring up that the hazard existed.

Richard Robinson (09:15):

That's the sort of task you'd think they'd probably throw an AI. But are you going to trust an AI to make sure that every possible configuration is tested or are you going to choose a Gaye to do it in the future?

Gaye Francis (09:28):

<laughs> Well, I think that's where quality assurance comes in, doesn't it, Richard? Because you're going to have to have a confidence around the technology that you're going to use and the AI and the information that it gives out. You're going to have to test it in some way as part of your due diligence process to make sure that you've got confidence in the information that it's delivering to you.

Richard Robinson (09:46):

Well, you might remember my then business partner, Kevin, basically what he had to do... He worked out a process to make sure that none of the collisions or head-ons - all the train collisions - could occur. And then when the designer decided that was the way it was going to be designed, to use that test (they) had to dream up a different test in order to test whether or not what the designer put together...

Gaye Francis (10:12):

Actually worked.

Richard Robinson (10:13):

Actually worked. And so a different kind of risk model had to be put in place to examine what was being done by these large defense-based software players. And we had to dream up, well, Kevin was doing that part and I was doing the checking and you were doing the work as I recall.

Gaye Francis (10:31):

<laughs> But I think that's really interesting because I think those sort of things will require this independent check. And that's part of what, I guess, if you go back to our idea that the courts are testing after the event whether all reasonable practical precautions are in place, so that retrospective design review, they're looking for other tools and techniques to test the governance processes before the loss of control point in a way.

Richard Robinson (10:56):

Correct. So you need different ways of doing that. And I think we have talked about this in another podcast, but perhaps that's another one we should revisit? Particularly because, obviously from our point of view, the Victorian major hazard people have actually ditched what was the target level of risk ALARP process in favour of what we've always understood to be...

Gaye Francis (11:16):

So discounted the likelihood; they don't consider likelihood anymore. So it's consequence base. But we've said it in a number of our podcasts and we will continue to say there's a whole lot of tools and techniques out there that give you all different insights into risk issues or due diligence issues. It's not a one size fits all, it's that you have to think these things through and you will get different insight depending on what you use. So I think that's one of the key things that we would say is your retrospective design review, think about the questions that a lawyer might ask you in the event that an incident happens. And have you demonstrated due diligence?

Richard Robinson (11:58):

Yes. Well, I did observe I've worn my glasses today, so as I commented to Gaye earlier, she's actually been in focus for the entire session, which is nice.

Gaye Francis (12:06):

I hope my words as well as your vision! <laughs>

(12:09):

Alright, I think on that note, we might wrap podcast number one for season three here. Thank you for joining us and hope you can join us next time. Thank you.

Richard Robinson (12:19):

Thank you.

Safety in Design

RisK! Engineers Talk Governance
Season 2, Episode 1

In this episode of Risk! Engineers Talk Governance podcast, due diligence engineers Richard Robinson and Gaye Francis discuss a recent case they were involved in as expert witnesses at the VCAT Tribunal. The case involved a young couple who wanted to build two townhouses on a property that was within a major hazard facility contour line. The local council rejected their planning permit based on advice from WorkSafe. The couple sought help from R2A (Richard & Gaye's consulting business), who advised them on safety measures to address the hazards associated with the facility. 

Watch the podcast recording

Megan (Producer) (00:02):

Welcome to the first episode of Season 2 of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis talk about safety in design, especially in relation to a recent VCAT tribunal they were expert witnesses in.

(00:24):

We hope you enjoy the episode. Please give us any feedback on topics that you would like us to cover and please subscribe on your favorite platform and also give us a rating.

Gaye Francis (00:37):

Hi Richard. Welcome to another podcast recording.

Richard Robinson (00:42):

Hi Gaye. It's good to be here.

Gaye Francis (00:44):

Today we thought we'd talk about a recent job that we've been working on, which was a hearing in the VCAT Tribunal -- Victorian...

Richard Robinson (00:52):

Civil and Administrative Tribunal.

Gaye Francis (00:54):

Thank you for that! VCAT. And what happened was a young couple came to us and they were trying to put a planning permit in with a local council that had got rejected. And the reason for its rejection... It was a single dwelling at the moment, an old house that they wanted to pull down and put two townhouses on, and it was rejected on advice from WorkSafe that it was now in a major hazard facility contour line, which we'll go into in a little bit more detail. And their argument was that the new two townhouses had a greater exposure, or exposed potentially more people, to this hazard than was existing in the original dwelling.

Richard Robinson (01:44):

That's right. So the argument was that there were four people in the original dwelling with two houses side by side. There'd be eight people and it was unreasonable to increase the number of people on a societal risk basis.

Gaye Francis (01:55):

So for this reason, even though WorkSafe wasn't an authority, a planning authority to be able to reject it, that advice went to the council and it was rejected on those grounds by council under their planning permit scheme. So they sort of turned up here (at R2A) and said: Ah, what do we do with this? Are you able to help us?

Richard Robinson (02:17):

Yeah. But we basically said to them, well, from the point of view of an explosion coming from a major hazard facility and you're now within the consequence contour, there are two core hazards. And the first one, which has always been well known is that if you have an explosion coming your way, windows blow in and you can get the windows that turn into glass shards. This is a particularly well-known terrorist technique, which I've got to say Bob Browning, whom you recall, talked to me all those years ago and it arose from the (Hilton) Hotel bombing in Sydney, which is now so long ago (1978). I don't suppose anybody actually remembers about it, but the notion, and we've done work on major hazards facilities for a munitions plant in

(02:52):

Moama and the other one up in Shepparton, right at the back of Shepparton. And the idea that what you need to do to make sure that windows don't blow in and ensure explosion over pressure don't cause you problems is well known. At that institution, we were using NATO design standards for this purpose. It's not something you traditionally do, I've got to say.

(03:12):

Anyway, we sort of pointed out there's two core hazards, the windows blow in and shrapnel and the other one, which happens particularly if you put up a tile roof and you've got little gargoyles or something on it, the explosion, you pick up the roof tiles, knock 'em off, and the roof tiles can fall to the ground and clunk people down below. And for both these, if they get a pretty serious hazard and you need to address them.

(03:29):

And the two most obvious controls to do here is have a mental roof, a color bond roof of some sort, which they already had on their plans. And the other thing was to have laminated windows, a matter which they thought they had because they had to have energy efficient building. And one of the things, and one of the ways you do that is to have laminated windows. And the reason for that is that if the window blows in, it just holds the glass together. It's not a question of the robustness of the lamination. I mean, if you're really...

Gaye Francis (03:56):

...It just holds the shards together.

Richard Robinson (03:57):

The shards together. If you're really serious about this sort of stuff, you can have a window that'll withstand 3 0 3 bullets, but that's not what we need in this instance. Just got to hold the glass together. And interestingly enough, when you looked at the safety case guideline that the major hazards' site produced, if they said: if you had a problem, go inside and close your window curtains. And the reason we do that is so that when the glass shards happen, the curtains catch 'em.

(04:20):

Anyway, the council in the meantime was then saying, just don't increase the density. And then they started talking about it, or the lawyer for the council started talking about, having emergency procedures, which doesn't make any sense at all because you're talking about an explosion and explosions go sort of just slightly faster than the speed of sound, which is about 340 meters a second. Now they're about 500 meters from the boundary and about 750 meters from the probable hazard source, the explosion's going to arrive to two to three seconds. There's nothing you can do!

Gaye Francis (04:49):

Doesn't give you much time to enact an emergency evacuation plan. And probably the safest place to be would be inside anyway rather than outside and trying to evacuate some way.

Richard Robinson (05:00):

Well, I was living in North Melbourne with my family when the Butler's Transport fire blew up (1985) and I felt the windows rattle, galloped outside to have a look. That was probably about 2km away for me at the time. I knew it was an over pressure. You could feel the shockwave, couldn't see anything. And then I sort of saw it in the news later that day. But I was sufficiently far away that once... In fact, the consequence line was a kilometer away from the site boundary. And I've got to say, based on what we've seen and what popped up in the tribunal, I think that was probably a correct boundary distance.

(05:33):

The next podcast we're going to do is going to talk about the consequences of the major hazards regulator in Victoria, creating a consequence boundary, which we have to say is one of the best things that could ever have happened that we've been waiting for for the last 20 years.

(05:48):

But what I want to particularly just comment on was the actual way in which the VCAT tribunal operated, and from our point of view as experts, what this means. We sort of talked about it and as an overall observation we're pretty impressed with the VCAT process, although we were a little bit cranky about how long it all took.

Gaye Francis (06:05):

It was a very long drawn out process.

Richard Robinson (06:07):

But that's fair enough. And the decision still hasn't been made and we're not sure when that will happen. But for various reasons, and I'm pretty sure VCAT is overloaded, because one of the things that these consequence curves around the major hazard facilities has (resulted in) there's been a deluge of VCAT planning appeal cases going on to the Supreme Court. So the sheer amount of energy and resources going to resolving this is absolutely stupendous.

Gaye Francis (06:34):

And that's based on a single change; that it changed from a risk contour to a consequence contour. And so a lot more buildings or potential properties in these municipalities that have major hazard facilities are impacted by this change.

Richard Robinson (06:48):

Correct. Now one of the problems we had, because we're acting as experts, so when you return up as an expert, you are acting on behalf of the tribunal. You're not meant to be an advocate speaking on behalf of your client. Whereas the council actually had a lawyer representing them. And so an awful lot of the proceedings was taken up by legal argument between what planning rules applied, what planning precedence would take the case, i.e. the laws of man. Now we were trying to articulate the laws of nature. Just as an observation, I was a bit surprised that we were the only experts in the room. I was rather anticipating the council might have a technical expert and maybe the major hazard facility and even major hazards regulator might think it was worthwhile turning up to provide some insight so the laws of nature could be established clearly between all of the technical parties. That did not happen.

Gaye Francis (07:37):

I guess just clarifying that though, the technical arguments that were made during those practice meetings were apparently tested back with the technical experts in each of those organisations of the major hazard facility and WorkSafe, is our understanding. And then it was sort of brought them back to VCAT in the next session that: yes, we can confirm that that is the case.

Richard Robinson (08:00):

Well, that's the way we interpret their presentation as made by their submissions as made by their lawyers that the technical experts had reviewed our expert report and said: yeah, what we've said was fair.

Gaye Francis (08:10):

That's correct.

Richard Robinson (08:11):

That was my understanding. But you see, we were actually acting as, not as advocates but as assisting the tribunal. So we tried to put forward the most comprehensive understanding we could for the benefit of the tribunal. And to do that, we actually adopted our threat barrier technique, which paralleled the major hazards organisation's same process. And we basically confirmed that we thought what they were saying and what the regulator was doing was making a great deal of sense. And so if you look at the hierarchy control, the elimination option, delete the major hazard facility or delete the houses, that wasn't going to happen, nor was anybody contemplating that. Then you're looking at the preventative side to make sure the thing didn't happen in the first place and you had a five-year rolling safety case, which everybody seems to agree is working well because there'd been no incidents from this site and it had been around for a long time. I'm pretty sure I can remember going there 30 years ago and doing various safety case work. And so then it became down right to the mitigation, i.e. the question of how you would deal with the hazards after the explosive over pressure came this way towards these young couples' proposed development. And there were basically five controls.

(09:23):

It's just attenuation, the pressure attenuation by distance and it's generally cube law for at least a point explosion in space because the explosion's expanding as a cubic volume sphere. When it's close to the ground, it just gets a bit more problematic because you've got this pressure wave coming back up so you get a hemispherical wave. So it's a bit hard to sometimes figure out. And also you don't know where the explosion's going to be because it's a gas cloud. You don't know if its reaches, their fuel mixture, you dunno when it's going to find the ignition source. There's such a fabulous array of problems.

Gaye Francis (09:59):

And unknowns that change the circumstances almost every time that condition happens.

Richard Robinson (10:04):

The very rare occasion... I mean one of the ones that always fascinated me was that Professor Dougle Drysdale from Edinburgh University talking about the Bunsfield explosion sort of said the stoic metric mixture could only occur because they pollarded the trees in a way that it actually created a mixing device to get the air explosion mix just right before it found the ignition source, which apparently was a fire pump of vaguely ironically. But anyway.

(10:29):

The point was then you had the attenuation, then you had from our point of view, the controls to stop the explosion, pushing the glass in and knocking things off the roof.

Gaye Francis (10:38):

So building in design type stuff.

Richard Robinson (10:41):

Safety in design, basically.

Gaye Francis (10:42):

Safety in design.

Richard Robinson (10:43):

Then you had let's not have too many people there. And the last one was the emergency procedures, both of which we didn't think were particularly effective. And that came out.

(10:54):

What we didn't do because our young people didn't have any lawyer to cross examine us and draw out from us what were the really important points, i.e. the advocate's point. And as experts were not in a real position to say it. Was to actually just hammer the importance of what we're saying. And that was, and so I guess I'll just summarise it now, if we were the advocate of what we would've said. Now these young people didn't know this problem existed until somebody told them mid last year and they had their planning and building permits ready to roll. They have absolutely no control over this explosion and pressure wave coming their way. There is nothing they can do from their point of view, this is just like a force of nature, something they have to deal with. The two core hazards that they have to deal with after talking to competent consulting engineers, are the windows blowing in and the roof bits coming off.

Gaye Francis (11:43):

That were confirmed by the major hazard facility and WorkSafe.

Richard Robinson (11:46):

Correct. And in order to eliminate that hazard, what they had to do was have a steel roof, colorbond roof, and laminate the windows. And if they did that, they practically would've eliminated the hazard at the distance which they are because the attenuation did give them a lot of benefit.

(12:03):

Under the legislation, that's the OHS Act in Victoria, which is the enabling legislation for major hazards, you have to eliminate hazards so far as reasonably practicable and if you can't eliminate them and only then do you reduce them. The elimination option, they already had a colorbond roof. So you can't say that's prohibitively expensive or difficult. And to laminate the windows, well they actually suspected they already were, but the architect hadn't defined that because of the rejection of the permit. But to actually include that was trivial. You are not allowed to go to the next option, which is to reduce the number of people at risk, if you can eliminate the hazard in the first place. It doesn't matter if there's four or eight people, if the hazard's been eliminated, it is completely irrelevant. And to even discuss emergency procedures for an explosive potential where the best thing to do is just to rush in the house and lock yourself in and be secure...

Gaye Francis (12:59):

Nonsensical, isn't it?

Richard Robinson (13:00):

Nonsensical. But we didn't say that because we weren't allowed to act as advocates. And so I guess we have sort of, that's the one part of the process I didn't like, but we'll have to see what happens.

Gaye Francis (13:14):

And I guess that just also draws out the difference between the requirements under planning permit rules and the planning permit schemes compared to the OHS legislation and how do they fit in together and what councils are expected to do about it. And I think this is something that it's a bigger issue, isn't it? That needs to be thought through.

Richard Robinson (13:36):

Well, what puzzles us, and again we made it clear in our expert statement, which I presume if anybody wants a copy of, we can actually provide because it's our opinion, there's no reason why we can't. But I was pointing out how the gas pipeline people, high pressure gas pipeline, which we've done a lot of work for, we put engineering design calls in regularly and everyone signs off and the council signs off and Energy Safe Victoria signs off. We're actually sort of nonplus as to what's actually going on here. And particularly in terms of the council, it's like the council de-engineered itself. There were no experts from the council.

Gaye Francis (14:09):

Not technical experts.

(14:12):

Especially if your municipality's dealing with these sort of hazards, you would expect some sort of understanding within the council of those and what you can put in place. Because I would think from a council viewpoint, development's good! And as we talked about with our clients or with the young people is their house is actually safer than the older houses. If they put this new design in.

Richard Robinson (14:38):

It's safer for the eight people. If you leave it the way it is, it's more dangerous...

Gaye Francis (14:42):

...for the four people.

Richard Robinson (14:43):

And that means it's in everybody's interest to have it done.

Gaye Francis (14:47):

So if you take this as an overarching principle that you put these safety in design controls in place for new developments, all of a sudden in areas that do have major hazard facilities, you will get a safer community.

Richard Robinson (15:02):

The community will be more resilient, which is what everybody wants.

Gaye Francis (15:06):

So we hope you found our podcast, interesting today. Thank you for joining us and we hope you get to see you all or hear you next time we put it in a podcast. Thank you.

SFAIRP vs ALARP

Risk! Engineers Talk Governance
Episode 1, Season 1

In this episode of the podcast Risk! Engineers talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss the difference between SFAIRP & ALARP.

ALARP versus SFAIRP is still creating a lot of confusion within the risk industry and organisations, this discussion clarifies the difference and why organisations must work towards SFAIRP.

...the Act actually goes to some trouble and the precursor tool is the Victorian OHS Act 2004 has it in there… a particular clause or section that says you must achieve the highest level of precaution as is reasonably practicable.  So whilst it doesn't define SFAIRP, it does define reasonably practical. And then another portion of the Act says you've gotta achieve the highest level that you can and that's what the SFAIRP principle's all about.

Read the full transcript below.

Transcript

Megan (Producer) (00:02):

Hi & welcome to Risk! Engineers Talk Governance. My name's Megan and I work behind the scenes on the podcast, but also with hosts Richard Robinson and Gaye Francis on their businesses. R2A Due Diligence Engineers and also Apto PPE Women's and Maternity Workwear.Please enjoy this first episode of season one of the podcast, Richard and Gaye talk about SFAIRP and the difference between it and ALARP.If you enjoy the episode, please subscribe so you don't miss future episodes. Also, help us out and give us a rating if you do enjoy it so we can help other people find the podcast on this topic.The podcast is available on all podcast platforms. Please enjoy this episode and if you have any questions or any ideas or feedback, please let us know. Enjoy.

Gaye Francis (01:23):

I'm Gaye Francis, and with me today is Richard Robinson. We are both directors at R2A and today's topic is ALARP versus SFAIRP. I feel like we've talked about this a number of times, Richard, but welcome.

Richard Robinson (01:30):

And we've talked about for ever Gaye and welcome. And welcome Megan, who is our producer sitting in the sun over there and quite enjoying herself.

Gaye Francis (01:31):

On a beautiful Melbourne Autumn day. So I guess, where do we start for ALARP versus SFAIRP? There's so many conversations and people that say that there's no difference between the two.

Richard Robinson (01:43):

Well, interesting enough, and probably this might be the way to introduce it... I was giving a briefing on behalf of Rio Tinto for that national tailings dam conference, and they had a, he'd have to have been a criminal lawyer, giving advice. And one of the things he pointed out, because all the engineers were carefully saying, well, look, we're not lawyers - we don't interpret the legislation. But one of the things this lawyer pointed out was that so far as reasonably practical (SFAIRP) isn't defined in the WHS legislation, but reasonably practicable is. And we've been thinking about this for some time because obviously the legislation says you should eliminate hazards so far as reasonably practicable. And if you can't eliminate, (you) should reduce them so far as reasonably practice, which is the SFAIRP part. But if the legislation doesn't define SFAIRP, can you actually use the term?Now what we sort of realised was there's another aspect to the Act and the Act actually goes to some trouble

(02:34):

...and the precursor tool is the Victorian OHS Act 2004 has it in there even though we haven't adopted WHS legislation in Victoria. But this element is a particular clause or section that says you must achieve the highest level of precaution as is reasonably practicable.So whilst it doesn't define SFAIRP, it does define reasonably practical. And then another portion of the Act says you've gotta achieve the highest level that you can and that's what the SFAIRP principle's all about.So far as we can tell, the Act actually does (define SFAIRP), and I'd be particularly interested to see if there's any lawyers out there who could actually have an opinion about this because I think this is actually really quite important.

Gaye Francis (03:18):

So it really sets out what the intent of the legislation is and what the principle of SFAIRP is, rather than putting in the black letter of the law sort of stuff.

Richard Robinson (03:19):

Yes, that's correct. And the way legislation works, if you do get a case, the first thing the lawyers do is say go through the legislation and say what did the legislators intend? What did the parliaments intend when they put that clause in? And you're not always (or) all together clear. And when you listen to the lawyers and the judgements and so forth, they're basically interpreting the words from parliament. Now, again, it's a bit hard to know what parliament actually intended, but we've always assumed that it came from the common law. That's what Michael Toma says in his books, which we're willing to go with. And he's, uh, something of the guru in WHS legislation. And if it's coming from the common law, then it's coming from Lord Atkin, the Brisbane born English law lord from 1932 and Donahue versus Stevenson.

Gaye Francis (04:02):

Which is all about due diligence.

Richard Robinson (05:01):

It's all about due diligence and it was all about the principal reciprocity.I think I mentioned to you, I just found fairly recently an article by a Canadian law professor, which was a bit of a surprise to me cause I forget why I was tracking through looking for something, because I'd come to the view that Atkin was actually talking about the parable of Good Samaritan when he asked the question and who, in law, is your neighbour?And I didn't realise this, but the, well, certainly the high court judges or the House of Lords in the UK when they're doing a judgment, they actually write notes out, in case, I guess, one of them gets sick and another judge has to take over for some reason they've got this case study of what they've done and how they've done it and what they've discovered, and all these sorts of things. And this Canadian law professor's going through Atkins notes about this particular case. And he is absolutely crystal clear. He was given the reading on the Parable of the Good Samaritan. And quite literally that was why he concluded in the formulation of his neighbor principal.

Gaye Francis (05:03):

So the intent was clear.

Richard Robinson (05:38):

The intent was clear and the way he said it was clear.How did he put it? "The rule that you ought to love your neighbor becomes a law, you must not injure your neighbor". And the lawyers' question, "who is my neighbor?", that's the lawyers' question that's asked in the 2000 year old question. These lawyers have always been with us. You know, we're not gonna escape them in our lifetime. The lawyers' question, who's my neighbor receives a restricted reply. And the restricted reply is along the lines that you must take reasonable care to affect anybody you know, knowingly or unknowingly, that you should have thought about. And that's what the Parable of Good Samaritan's actually about. So it's just a principle that shows up everywhere.

Gaye Francis (05:43):

So we've gone sort of a little bit off tangent just a little bit, but that's not unlike us, Richard!So if we go back to SFAIRP versus ALARP, there is clearly a difference. And they're defined by different people.

Richard Robinson (05:59):

Well, Andrew Hopkins from ANU, he basically goes on about it to some length too. Uh, I didn't realize he's now an emeritus professor and according Ravi Nijjer, he's actually in high demand overseas at speaking engagements making the same point that there's no nothing in law, the ALARP principle just doesn't exist. And your duty's to achieve the highest level you reasonably can.

Gaye Francis (06:23):

So ALARPs been used in the risk business for a long time now, 30 years plus. And it really just talks about the hazard doesn't it; the level of hazard, the level of risk.

Richard Robinson (06:35):

And...

Gaye Francis (06:37):

Is it acceptable or tolerable; it's measurable in some way. And as we've said many, many times, it's a human construct of what people think the likelihood of those things are.

Richard Robinson (06:51):

Well, I think it goes a bit further. I think what they were trying to do, and I've gotta say a hidden history, I was probably guilty of this too, but what they were trying to do was make it a scientific concept, you know, the laws of nature so that there was something you could physically measure. But has been pointed out by lots of people, one of my former partners, Derek Viner, pointed it out too. You send two risk experts out there to go and assess the risk associated with a circumstance or situation. If it was truly a scientific concept, they'd all come up with the same answer.

Gaye Francis (07:17):

They do not.

Richard Robinson (07:19):

They never do. Unless you use an identical process, in which case you've just done the same thing twice. And everybody would know that because when you're sitting around a risk workshop doing risk assessments, nobody agrees.

Gaye Francis (07:49):

No, it's very, very hard to get consensus from the group. Everyone has a different perspective on what that is, especially when you're talking about what the likelihood is. So, I mean, for us, the SFAIRP principle is all about the precaution, the level of controls, the level of precautions and mitigations that are in place. So it's all about what needs to be done to manage the particular hazard rather than the level of risk.

Richard Robinson (07:52):

Correct. And the legislation's quite clear. You've gotta achieve the highest level of control you can.

Gaye Francis (07:59):

So for us, there is a clear difference. And I think some of the confusion comes out in that people are trying to define ALARP and define SFAIRP in a way that sort of matches their processes.

Richard Robinson (08:14):

Well, frustration of all this all came around because of the tolerability risk study by was it to Frank Layfield, I think it was, in the UK. And he tried to make risk into a scientific concept, and that was because he was listening to scientists, rather than talking to engineers, I think.Because the engineers always tried to meld the two. The scientists look at the laws of nature. The lawyers look at the laws of man. But the people who live in the sandwich in the middle are always the engineers. And I, for some reason, haven't quite understood, that engineers don't quite understand that they're the meat in the sandwich.

Gaye Francis (08:48):

They've gotta make it all work.

Richard Robinson (08:49):

We've gotta make it all work. And the problem with being an engineer is you're attached to the laws of nature.I mean, if you just talk about a financial problem, you can always argue about it in court after the event, whether you were reasonable or not. Because you haven't killed or maimed anybody. You might have damaged them commercially, but it wasn't a death matter. Whereas when you're dealing with a structure or a fire that failed to be controlled or something like that, people die. So you've gotta manage the laws of nature and get it right. Nobody's gonna forgive you for it if you get it wrong.I mean one of the things that really put me off, I think I just mentioned to you, I was, for some reason looking up the Registration of Engineers in Victoria and the person who signs off on the Code of Ethics and the interpretation of the Code of Ethics that they were opposing on registered engineers in Victoria.

(09:31):

The first point it says it is know the law. And then it goes on to speak about the Wrongs Act. Now I learned about the Wrongs Act 30 years ago when I was doing some expert witness thing. And a lawyer mentioned it to me, I didn't know anything about it. Anyway, it contains a thing called the Occupiers Liability Act, which shows the duty of care you have towards somebody who comes into your premises like a shopping center or something like that. And it's the common law duty of care. And it actually lists the principles that defined in pretty much the WHS legislation what constitutes reasonable practicability. It lists consequence, likelihood, and all these other factors. You know, it's a degree which you've got control and so forth.Now I've always quoted the Occupiers Liability Act and the consolidated version of the Wrongs Act.

(10:11):

In all the cases you would recall that I've done this. And you used to look at me and say, "Why is Richard including that?" And the answer was because the lawyers told me to. Um, and yet this lawyer is saying the first principal, the Code of Ethics is know the law. You can already see that somebody who spent a fair bit of time fiddling around with getting advice from lawyers. The legal opinion you're getting varies quite substantially. How on earth are the engineers meant to know about all this legal stuff? And yet that's the first duty as a registered engineer in Victoria. That is a stupendous. Let alone all the technical standards and things like that, that you have to consider.

Gaye Francis (10:47):

I think they're trying to make it so complicated with that sort of stuff. I mean, for us, SFAIRP is a governance principle in that it wants everybody that has the ability to control the hazard to work together to get the highest level of protection. I, for me, it's just some of the legislation and the standards and all of that stuff around it, which we will cover in another podcast, I'm sure...

(11:13):

They're trying to make it so complex. But if you look at it from a top-down governance viewpoint, it's about getting all of the parties in the room, all of the key stakeholders in the room that has the ability to control this hazard to agree on what the highest level of precaution is. It's not allocating blame somewhere that it's a single person's responsibility. It's everybody's responsibility.

Richard Robinson (11:37):

Well, it actually knocks the issue of a confident person around a bit, which has been a particular popular thing to put in legislation because if you need the collective wisdom rather than just one person signing off, how do you do it? And as that Professor Sidney Dekker points out from Brisbane University, he's an airline pilot turned psychologist, there are so many rules out there now and that's one of the problems with standards. I mean, there's so many, so much stuff out there. It is not possible one person to know at all anymore. It just isn't possible. And the problem with that is if you're coming bottom up and you're expected to know it all, well you can't. And that's the same thing with that first question, the regulator on the Code of Ethics Victoria or Code of Practice for registration of engineers; it is not possible for an engineer to know all the law that this, obviously lawyer, was speaking to.

Gaye Francis (12:25):

So I mean, from our viewpoint, there is a difference between ALARP and SFAIRP. ALARP is hazard focus and if you've seen any of our presentations we go through that in quite a bit of detail of why that's the case. And the SFAIRP principle is really about looking at the controls that can be put in place to make sure that the hazards are managed appropriately.

Richard Robinson (12:46):

It's all about the controls. And that was the other point. Remember how we demonstrate that we like single-line line threat barrier diagrams as a way to construct an argument that'll go from the workers and the people actually doing things, to the board and all the lawyers, and everybody else in between that gets hold of things. But one of the things we do with our threat barrier diagrams now is we put in precautions that are the responsibility of others in a different color so that you can see that the sequence of control is going through the hierarchy. The hierarchy in the legislation is eliminate and then reduce. And the hierarchy in the common law is eliminate, prevent and then mitigate. And most of the regulators are completely confused cause they've got four or more, generally up to six, which just leaves everybody in a state of confusion.

Gaye Francis (13:31):

It does.

(13:35):

So that brings us to the end of our podcast for today. If you'd like any more information about ALARP versus SFAIRP, we do cover it in our Criminal Manslaughter booklet, which is available on our website (www.r2a.com.au). Thank you for joining us and we hope you can join us next time.

Richard Robinson (13:53):

Thanks Gaye. Thanks Megan.