Due Diligence as a Governance Process, Dam Safety & the Relevance of Due Diligence (Season 4 Wrap)

Risk! Engineers Talk Governance
Season 4, Episode 10

In the final episode of Season 4, Richard Robinson and Gaye Francis wrap up the key theme of the season of due diligence as a governance process. They also provide another industry example in Dam Safety, and discuss the relevance of WHS/OHS legislation and the state of prosecutions.

Key take-aways include:

•  The due diligence process is a governance process that focuses on high consequence, low likelihood events rather than risk management.

• Dam safety highlights how regulators focus on the worst-case scenario of a dam failure rather than likelihood.

• The due diligence process involves four key tasks: completeness checks, identifying critical issues, determining reasonable controls, and implementing a quality assurance system. 

• WHS/OHS legislations must be integrated across safety decisions. 

• WHS prosecutions seem to be more prevalent in jurisdictions where it’s been in place a while, with regulators more likely to prosecute smaller to medium-sized organisations due to the increased likelihood of winning.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, the last for Season 4, due diligence engineers, Richard Robinson and Gaye Francis chat about the season's overall theme of due diligence as a governance process across industries. They also provide another example in Dam Safety and discuss the relevance of WHS/OHS in legislation and prosecutions.

(00:30):

If you enjoy listening to our podcast, please give us a rating and also don't forget to subscribe on your favourite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, head to www.r2a.com.au. We'll be back for season five in 2025!

Gaye Francis (00:52):

Hi Richard. Welcome to the wrap up of season four. Forty episodes down, can you believe it?

Richard Robinson (00:58):

It's very hard to believe, Gaye, now that you mentioned it.

Gaye Francis (01:02):

Season four we focused on some industry-based case studies or examples of which we've applied the due diligence process to. And I think one of the outcomes is that the due diligence process is a governance process. It's focused at the...

Richard Robinson (01:23):

High consequence, low likelihood things. That is, not at risk.

Gaye Francis (01:27):

Not at risk.

Richard Robinson (01:28):

And therefore does not follow the risk management standard.

Gaye Francis (01:31):

And when we use the word risk, we mean the appreciation of consequence.

Richard Robinson (01:36):

Simultaneous appreciation of likelihood and consequence.

Gaye Francis (01:38):

Okay. Thank you for finishing my sentences. <laughs> We've been doing a lot of these, haven't we? So I guess the way to bring it all together in this particular episode, and we've got a couple of other observations that we've had over the last few months or so, is maybe to use Dam Safety as an example.

Richard Robinson (01:57):

Indeed.

Gaye Francis (01:58):

And the due diligence process, the four key areas that we look at. The four key tasks are: Completeness check, what are the credible critical issues? What are the controls you can put in place in the circumstances? Which ones are reasonable? And then a QA system to make sure that the ones that you agree to are sustained.

Richard Robinson (02:17):

And the Dam Safety people are pretty clear on this. Dam breaks is the (issue) that motivates them the most. And so they look at the worst case flood that could result from a total dam break. And they don't really care about likelihood. They're just saying, if that happened, how bad could it be?

Gaye Francis (02:30):

And that takes into account a whole lot of different things, doesn't it? And we probably touched on it in the bushfire episode that we did, and it's really about the vulnerability.

Richard Robinson (02:40):

Correct.

Gaye Francis (02:40):

Are there people exposed to the potential flood from this dam?

Richard Robinson (02:44):

And then in that case, what are your options and what's available to you and in the circumstances, what's reasonable? And that's where the mechanisms by which these things could happen become particularly important.

Gaye Francis (02:55):

And ANCOLD (Australian National Committee on Large Dams), I think interestingly, although they still use the term ALARP, I think, which we've had many discussions with the Dam Safety people, but what they have done is they've sort of got a graph, but it's got an upper limit to where it becomes prohibitively dangerous, I guess. But what they've done is they've taken away that lower limit. There's no lower limit to risk.

Richard Robinson (03:16):

Correct. So they actually basically stopped using target levels of risk and safety for the most part. I mean, if you conclude something's prohibitly dangerous, you've got to stop it. Now, precisely how you come to that view is an interesting question. But if you've got any doubts about the dam, basically if you've got doubts about a dam, you pretty much start draining the dam if there is things and people at risk.

Gaye Francis (03:34):

And I think that was one of the questions we had. We had one of the regulators come in and there was a dam above a community and it was higher than the houses.

Richard Robinson (03:42):

The water level was higher than the roof of the houses down immediately below the dam. And the dam safety regulator turned up and was looking at it and looking at what the policemen looking at that saying, how the hell do those houses get there? What planning scheme let that happen?

Gaye Francis (03:56):

Which we have touched on again in this season. Bushfire again, and also major hazard facilities and that planning. So like everything, the due diligence approach, it's not a cookie cutter approach. You can apply a similar process, but it's about actually thinking the things through that are actually relevant to your particular circumstances.

(04:22):

I gave a talk at a Co-op Federation leadership conference or workshop recently in the last month. And they were mainly co-op retail facilities, but they also provided services like crop dusting and water haulage and things like that. So they had a whole range of things that were potential issues for them. But one of the chairs came up to me after the session and said, okay, I get it now. It's all about the process. And documenting the process in a diligent manner to say that we've actually thought through the things that we could be exposed to, the things that we can do, and then making sure that we put those in place.

Richard Robinson (05:06):

Well, we've discussed this many times. It's not about being right, it's about being diligent. And you can always be diligent, but you can't always be right. And that's the point.

Gaye Francis (05:14):

I think one of the other interesting things that has come out of this season, and we did another podcast of it, was the relevance of the WHS and OHS legislation.

Richard Robinson (05:24):

Yeah, it's driving everything. I mean, what I told you, we had, I think we mentioned in a previous podcast, but I had that discussion with a fellow doing a PhD on how security and fire integrated together. And we had a security guy and me and he was talking to both of us, and he asked the question at the end and both the security advisor and I looked at each other and said, it's got to be harmonised and it's all got to go, and it's all driven by the Work Health and Safety legislation. And this researcher was: You both agree on this point? Because we were from completely different backgrounds with completely different understandings. He was an ex-military fellow who'd gone into security. And I was a fire engineer, factory mutual trained HPR (high protective risk) engineer, and we were of one mind. And I think he (researcher) was really genuinely surprised.

Gaye Francis (06:06):

But even when we work with organisations, I don't think they sort of think that the WHS legislation's almost off to the side. Safety is still being thought about in a silo almost.

Richard Robinson (06:17):

So fire is protection. You may recall when we did Q1, perhaps I shouldn't say these things, but the fire engineers were so relieved when the due diligence engineers turned up and started speaking WHS.

Gaye Francis (06:27):

Yeah. So WHS and safety should be business as usual -- should be integrated into all of these aspects. And I think it does allow all of those things to be brought together in an integrated sense.

Richard Robinson (06:40):

Yeah. The other thing which we were going to talk about, which you were particularly going to focus on was what we discovered about prosecutions. Because a lot of WHS prosecutions arer going on, and it does seem that the longer the state has had the legislation in place the more likely they are to prosecute. So Victoria's got about 10 years on every other jurisdiction. We're about double the prosecutions from what I've seen on the various websites. But we sort of discovered this thing following from that conference you attended last year and talking to an ex regulator from Western Australia.

Gaye Francis (07:09):

And the information that came out of that, I guess, was that they're typically prosecuting small to medium sized organisations.

Richard Robinson (07:19):

Because it's more likely to be successful.

Gaye Francis (07:21):

Because more likely to be successful. And there's a couple of reasons for that. The distance between the board members and the senior executive management and the people that are working on the ground is a lot smaller, distance wise in smaller, medium sized organisations. Where it's quite large still in larger organisations. So the notion of the corporate veil is still working.

Richard Robinson (07:45):

The big organisations can hire bigger, better lawyers and presumably more expert witnesses. And it's just harder to get them.

Gaye Francis (07:54):

And we sort of tried this proposition, I guess, at one of our courses quite recently, and, you're right, there was an ex regulator from WA there, and they said, that's exactly what's happening. They said what they're trying to do is they're trying to make examples of organisations and it's easier to prosecute and successfully prosecute.

Richard Robinson (08:17):

And that flows onto the comment we made previously, and it's a source of frustration to us. There are two types of regulators, those who think that the number of successful prosecutions is a measure of success, and those who think the number of successful prosecutions are a measure of failure. And it does seem this decade has turned into the decade of the number of successful prosecutions are a measure of success.

Gaye Francis (08:37):

Which is really interesting. And there may be a couple of other reasons for that. Regulators seem to be having less technical expertise in their organisation.

Richard Robinson (08:45):

I don't think they can get the people. I don't know that that's by choice by the way,

Gaye Francis (08:50):

But that's another observation. And one of the ways that they can do it is by doing that sort of compliance audit.

Richard Robinson (08:58):

Yeah. If it doesn't compliance. We've got you.

Gaye Francis (09:01):

So as a full wrap up of this season, we've talked about a number of industries. We've talked about dam safety today and bush fires, major hazard facilities. We've talked about rail and we've talked in another episode, we talked about electricity industry. So the due diligence process is really, really useful for those high consequence, low likelihood events. And if you look at all the controls that could be put in place and determine what's reasonable in the circumstances, what else can you do? You've been diligent and Richard's line: You can't be right all the time. Which engineers like to be.

Richard Robinson (09:41):

Well, they try to be!

Gaye Francis (09:44):

But you can be diligent. And I think this governance and due diligence approach is asking people to think about the key issues of concern and make sure that they're being managed properly.

Richard Robinson (09:56):

Well, that was basically what I was retained to give that expert witness advice in the Cuddle Creek fire. And what I was asked basically: Was the process that the defendant undertook reasonable in the circumstances,

Gaye Francis (10:08):

And what else could you do?

Richard Robinson (10:09):

That's basic point.

Gaye Francis (10:11):

We've talked about a lot of other sessions that you're not going to stop all things going wrong.

Richard Robinson (10:17):

You're not going to stop all bushfires, it's not going to happen.

Gaye Francis (10:19):

No, but was there anything else you could do? And I think that's when people get cranky.

Richard Robinson (10:25):

Reasonably can do.

Gaye Francis (10:26):

Reasonably can do. When people get cranky, when there's something that could have been done, if it had been done, would've stopped it going wrong or would've mitigated the consequences in some way.

Richard Robinson (10:37):

Yep.

Gaye Francis (10:38):

So thank you for joining us for season four and we will be back with season five very soon. Thanks everyone. Thanks Richard.

Richard Robinson (10:45):

Thanks everyone. Season five, huh? <laughs>

Bush Fire Risk, Due Diligence & Mitigation Controls

Risk! Engineers Talk Governance
Season 4, Episode 9

In this episode, Richard Robinson and Gaye Francis discuss due diligence for bushfires.

Richard has been involved in advising on bushfire risk and controls since Ash Wednesday in 1984, while both Richard and Gaye as R2A were involved with bushfire assessments post Black Saturday in 2009.  

Their discussion highlights:

• Bushfire season is getting longer, and the ability to prepare for it is getting shorter. Volunteer firefighters are also declining.

• Bushfire best practice for local planning for protection has adopted a vulnerability approach – criticality rather than likelihood.

• From a due diligence viewpoint, we know we cannot stop bushfires. But, what are all the controls that we can put in place?  

• Often it's not the threat of the bushfire itself, but the interaction of a community or people with the bushfire – the vulnerability of peri-urban areas.

• Building codes have been updated to improve bushfire resistance, but challenges remain around prescribed burning and access of remote areas during fires.

• Prepare your property, but be ready to evacuate early on high-risk days, as access can quickly become blocked.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss due diligence for bushfires. We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

Gaye Francis (00:30):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:32):

Good morning, Gaye.

Gaye Francis (00:34):

Today what we thought we'd talk about is bushfire risk, and we're getting into the hot part of the year (in Australia) and bushfire season is fast approaching. Although speaking to CFA (Country Fire Association) number of years ago, they're saying that the bushfire season seems to be getting longer and longer, and the ability to prepare for such bushfire seasons is getting shorter timewise.

Richard Robinson (01:00):

And also some of the CFA chaps I've talked to, getting volunteers is not the way it used to be either.

Gaye Francis (01:04):

No, that's very true. People aren't living in their community as much are they? And helping out.

Richard Robinson (01:10):

Well, I was particularly interested as I commented, I was busy down at my daughter and son-in-law's place mowing and slashing on the weekend because they live in the bush in Gippsland (Victoria) and making sure that their house is clear and all those good things you're supposed to do.

Gaye Francis (01:22):

So helping out.

Richard Robinson (01:24):

Yep.

Gaye Francis (01:25):

What we thought we'd talk about today was the bushfire risk and then the controls that you can put in place to mitigate against those. And I guess our involvement, well, Richard's involvement in particular started very early on after the Ash Wednesday fires in, what'd you say? 83? 1983.

Richard Robinson (01:43):

Thank you. Thank you for reminding me of that.

Gaye Francis (01:44):

And then we've had some other involvement in bushfire assessments over time, particularly the Black Saturday bushfires in 2009. And we were part of the Royal Commission, which we've talked about previously in the electrical distribution podcast that we did.

Richard Robinson (02:01):

Well, the thing that was interesting about that. At the time I was working for GHD with my then business partner who was the principal planner or became a business partner, and I was the senior risk engineer. And we'd written a paper after Ash Wednesday, so it presumably would've been in 84, maybe 85, basically summarising a vulnerability approach to bushfire risk management. And we dug it out and I must say my son looked at the papers. Gee, that's an old format. That was a really old paper, isn't it?

Gaye Francis (02:30):

It's almost typeset rather than computer set, Richard. <laughs>

Richard Robinson (02:35):

Well, the picture's sketched by hand, isn't it?

Gaye Francis (02:38):

It is.

Richard Robinson (02:41):

Anyway, but what I found completely fascinating is that we then downloaded some stuff from bushfire, best practice from CSIRO (Commonwealth Scientific and Industrial Research Organisation) and local planning for bushfire protection from Environment Land, Water and Planning, and they also have adopted the vulnerability approach, which is the very military intelligence approach, which basically is a criticality driven approach. It doesn't ask the question how likely something is because bushfires are basically generational, but you know that they will happen. It's a bit like the Powerline and Bushfire Safety Taskforce work and the REFCLS (Rapid Earth Fault Current Limiters) or ground fault neutralisers, they've apparently worked very well from what your feedback was. And has stopped, the likelihood of bushfire starts from electrical faults on the network. But that doesn't stop bushfires.

Gaye Francis (03:23):

No, because we know that bushfires have started for a whole lot of reasons, often human related.

Richard Robinson (03:29):

Well, I thought the one always amused me was people driving somewhere to go to Eildon or go down to the Gippsland Lakes or something like that, about an hour and a half out of Melbourne, their bearing on their trailer gets so hot that it burst into flame and then they pull over on the side of the road and the bushfire starts. It is a source of frustration to the CFA. I've had this explained to me several times.

Gaye Francis (03:49):

So I guess from a due diligence viewpoint, we know that bushfire starts. So then what are all the controls that you can put in place? And I think one of the interesting things about this is it's really not the threat of the bushfire itself, it's the interaction of a community or people with the bushfire, isn't it? And I think we talked about it in the planning, urban planning, episode where we talked about major hazards. It's that vulnerability and what do you call it, the peri-urban.

Richard Robinson (04:19):

Where is the bush and the people who interact. And I think I mentioned in the previous episode, if you read Luke's Bushfires in Australia from CSIRO, he sort of points out in the 1930's if you're around Melbourne, it was Sandringham sort of places. And then in the 1980's and 90's it was Gembrook and places like that. And in 2010, it was Marysville and Kinglake and places like that where people have been moving into the bush and there was poor access, poor water, all those sorts of things. But a very nice place to live otherwise.

Gaye Francis (04:51):

I've even noticed on the news and talking about people are going out to live in those places, but they're not necessarily "country people". If you've been involved in a bushfire, you move on, you typically don't rebuild, you move on.

Richard Robinson (05:07):

You move back into the suburbs because you don't do it twice.

Gaye Francis (05:12):

So the people that are living in these areas are often newbies. So I've noticed even on the commercial radio and news and TV at the moment, they're doing a lot of educational pieces around that (e.g.) prepare your house -- like you went down to your daughter's on the weekend and made sure everything was cleared around the house and make sure you've got a plan on those days. How are you going to evacuate? So I thought what we'd do is we just go through, I guess your threatened vulnerability assessment. So you were doing due diligence all the way back in those time.

Richard Robinson (05:43):

Well we didn't call it that!

Gaye Francis (05:46):

But it was the right thing.

Richard Robinson (05:48):

But just making sure that all reasonable practical controls were in place. And I think the one that always jumped out, because it was partly because Kevin was a town planner was that the way the bushfires happened, you get a hot northerly and you get the bushfire coming south, and then when they get the wind change, it goes from west to east. So if you're on the downside of that long skinny fire, you're suddenly at risk. So from the point of view of a township in the bush, you don't want developments to the north or the west and golf courses to the west, where the grass keeps mowed and things like, that just gave you a big fire break. Or potato fields or something that's not there at the height of summer.

Gaye Francis (06:20):

Right. And is that carried through, do you think, to most townships now?

Richard Robinson (06:25):

Oh, that's what, when you read these bushfire risks and best practice guides and all these sorts of things, I think it's pretty much doing it. They're ignoring the likelihood side as you've pointed out, and it's all being driven by the vulnerability on a criticality basis.

Gaye Francis (06:41):

So I guess that's part of the protection. We talked about REFCLS potentially as an ignition source control in relation to powerlines.

Richard Robinson (06:51):

And that's likelihood though.

Gaye Francis (06:53):

I guess the golf courses and stuff is part of the prevention, but a lot of work is being done around mitigations, isn't it? The minimisation of the consequences. And I think after Black Saturday, a lot of the building codes put in place bushfire attack level, and there are requirements to then...

Richard Robinson (07:12):

Building control how the house should be resistant. Like you should have a tin roof, desirably, clear your gutters out, fill them with water if you feel like it, and have a non-combustible structure.

Gaye Francis (07:21):

And I think they were trying to stop the fire getting under the house as well. So you had to have it sort of blocked in so there was no distance. So there's been a lot of work done around those things. Bushfires aren't going to go away with climate change.

Richard Robinson (07:36):

Not it south west Australia.

Gaye Francis (07:36):

With climate change they're saying that they're becoming more likely.

Richard Robinson (07:41):

More intense too. But that's part to do with the fact we haven't been doing enough burning off. I mean, it's one of the complications everyone recognises that you should keep fuel loads down, but the window to do the fuel load burning (is difficult) because the fire season is getting longer, there's less time to do that. And you might recall there's been some instances where it was the burning off that got away that's caused the fire, which was obviously somewhat of an embarrassment. So it's actually got complicated and it's not getting any easier. And as we also commented too, that the number of volunteers for the CFA is probably generally declining, and there's some other issues associated with that that they haven't been thought through.

Gaye Francis (08:17):

So the ability to do some of this planning work that they've relied on to minimise the consequences is getting harder and harder to do.

Richard Robinson (08:24):

Remember the CFA was created as a result of 1939 fires. And one of the consequences of that was that small fires tend to get put out, but it's when the big fire happens, there's not enough firefighters to go around and to stop the small fire from becoming a big fire. So that there's sort of an obvious size. And the way we've been doing it, it's like, I think I commented since they've gone days of total fire ban, there's never not been a black ash or red day that wasn't on a total fire ban day. And the ability to call it now and particularly catastrophic days got really, really good. So talking to my daughter, the plan is on a total fire ban day, the kids and my daughter are probably gone. If it's a catastrophic day, everybody's gone.

Gaye Francis (09:07):

And you've got to go early, because we've talked about that in other cases as well as it's the access to some of these places that is really tricky. And the ability for people to get out if they leave it too late almost disappears.

Richard Robinson (09:21):

You can't, because there's trees down everywhere. I mean, the storms of winter, they've got trees down all over the place and you have to do a U-turn and go around the other way.

Gaye Francis (09:29):

So I guess our advice, if you want to call that, prep your house, but if you are given a warning to leave on a bushfire day, I think that's probably...

Richard Robinson (09:41):

And the way they're doing it now, you will get a message on your phone.

Gaye Francis (09:44):

It's very clever, isn't it? They've done a lot of work around that.

Richard Robinson (09:48):

So yeah, from our point of view, I mean, it was a generation ago, I wrote that paper, and so far as we could tell, most of the things in that paper have been done. It's sort of interesting to say all these things at that time, although at another level it's a little bit frustrating.

Gaye Francis (10:02):

I think the important thing is to make sure that we can continue to talk about these things though, because they don't go away.

Richard Robinson (10:09):

No, exactly.

Gaye Francis (10:10):

As you said, the bushfire only comes up every 25 or 30 years, and unless you've been involved, you don't sort of think that it's going to happen to you. But all of these controls remain robust and remain relevant that I think it's really important to keep talking about them.

Richard Robinson (10:30):

Yep.

Gaye Francis (10:30):

So thank you for joining us today, Richard, and we'll see you next time. Thanks everyone.

Richard Robinson (10:36):

Thanks Gaye.

Due Diligence in the Electrical & Power Industry

Risk! Engineers Talk Governance
Season 4, Episode 8

In this episode, Richard Robinson and Gaye Francis discuss due diligence in the electrical and power industry.

They discuss due diligence and risk management considerations in the sector, with examples that focus on renewable energy sources like wind turbines and the potential role of nuclear power in Australia's energy mix. Key points include:

• The need to carefully assess and document the safety and emergency protocols even for foreseeable events like fires.

• The trade-offs involved in designing effective systems which can sometimes introduce new risks.

• The challenges of transitioning to a more distributed, renewable-heavy electrical grid, including the need for reliable baseload power and the shifting seasonal demand patterns in Australia.

• The thorough, "cradle-to-grave" approach taken by Finland in developing nuclear power, which may serve as a model for Australia.

• The difficulty of developing a coherent, long-term national energy policy due to the political complexities involved.

The full episode on Nuclear Power is Episode 9, Season 2 of this podcast.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss due diligence in the electrical and power industry.

(00:13):

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

Gaye Francis (00:32):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:35):

Morning Gaye. We're quite surprised how many people are listening to our podcasts too, aren't we?

Gaye Francis (00:39):

Pleasantly surprised. Absolutely.

(00:42):

Today we're going to talk about the electricity industry and do one of our industry related podcasts. And I guess the reason for doing it is we have just been appointed on to the Energy Safe Victoria panel to assess safety arguments or safety cases from the different power utilities. And also the timeliness around the discussion around wind turbines and particularly the wind turbine fire that happened down in Portland, I think it was the 30th of June this 2024. So that was sort of our introduction. We've got a couple of other case studies that we can talk through that we've worked on at R2A, just to show you the breadth of the different types of work that we do in the electrical industry. But I guess if we start with the turbine fire, Richard, and go from there.

Richard Robinson (01:35):

Well, I can't actually remember what we we were going to say about it Gaye because I remember we were surprised at the time about it because it did surprise us. I mean obviously these things are foreseeable. There will be turbine fires, there's nothing remarkable about that. And the question that became how it was managed electrically, I presume the think was instantly isolated.

Gaye Francis (01:52):

Correct.

Richard Robinson (01:53):

And then whether or not there was proper fire suppression systems or it was just allowed to burn out. I mean obviously if it happened on a catastrophic (fire warning) day and it was dropping sparks and things around that could be fairly complicated

Gaye Francis (02:03):

Rather than in the middle of winter. My understanding was, and I think that's where the discussion is going in the investigation, should fire protection be put on wind turbines? So they did allow it to just basically burn out, but one of the turbine blades fell off. And as you said, if that was a catastrophic day and all of the grass around it was very, very dry then would that have started a fire? It did start a small grass fire, but the consequences weren't there at the time.

Richard Robinson (02:32):

Well, this sort of flowed onto the fact that I'm still acting as an Expert Witness for the Cuddlee Creek fire in South Australia before the Supreme Court, which is a class action. Now I obviously can't talk too much about it, but I think what was interesting, I wasn't asked by the respective lawyers to what I thought the decision that ought to be made. What I was asked to do was go through the process by which they came to the decision. And I think that's what all this due diligence stuff is about, which is what we hammer: precaution due diligence. You can't always be right. That's one of the points the courts understand. But what you can do is be diligent all the time and diligence means that you thought the thing through and you came to a reasonable basis. So it's a bit like whether or not this thing should have had fire protection systems installed because you can install fixed fire protection systems on remote devices like engines on aircraft, always have extinguishing systems built into them. You can buy different technologies. The Russians, for example, used to use a form of halon on which put out fires particularly well but wasn't very good for people. So you wouldn't want to be around when the system went off where other designs like Halon 1301, they could release it inside a computer room at the concentration that would extinguish a fire, but it wouldn't extinguish the people, which is nice and was good. But it wasn't quite as effective as the other halon stuff that the Russians were using as just extinguishing fires.

Gaye Francis (03:55):

But that comes down to that balance, doesn't it? What is the risk and then what other things does it introduce potentially.

Richard Robinson (04:01):

Correct. And you'll be aware we did that other job, which perhaps I shouldn't speak about, fire protection on vessels, and they had a gaseous extinguishing system, which if it got too hot, converted a number of the products of combustion to hydrogen fluoride, which basically would go through anybody's PPE, including the people trying to put the fire out, which means in effect if the fire got hot enough, you really had to abandon ship anyway.

Gaye Francis (04:24):

Yeah, just let it go.

Richard Robinson (04:25):

And so the fire control system in some ways created a greater hazard than the fire itself, which is obviously problematic and there's something you should really try to avoid.

Gaye Francis (04:34):

So I guess going back to the turbine fire, it's not about necessarily what was or wasn't in place. It's really the process that the operator went through to decide on what their emergency protocols were and what they did have in place. And I always say to our clients, I think sometimes it's even more important to document why you're not going to do something as to why you think it's unreasonable.

Richard Robinson (04:59):

Well, I'm completely certain it would've had thermocouples all over it, so they would've known it was getting hot. And maybe all you do if you think you've got a problem like that is you just turn it to side, feather the blades and just turn it off and isolate it from the network so there's no further power going into it and it can't possibly, you'd expect at that point everything would go inert.

Gaye Francis (05:18):

So before the fire actually started it just gets hot. You think that was an option?

Richard Robinson (05:21):

Well, that's the mechanism. That's part of the question was what's reasonable in the circumstances, how would you know? Anyway. Now that sort of led onto a rather interesting discussion about power networks and I don't know if anybody's aware, but there's sort of an interesting philosophical argument going on Engineers Australia about nuclear power and whether or not nuclear experts should be addressing the question. Now we're kind of... Gaye, because she spent all this time in Finland and the Fins are very keen on nuclear power obviously because they don't have much sun in winter.

Gaye Francis (05:51):

No. And they didn't want to rely on gas from Russia.

Richard Robinson (05:54):

So there are very good reasons for going with nuclear power.

Gaye Francis (05:57):

Correct.

Richard Robinson (05:59):

And the way they go about it is particularly thorough. Now we've talked about this previously, but they don't until they're completely happy to say if they won't turn it on, they're very thorough people.

Gaye Francis (06:08):

I think the last reactor that was added to the Olkiluoto system was 20 years in the making just to get all of everything right and they were comfortable with the safety of it.

Richard Robinson (06:22):

Well see, what's strange about this is, I mean I'm just reading a couple of things and roughly now, last time I looked at some reports about this, Australia's about 45% renewables at the moment, but in the last year, I think twice the renewables have actually been generating a 100% of power. So the need for base load thermal power stations has declined. Now what's really curious about this is when you look at all this sort of stuff is that once upon a time we used to define what we required for power by the maximum load, which was winter, which is when thermal power stations are at their best when you've got the cold weather for the chillers and obviously heating and burning water to get the energy out of it. Now, thermal power stations are at best around about 30% efficiency just like cars in terms of the energy you get out of the fuel and converting to electricity. They're quite low efficiency. And most of our thermal power stations in Australia are aging badly. But the question is what happens with the renewables? Obviously when the sun's shining and in summer, particularly, we get a lot of surplus power.

(07:20):

And what changed though in Australia was that once upon a time, peak load was winter when we're trying to keep warm and now it's flipped around to air conditioners trying to keep us cool. And so you've got this whole paradigm shift in the way in which you're thinking about how power is generated and how you're trying to consume it. And the entire network was never designed for that kind of distributed generation as opposed to centralised generation. And I have to agree on all the politics of this sort of thing that you're going to need some reliable base load because remember when you're trying to restart, we did the black start restarts in New Zealand, you need, they're relying on hydro. You need a nice...

Gaye Francis (08:01):

Stable and reliable base load to be able to do that.

Richard Robinson (08:04):

Base load and generator and then you can start building the network back once you've blacked out. Now from my point of view, we are just a bunch of engineers discussing this, trying to work out what might be a way forward. But the question of nuclear power otherwise, but having a stable nuclear generator somewhere wouldn't actually, as opposed to building coal fired power stations because building coal fired power station, getting the coal out of the ground is quite a dangerous occupation. There's a horrendous lead time for a thermal power station just like a nuclear reactor. And the Fins, if we adopt the finished method of making nuclear power safe, maybe that's what we ought to do or hire us some Fins.

Gaye Francis (08:43):

They do some cradle to grave stuff, they take it all the way through.

Richard Robinson (08:47):

Well, they actually dispose of their own nuclear waste too.

Gaye Francis (08:49):

They do. Correct.

Richard Robinson (08:50):

Unlike we've failed that test miserably in Australia, haven't we?

Gaye Francis (08:54):

The power plant, my understanding is the power plant doesn't get approved until, as I said, the cradle to grave and the burial of the spent fuel rods has been addressed.

Richard Robinson (09:05):

So they actually competently think it through, which I don't see many other societies actually doing. So there's a whole lot of interesting issues here and you and I, we talk about these things, but we don't have a clear view on the matter (of nuclear in Australia).

Gaye Francis (09:18):

But I think what we've seen is in the power industry, what's required or what we're using it for and how it's being generated is changing. And it's sort of that strategic approach, isn't it, to an industry that you almost got to look that 20 to 30 to 40 years out, what does it look like? And then what do we need to achieve that? Whereas we keep creeping up on it and there's no head room left in the network.

Richard Robinson (09:47):

And one's pretty much gone so far as we can tell.

Gaye Francis (09:49):

Everything's aging. So we're sort of at a stage where things are starting to come crashing down, but we don't have an overall policy or framework to say this is what the best solution is or the optimum solution for either Australia or different parts of Australia, to say: And that's what we're all going to work towards. It's unfortunately very political and political timeframes, which when you're talking about those sort of projects that are five and 10 years out, certainly don't fit the political cycle.

Richard Robinson (10:21):

Well, you've heard my little story about my solar system on my roof, which when I put it on it was a pretty good return for the power I put into the grid, but just as it paid itself off, the inverter died and I had to replace that. Now they give us such little amount of money, the whole thing wasn't worth the trouble, let me put it that way.

Gaye Francis (10:38):

No, you only get the benefit from what you use.

Richard Robinson (10:41):

Well they don't do that anymore. They charge you for what you use and you get a little bit back for what you sell.

Gaye Francis (10:48):

Oh, that's really not a good deal, is it!

Richard Robinson (10:49):

It's not a good deal anymore.

Gaye Francis (10:53):

So it's really that precautionary approach. What do we want it to achieve? And I guess we've talked about it before, I think on one of our podcasts, but Richard and I were the risk management experts on the power line bushfire safety task force. And then I followed on the committee.

Richard Robinson (11:11):

This arose from the Royal Commission into the Black Saturday fires where it killed 173 Victorians.

Gaye Francis (11:19):

And they took on that precautionary approach and put in REFCLS (rapid earth fault current limiters), which...

Richard Robinson (11:26):

Ground fault neutralises for those who don't believe in REFCLS.

Gaye Francis (11:30):

Thank you, my technical brain. So they put those in and our understanding is that they've worked really well and where they've been installed, haven't started a bushfire in those particular areas.

Richard Robinson (11:44):

In the last, what would it be, six or seven years now?

Gaye Francis (11:46):

Six or seven years. Yeah.

Richard Robinson (11:48):

Although there were other problems.

Gaye Francis (11:50):

Yes, there was some hardening of network. And that comes back to that. What do you want your network to be? And it hasn't ever been designed to do those things. So you almost got to put a line in the sand: What do we want it to achieve? What will our current network get us to? And then what do we have to do to achieve the rest?

(12:10):

So that sort of brings us to the end of a very diverse discussion around the electricity industry, not a one size fits all solution for any of this, I don't think. But if you take the philosophy that Richard and I have always had that it's safety in design and designing for optimum outcomes. What do you want to achieve first? What are your options on the table and in the circumstances, which are the best?

Richard Robinson (12:40):

And the political fights we're having aren't helping.

Gaye Francis (12:43):

No.

Richard Robinson (12:44):

They would be on optimum that would work for Australia. And for some reason we seem to be politically unable to actually think it through.

Gaye Francis (12:50):

I think it has to be divided into two things though. It's what's the best technical solution for Australia. And then how do you get it through the politics of it? I mean, we've said this many times as a young engineer, you to always told me, it doesn't matter how technically right you are, you have to be on the political ball as well.

Richard Robinson (13:07):

Yep.

Gaye Francis (13:08):

So thank you for joining us and we hope you'll listen next time. Have a great day.

Richard Robinson (13:13):

Thank you.

Obligations for Engineers under WHS/OHS legislation

Risk! Engineers Talk Governance
Season 4, Episode 7

In this episode, Richard Robinson and Gaye Francis discuss the obligations for engineers under the WHS legislation (OHS Act in Victoria) and understanding the importance of their role if things go wrong.

They discuss the fact that Work Health and Safety (WHS) legislation is the overarching legislation in Australia that must guide engineering design and decision-making, and their surprise at this lack of awareness and how many still (wrongly) use Standards as a design basis.

They emphasise that engineers are central to upholding WHS requirements, as they are the designers responsible when things go wrong and that the engineering design process needs to be a top-down, holistic approach that considers all relevant stakeholders and objectives, not a bottom-up siloed approach. 

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the obligations for engineers under the WHS legislation, which is the OHS Act in Victoria, and understanding the importance of their role.

(00:21):

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

Gaye Francis (00:40):

Good morning, Richard, and welcome to another podcast session.

Richard Robinson (00:43):

Good morning, Gaye.

Gaye Francis (00:44):

We just had a discussion about what we're actually going to talk about today and we thought we've done some interesting courses and you've been involved in some discussion groups the last couple of weeks and there's been some really interesting topics and I guess themes and observations that we've made during these. So what we thought we'd talk today about is just some of those things and how they're all sort of being integrated together, or not integrated together as the case may be.

(01:11):

So the first one was we gave a chartered assessors course last week for Engineering Education Australia. So these are the people that go around and assess members to become chartered status. And there's obviously a requirement in that that they need to know about risk. We were very kindly given the praise that they were just given a master class in risk management and in risk over a three hour period. So that was rather nice. And then Richard, you gave a discussion? Were you involved in a discussion group or a round table?

Richard Robinson (01:43):

Well, no, there was this fellow doing a PhD and he was trying to work out what the integration and what the practical integration between security and fire was. I mean, the classic case is the fire doors in a nightclub being locked to keep people out, but when the fire occurs, people can't get out, and that sort of thing. And it was an interesting discussion because the fellow doing PhD was Richard Kathagh and he had me as a fire engineer, long-term member of Society of Fire Protection Engineers, and a fellow called Damien Rogers who was a security guy, ex-military fellow. So from (R2A's) point of view, very much like Bob Browning. And one of the sort of diagrams he came up with that he had, he said, because we sort of observed that both the security and the fire protection was sort of increasingly going into silos, which is something that we thought has always been an error and which we never did and have always said they were an integrated thing.

(02:33):

And one of the little diagrams that Richard was testing on us was three circles. One was sort of security, one was fire and then one was design. And both Damien and I both instantly felt, because at the end we were sort of having a discussion, we, Damien and I were looking saying, well, we pretty seriously agree about all this, don't we? And then what were basically saying, well, what you need to do was push security and the fire and the design circles together and where they overlapped, you had to write in WHS. And so far as I could tell, the fact that we were quite so vehement about it, I mean I think the matter had been raised previously because Richard had been talking to other people trying to work out what was going on. But the fact that Damian and I said the overarching legislation is WHS. And if you're on the fire business, you need to know about WHS. And if you're on the security business, you need to know about WHS. And we both agreed that if things had gone into silos and people weren't coming top down, they were coming bottom up within their silo. Now if you want to have confusion in the design process, come bottom up within your silos and you will achieve a magnificent confusion.

Gaye Francis (03:33):

That sort of position was almost supported in the chartered assessors course that we did last week when they sort of said, there's actually not many candidates that understand that the WHS legislation is the overarching legislation for engineers.

Richard Robinson (03:47):

Well, yes, because it hammers design. It's got all these duties and designers have their own little category, their own level of responsibility. Now they've got a design so it's fit for purpose and without risk and you've got to test it to confirm that it's good and you've got to provide the right information to the user. And that is just focused exclusively at designers. And what do engineers do? They design!

Gaye Francis (04:09):

They do, and we have covered this in a number of our other podcasts, so we won't go on too much about it today, but I thought that was really interesting that they didn't think that they had this responsibility even if you didn't have the title of a designer, engineering design...

Richard Robinson (04:23):

Correct.

Gaye Francis (04:24):

You still had the obligations under the WHS legislation and that was the overarching legislation that should be pushing everything. And the feedback from the assessors was there was a lack of understanding amongst engineers and young engineers going for chartered status, that that was the case.

Richard Robinson (04:41):

But it also flowed on too, because we were just talking about it before the session. I mean we keep doing this expert witness things and what we observe is the only expert witness there are engineers. I have not seen, it's very rare. Sometimes you've got a town planner, but even then when it comes to technical stuff, it's the engineers doing it.

Gaye Francis (04:57):

I was going to say, town planners typically don't give technical advice.

Richard Robinson (05:03):

Advice.

Gaye Francis (05:05):

That's correct. They're mainly giving planning legislation or a planning guideline advice. And it's all about a compliance audit rather than dealing with the laws of nature.

Richard Robinson (05:16):

Correct.

Gaye Francis (05:17):

And so the engineers have to understand that they're central and important to this. And I dunno that we've been making ourselves that important.

Richard Robinson (05:24):

Well, it's like that, I mean, well before your time, but Ralph Nader's little thing unsafe at any speed with the Ford Pinter, remember when people crashed in to the back of that, the petrol tank blew up and burnt the occupants of the car. And Ford had made the decision based on a cost benefit analysis that it wasn't worth doing anything about because there were so few accidents and killing these people in these fireballs was not seen to be particularly relevant. Well, the courts pretty quickly, the American courts pretty quickly disabuse them of that theory! And if you just think for a moment about the Chris Maxwell QCs review of the 2004 OHS Act in Victoria, which kinda kicked all this WHS legislation off in Australia, he had two things. He said, to the extent you have control, you have the duty and the engineers during design sure have the control. And the other thing was everybody's entitled to an equal level of protection. You can't go around saying and say, just because it's cost effective, we've going to leave these people at risk. You just can't do it. And Nader went on to say, he said, it's all very fine to sort of blame the engineers for letting this happen. But he said, you can't get rid of the engineers. They are central to this process. They're unavoidable. The engineers have to be there.

Gaye Francis (06:25):

They have to be involved in the fix. So yes, they've been part of the problem to start with, but they're there as part of the fix as well.

Richard Robinson (06:31):

Well, except they probably listened to the finance people rather than actually sticking to their guns. And as we've commented before, the only way out of that hole for the engineers is to get the lawyers involved.

Gaye Francis (06:41):

And put that up. So I think there's been a couple of observations there. There's been the siloing of things that you sort of experienced in the security and fire.

Richard Robinson (06:52):

It's a bit more than that though. I remember Frank Stocks, our New Zealand associate, has just been calling up talking about the expert witness he's doing with regards to somebody who got killed on the foreshore in Auckland Harbor. Now for years he's been giving advice to the council. Councils want to have an open foreshore, so you get the view and you don't have barriers that are unattractive. On the other hand, having an open foreshore means that people can fall over the edge. Now there's a balance here and Frank's observation, which is what came out of that discussion with the balance between the two for that PhD candidate, the only way to solve it so far as he could tell was if you want to make a place safe, but you also want to keep all the amenity, you can't just do it in isolation. You've got to get the parties in the room who actually talk through the issues. Because it's not that you're going to do necessarily one or the other, it's that it's on the balance you've got to get it right. And the only way to do it with all the domain experts working together.

Gaye Francis (07:46):

But that means you're looking at a solution that looks at all of those issues together.

Richard Robinson (07:51):

In a holistic top down way.

Gaye Francis (07:53):

Correct. So you're saying based on the balance of significance of the risk versus the effort required to reduce it, can we achieve safe outcomes? Can we achieve city amenity? Can we achieve safety?

Richard Robinson (08:05):

Well, you might recall this is the advice we're just giving to the Hobart. Well, for Tasport at the Hobart City Council, gave the same reason.

Gaye Francis (08:11):

Yes. They have an open foreshore as well. And so they have to get together with the council and all of the stakeholders involved in that and have a look at what you can do when there's a working port in the center of a town basically.

Richard Robinson (08:24):

And they want to keep it an open point because otherwise the Sydney to Hobart (Yacht Race) is not quite as exciting as everybody can have when you all just cluster around the docks.

Gaye Francis (08:33):

That's true. They do put additional measures in place when they've got those sort of things there.

Richard Robinson (08:37):

Yeah, I know. But that's the point. It's appropriate to the circumstances.

Gaye Francis (08:43):

So I guess what we're saying is the engineering design process has almost gone to a bottom up process.

Richard Robinson (08:50):

Correct.

Gaye Francis (08:51):

Instead of a top down process. And we've always said, you've got to get those high level objectives in mind first, what you can do and then come top down.

Richard Robinson (09:01):

It's a design options analysis. What are we trying to achieve? And in the circumstance, what are the options that are available to us and in the circumstances, which is the best and most appropriate, the diligent decision-making process. I don't fully understand why that's been missed, particularly when you talk about chartered engineer status because the whole point of chartered engineer status, I mean they sort of supplanted the old corporate membership, but the idea was you demonstrated capability and you were just formally advising somebody that you'd got there.

Gaye Francis (09:31):

You almost got the skillset available.

Richard Robinson (09:34):

Yeah, that's correct.

Gaye Francis (09:36):

I think when I was coming through the ranks and you're going for chartered status, they were sort of saying 10 years plus experience. And I think now they're sort of aiming at that three to eight years experience. So there's a lot of experience that can be gained in that time. And I guess it depends on what sort of jobs you do and all of that sort of thing. But I don't think the value of engineers is being recognised.

Richard Robinson (10:05):

Well, I think in many ways, I mean, we look at some of the post-grad courses that we've been delivering, and you're sort of look at some of the candidates you've got. I mean, the ones that are brilliant are absolutely brilliant, and they can do the job as well as we can. But then we've observed this, and I sort of did my back in last week and I was talking to the physio and he was talking about the students that he has to deal with. He said, look, the brilliant ones are still brilliant. That hasn't changed. So I said, one of the problems we've got now though is with the system, and that's the way we've set it up, is that when a candidate's not so good, the difficulty you have in failing them, the amount of paperwork required to fail somebody now is so much more than the paperwork of saying somebody is brilliant. It's easy to let them through. And well, as we do as part-time lecturers, you don't want to fail anybody.

Gaye Francis (10:49):

No. So you give 'em as much help as you can, but some of them just don't get over the line. And then it's sort of like, oh, they've sort of achieved what we need to. We'll give them a bare pass.

Richard Robinson (10:59):

Correct. Because it's easier to do that and you rely on the system to fix it up a bit later. Now, whether that's actually achieved or not, we're not in a position to comment, but unless somebody just fails to submit or something like that, the capacity to fail people has become very difficult.

Gaye Francis (11:14):

Well, that's with everything isn't now. I've got two young kids and telling them that they're not good at something is not the right thing to do anymore. <laughs> And there's some things that they're not so good at.

(11:27):

How do we wrap this up from there? I guess it was just an interesting conversation. I think there was some common themes throughout those two things that we did last week that things are being done in silos. The importance of the WHS legislation and how it hangs everything together, combines everything together, I don't think was well understood.

Richard Robinson (11:51):

It's not understood. Actually, there's not even an awareness that it could be so.

Gaye Francis (11:57):

That's true, probably, that there's not even an awareness around it. So I don't know how you elevate it. I mean, this is what we do for a living.

Richard Robinson (12:05):

It's like I gave the paper to that fire engineer conference back in middle of the last decade, the Society of Fire Protection when it was in Sydney. I explained the fire engineering design brief and if the fire engineers in Australia was inconsistent with the WHS legislation. I think only two or three people got it. So as far as I know, the old process is still going and that has all sorts of consequences for designers.

Gaye Francis (12:26):

I think one of the interesting comments, and this a little bit on the side, there was an ex regulator at one of the courses last week.

Richard Robinson (12:33):

There was a lawyer there too. Keep going.

Gaye Francis (12:35):

He didn't put his hand up until the end. But the regulator was saying that it does call up standards and things like that sometimes.

Richard Robinson (12:43):

You mean the WHS regulator?

Gaye Francis (12:44):

Yes. But there's a requirement under the WHS legislation that is not well understood, but people are still complying with Standards and things like that to get their license to trade.

Richard Robinson (12:57):

Correct.

Gaye Francis (12:57):

So there's almost two processes that are competing.

Richard Robinson (13:01):

Well, people are still using Standards as a design basis. Which for an engineer absolutely makes no sense. I mean, I was obviously making past remarks how Engineers Australia is encouraging engineers to give their IP free to Standards Australia, which makes no sense whatsoever. None of the American societies do it - if you want some advice, you're going to buy it.

Gaye Francis (13:27):

So I guess engineers have to understand their obligations under the WHS legislation and it's essential to all the work that engineers do.

Richard Robinson (13:36):

Correct.

Gaye Francis (13:37):

It has to be done top down.

Richard Robinson (13:38):

Correct.

Gaye Francis (13:39):

And we have to not do it in silos. It has to be an integrated process and approach to it that considers all of the things that need to be considered.

Richard Robinson (13:48):

The engineers are absolutely essential to this. They cannot abdicate, they can't walk away. They are the designers when it all goes wrong. And they will be the ones in court.

Gaye Francis (13:58):

I guess engineers understanding how important they are is the first thing. And then yeah, and understanding the requirements on WHS legislation. So thanks for joining us today, and we hope to see you next time.

Richard Robinson (14:11):

Thanks.

Due Diligence in Marine Pilotage

Risk! Engineers Talk Governance
Season 4, Episode 6

In this episode, Richard Robinson and Gaye Francis discuss the application of due diligence in the Marine Pilotage industry. 

They discuss various consulting work they’ve done with Marine Pilots across Australia and New Zealand ports, and summarise the key take-away that the process is no different for pilotage due diligence reviews than any other (industry’s) due diligence review. 

That is, 

• There needs to be an argument as to why all the credible critical issues have been identified. 

• In a port, they typically look at all the user groups and what activities they're doing. 

• Look at all the controls that can be put in place, which are reasonable in the circumstances. 

• Always needs to be a quality assurance system to make sure that what is being put in place are sustained and managed accordingly. 

But, noting, there will be site specific or port specific issues so the controls put in place may be different.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the application of due diligence within the marine pilotage industry.

(00:16):

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

Gaye Francis (00:34):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Good morning, Gaye.

Gaye Francis (00:39):

We thought we'd focus on marine pilotage today because during this season, we were going to cover some of the industries that we do some work in. So you're actually giving a presentation next week (October 2024) in New Zealand in Christchurch to the New Zealand Marine Pilots' Association.

Richard Robinson (00:55):

Indeed.

Gaye Francis (00:55):

And we've done this on a number of occasions and for a number of courses both in Australia and New Zealand. So I guess, do you want to sort of have a quick run through your presentation... What you're going to cover in your presentation.

Richard Robinson (01:11):

Well, it hasn't been totally confirmed yet, but I'm following Antonio De Lito, who's an Australian Italian, and I suspect he's going to be talking about the incident of the Joly Nero that took out the control tower in Genoa and certain people got killed. Now that was about six/seven years ago now, I think it is. And as a consequence of all these deaths, and it was a litany of disasters and confusion and things that went wrong between the marine pilot and the ship's engineers and the captain, in part because certain bits of equipment weren't working, i.e. the engine rev counter wasn't working, so the pilot didn't realise quickly enough, they were relying on voice messages between the engine room and the captain as to where the actual state of the engines were. But anyway, the control tower got took out. And strangely enough, the Italian courts adopted this notion of due diligence, which I didn't think was a civil lawy, European-type Roman law, not polyonic law concept, which I thought was a peculiarly common law, English speaking world idea. But they applied it and as a consequence they put the captain away, the chief engineer away, they tried to put the marine pilot away, but he got off on appeal and now they're having a crack at the engineer who put the control tower on the point such that if a ship...

Gaye Francis (02:32):

Did fail in any way...

Richard Robinson (02:34):

It could be taken out. And I don't actually know where that's gone. I'm sure Antonio will give us an update, but I was going to explain the due diligence aspects of that. Now, we've been through this before and for numerous things, and we've explained it with regards to the Lake Illawara and the incident at taking out the Hobart Bridge. And you might recall the Cosco Busan, which hit the Golden Gate Bridge. See, marine pilots have a lot of protections under civil law, but when something bad happens, there's an increasing tendency, we sort of talked about blame culture, which has popped up this decade in particular, when something goes wrong...

Gaye Francis (03:07):

Whose fault was it?

Richard Robinson (03:09):

Yeah, whose fault was it? Well, in that particular instance, despite all the sort of legal protections that the marine pilot in San Francisco had, they put him away under environmental legislation for coating birds with oil. So there's always something can come out and get you, if they want to get you, they'll come and get you these days.

Gaye Francis (03:32):

There's a whole lot of different legislations that apply.

Richard Robinson (03:35):

And it'll be interesting to see. You remember the Boston Bridge got taken out by a ship that went blacked out, and the question was why didn't it have a tug? Because that's the whole point of having tugs. If you know there's something you could take out, you have a tug tied fast the stern so that you can be steered out of the way with the momentum of the ship. So just because when it blacked out, there's nothing that can do. The ship's going to go wherever the ship's pointed or whatever the circumstance, the current and the wind and everything else just pushes you to, that's where you're going to go until you just stall or you drop your anchor and it's going to come to a grinding halt or whatever you've done, but you don't have any choice. And so all this sort of stuff is basically reappearing. And the job is to make sure that for all the credible critical scenarios, you've got measures in place so that really bad things don't happen, such as hitting the Golden Gate Bridge or taking out the bridge in Boston or taking out the control tower in Genoa.

Gaye Francis (04:23):

And I think that's some of the feedback from the marine pilots when we've done jobs for them, is by using the due diligence approach, it actually allows them to get additional resources and the things that they need in place to make the passage safe. Because the things that they are dealing with are high consequence, very, very low likelihood events. And when they were used to do it on a risk basis, it never got over the line.

Richard Robinson (04:44):

Because you discount the high consequence things by the unlikeliness of the event. Well, you might recall when we had those discussion with the world's largest port of Port Hedland.

Gaye Francis (04:52):

Yes.

Richard Robinson (04:52):

And they did the N -1. We're just borrowing an idea that from the electrical industry. The electrical industry basically says that for any network, should a major conductor fail, the system should ignore it - it should just be able to keep going. But we've noticed because of commercial pressures, the headroom is getting tighter and tighter. And I don't think a lot of networks do have N -1 anymore. But when we're talking about that with regards to ships, because we listened to them for about a morning I think, it was marine pilots talking about it, and we just sort of said, hang on a minute, you need an N minus one argument so that if the engine of the ship fails or one of your tote fails, you've still got a way to bring whatever the situation is home safely. And once they did that, they instantly got another tug applied that obviously bolted off to the, well, I suspect the boards of the large mining companies that use that port. And the idea that you could block a channel with a ship which is now Australia's, well, it's the world's largest by tonnage I believe, port.

Gaye Francis (05:46):

Okay.

Richard Robinson (05:48):

What would happen to Australia if you blocked that port, you had to cut the ship up for six months. It just doesn't bear thinking about it.

Gaye Francis (05:54):

And I think that's what it is, it's that the high consequence, as you said, it's the recovery time as well. And being able to block a channel in a port so it can't be used for a long period of time was unacceptable.

Richard Robinson (06:08):

Well you might remember when the Iron Baron hit the Hebe Reef in Bass Strait, the harbor master wouldn't let it be dragged into Devonport just in case it got suck in the channel and just blocked up the ferry service from between Tasmania and Australia. Because if we do that, it becomes impossible for I think one third of all of New Zealand's exports and imports go through by the ferry, by Davenport.

Gaye Francis (06:33):

So again, criticality argument, and that's how it's been applied to marine pilotage. And I think one of the interesting things, and it's being extended to the port scenario now, so pilotage is one aspect of port operations and an important aspect. And so we've done a number of pilotage reviews for a number of ports around Australia.

Richard Robinson (06:54):

You've got to go to think about a marine pilot. The whole point about having marine pilots is for the critical, don't collide or ground a ship. Okay. It's always critical. That's the only reason why the marine pilot's there.

Gaye Francis (07:06):

Well, it's sort of interesting. They're almost the control in a way, aren't they.

Richard Robinson (07:09):

They are.

Gaye Francis (07:10):

So they've got to have the tools available to them to make sure that they're an effective control.

Richard Robinson (07:14):

Correct.

Gaye Francis (07:15):

So some of the controls that we do put in place to make sure that they've got the right information and additional tug services or assistance and that sort of stuff is all the things that they need to do their job effectively.

Richard Robinson (07:28):

Correct.

Gaye Francis (07:29):

What I was going to say though is that sort of idea is now being expanded out into the whole of port scenario. So it's not just being considered for ships being brought in and out, it's actually for the port operations as a whole.

Richard Robinson (07:45):

Are you trying to describe the recent job we did for Tasports, are you?

Gaye Francis (07:49):

Yes. Well we have done it there, but we've done it at other ports as well. But I think one of those integrated approach, and we sort of touched on it in one of our other, previous podcasts is that integrated approach and not looking at some of the activities in silos will give you a different set of precautions than you would if you just did it in silos.

Richard Robinson (08:08):

Well, that was what we did - one of the Tasport's port. They had a whole lot of industry around, and when you looked at the emergency services that those industry had available, and they were more than willing to help and share and provide their emergency services to the port as a whole, then not just for their own purposes. And as long as you had a sort of mutual aid process. But the advantage was that particular port therefore had more resources than most other ports already available to it.

Gaye Francis (08:34):

So by looking at what you could bring in and the controls that you could put in place to address the issues, all of a sudden you've got to a step level improvement in safety that you might not necessarily have got.

Richard Robinson (08:46):

Well, remember there were two Australian subs that turned up in port, Dechaineux and Rankin turned up, and you don't normally see two Australian subs in one place.

Gaye Francis (08:54):

It was pretty exciting, wasn't it?

Richard Robinson (08:55):

We've only got a few of them and only some of them six and only four probably operational at any given time. The rest have always been worked up and fitted out, refitted and things like that. To see two of them in one place at once. It's quite remarkable.

Gaye Francis (09:07):

I'm not sure how to look at the safety due diligence of the port, but considering all the activities that have to be considered.

Richard Robinson (09:16):

That's correct. And remember there was an ill sailor, they had to get off. And the port actually used the collective resources to actually make it a success.

Gaye Francis (09:26):

Okay, you've got to put that bit in, and I had forgotten that little bit. <laughs>

(09:34):

So our process is no different for pilotage due diligence reviews than any other due diligence review that we do. So we need to have an argument as to why all the credible critical issues have been identified. And in a port, we typically look at all the user groups who they're using there and what activities they're doing. So there's an activities table that you do.

Richard Robinson (09:59):

Yeah, it's like the Twilight Regattas in Hobart. There's all these kids and dinghies running around, you better make sure the big ship in an emergency doesn't run over some <people>.

Gaye Francis (10:09):

Yeah. You then got to look at all the controls that you can put in place, which are reasonable in the circumstances. And then, as I said, you're always a quality assurance system to make sure that the things that you are going to put in place are sustained and managed accordingly. But there will be site specific or port specific issues. Like Richard said, the regattas in Hobart were a particular issue. There's more industry in Bell Bay and in Port Headland for example, there's different weather conditions depending on whether you're on the east coast or the west coast of Australia. So there there's different issues and slight variations in each of the ports and the controls that you'll put in place may be different.

Richard Robinson (10:52):

Indeed. Well, you do the best with what you have available to you. And obviously if you can't get there, then you're going to have to do some extra things. But an awful lot of time, and that's certainly, we've talked about tower partners, other things like that. Competent people do competent things. And so if you've got competent people around, they'll be providing services even if you are not aware that that's available to you. Well, in fact, in all the ports we did, we got all the users together. Remember that was the whole point of the exercise. It's hard to do this stuff in isolation and just have a single expert come in and get it right when you've got multiple potential users and multiple potential resources.

Gaye Francis (11:27):

And I think that was the key thing that came out of it, wasn't it? That there were more resources available than was known by any one party.

Richard Robinson (11:35):

Correct.

Gaye Francis (11:36):

That all of a sudden, if you adopted it collectively for the port use overall, then you got that improvement.

(11:46):

I guess that's a summary of what we're going to talk about at the conference next week (October 2024). So good luck with your presentation, Richard, and thank you for joining us.

Richard Robinson (11:58):

Thank you.

Due Diligence Essentials for Engineers - R2A's New Booklet

Risk! Engineers Talk Governance
Season 4, Episode 5

In this episode, Richard Robinson and Gaye Francis discuss their new booklet titled Due Diligence Essentials for Engineers. 

They talk about the need for the booklet being that Engineers are becoming more involved in the governance process in providing information to boards, directors and senior people. Engineers are ones aware of the critical things that can go wrong and what boards need to know about for their due diligence obligations under the WHS/OHS legislation.

Other areas of discussion include:

• Whilst most engineers aren't directors and, therefore, don't have the due diligence obligations as spelt out by the WHS legislation, the legislation is specific about duties of designers.

• Engineers can not rely on Standards or Codes of Practice to absolve themselves of liability.

• When should engineers elevate issues to higher levels of decision-makers, and the importance of transparency in their decision-making process.

• Engineers can't be right all the time, but can be diligent. And with Registration of Engineers, due diligence provides a tool to be able to say they’ve done everything that is reasonable in the circumstances to make whatever they’re working on safe.

Purchase the book via our online store.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss their new booklet Due Diligence Essentials for Engineers.

(00:15):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you'd like to be notified when the booklet is launched, please subscribe to the R2A newsletter. The details can be found in this episode's description or head to www.r2a.com.au.

Gaye Francis (00:38):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:40):

Hi Gaye. Good to be here again.

Gaye Francis (00:43):

Today we're going to talk about our new booklet that we're currently working on "Due Diligence Essentials for Engineers". I guess in the past we've always focused at that director level where the WHS/OHS legislations, in particular, are aimed.

Richard Robinson (00:59):

Yeah, that's right. And that was partly because, in a sense, we were aimed at directors and in fact, the reason why we wrote the little book "Criminal Manslaughter - How Not To Do It" was because getting directors to read a large book (text: Engineering Due Diligence) was an unlikely process.

Gaye Francis (01:11):

That's very true. But I guess in the last little bit we've seen that engineers are becoming more involved in that governance process and providing the information to the directors and the senior people to be able to make those decisions.

Richard Robinson (01:26):

Well, that's simply because the engineers are the ones aware of the critical things can go wrong and just how bad it could be. And they're the ones that they boards need to know about from their due diligence obligations on the WHS/OHS legislation. But as we pointed out, and this is partly what we've been doing it for Engineers Australia because they asked us to sort of follow through on a couple of things, is that whilst most engineers aren't actually directors, so they don't have the due diligence obligations as spelt out by the WHS legislation, the legislation is quite specific about duties of designers. And I'm not entirely sure what engineers do a lot of the time, but much of the time or perhaps most of the time they ought to be designing.

(02:02):

In that regard. I just got a couple of quotes. I've just got the one, I just pulled it out of one of their presentations. It's the duty holder stamp from the Queensland version. Although so far as I know the words are virtually identical everywhere. It's not that I've gone around and compared them all and it is consistent with the Victorian OHS Act, which came in 2004, even though most of the other acts sort of commenced from the Model Act of 2011/12.

(02:25):

But I'll just spell it out: That the duty holder, designers of plant structures or substances, Section 22. A PCBU, that's the person conducting the business, undertaking the legal entity, who is a designer for a plant structural substance that is to be used or could reasonably expect it to be used at a workplace must ensure that all workplace activity relating to the plant structure or substance, including its handling construction, storage, dismantling and disposal, is designed to be without risks to health and safety.

(02:53):

And then the designer has got a duty to test with all those things without risks to health and safety. And then the designer also has a duty to provide the information to the users of whatever they've designed, again to ensure that it is safe to use without risks to health and safety.

(03:10):

So this is a pretty onerous duty and it presumably just applies to the engineers in particular, even though I don't actually see the engineers talking that much about it. Although you and I know that we've actually hammered engineers. You might recall the first time the WHS Act came in in Queensland, it came in the 1st of January, 2012, and we were reviewing doing a SIL study on a ventilation system for a tunnel. And we sort of told the engineers on, I think in November/December, you could do it the old way using target levels of risk and safety before the Act commenced. But if you hadn't decided by the 1st of January and signed off on it, the lawyers would have us all back here in the new year doing it all again. And the engineer said, that can't be right.

Gaye Francis (03:51):

I think we were back in the middle of February, weren't we? <laughs>

Richard Robinson (03:55):

It was quite peculiar because the lawyers said so and it was the duty of designers.

(04:01):

The other points which we need to make, which we actually make in all our presentations, and we're actually doing Expert Witness matter in Queensland, which we better not say too much about because of the confidentiality agreements and so forth. But one of the real problems is that the people against the complaints being made, the engineers, have been using Standards as a design tool and WHS legislation is pretty clear about this. But rather than me sort of saying, and I'll just quote some lawyers in this regard.

(04:34):

Now, the first one is from a fellow called Paul Wentworth, a partner at Minter Ellison, he's commenting on AS7000, which is the high voltage distribution network standard for conductors and so forth. And he's commenting on this just after the Model Act comes in and he says (this is 2011).

(04:52):

"Engineers should remember that in the eyes of the court, in the absence of any legislative or contractual requirement, an Australian Standard amounts only to an expert opinion about usual or recommended practice. In the performance of any design reliance on an Australian standard does not relieve an engineer from a duty to exercise his or her skill and expertise. If you can do better than the Standard and it's reasonable to do so. The legislation mandates that you must."

Gaye Francis (05:18):

And I think we've covered that in a number of podcasts, that Standards are lagging indicators, not lead indicators.

Richard Robinson (05:25):

Well the next one is from Baker & McKenzie from 2009. So this is when it's all being put together. And this is the world's largest law firm at the time - I don't know if they still are - from the Melbourne office. "Engineers cannot avoid liability in negligence or for trade practices at contravention by simply relying on a current or published Standard or Code" That was published in the Engineers Australia magazine.

(05:47):

Now this is kind of odd because we just keep coming across Engineers saying: We've done it to the Standard, it's fine. No it's not. I mean I keep giving that example, the bane of electrical regulators - the home handyman getting the roof space filling with wires and doing themselves in. Well the technology's been moving along, fabulously. Power over ethernet LEDs can run a 25 watt lumineer these days. They're building them into industry. I dunno if you've been in some of these fancy hotels now you push the button, there's a click inside the box and it's actually switching it remotely. That'll be an LED being powered over ethernet meaning it's 48 volts or less extra low voltage wiring. It's very hard to electrocute yourself on 48 volts. I mean, it's possible if you sort of do some weird things, but just touching it wouldn't never do it to you. That's the same voltage that Telstra used to provide to ring phones around the place. So there's 48 volts everywhere with the Telstra network.

(06:47):

Now the problem they've got is AS7000 came out, it's been updated, it doesn't talk about any of this sort of thing that you could put extra low voltage wiring in the roof space and make it completely safe and put all the 240 volts in the wall. And the problem with that is duty to design. If you haven't followed the criteria and a new house is built after all this technology is available and it's not an AS 3000 and you didn't consider the possibility and explain why it was or was not reasonable to put extra low voltage wiring in the roof space and somebody dies, the engineer will be out for a Criminal Manslaughter charge. That's what the legislation says.

Gaye Francis (07:20):

And I think that's one of the purposes of putting this "Due Diligence Essentials" booklet together for engineers. I think the engineers are finding themselves in the middle of the corporate soup. They're dealing with the senior decision makers and the directors. They're dealing with the people that are actually doing the jobs.

Richard Robinson (07:36):

Well the other matter we just did in Queensland, which we better not talk about either. Remember the underwriter and the committee and the lawyers are present and there's a problem with what's got to be done and the two sets of fire engineers can't sign off. And we just turned up with the provisions of the WHS legislation and used it to cut the gordian knot.

Gaye Francis (07:57):

And we've said this on a number of occasions as well. Engineers can't be right all the time, but you can be diligent. So it doesn't say that bad things aren't going to happen. But what we hope with this booklet is it gives the engineers the context in which they find themselves. And I think some of the liabilities that are starting to come to engineers, especially around registration of engineers, potentially, and the due diligence really gives them a tool to be able to say hand on heart stuff: I've done everything that I can that is reasonable in the circumstances to make whatever I'm working on safe.

Richard Robinson (08:32):

Correct.

Gaye Francis (08:33):

So in our booklet, we're sort of going through that combination of the legal context and the way where the engineers find themselves in the environment that they have to work in, but also the tools and techniques that they can use to apply to the different circumstances. And I think as part of this (podcast's) season, we're sort of going through some of the different applications. Due diligence can be applied to any industry, any problem.

Richard Robinson (09:00):

Well, correct, it's a design issue as we keep pointing out. Post event, it's a retrospective design review, it's not a retrospective risk assessment.

Gaye Francis (09:06):

So it doesn't matter whether it's industry based, doesn't matter whether it's a safety and integrity level or a project issue or a safety issue. Due diligence can be applied to all of these things.

Richard Robinson (09:17):

Well, the other problem I've got too, and this is the case, the engineers have to know when to elevate the problem to the next level. If you don't have the resources, I mean sometimes the design engineers, it's within their apparent resources to make it happen. And the legislation's in two parts. First is you obviously can't be pinged if you don't have control. And then to the extent that you do have control, you've done everything you can. Now from the point of view of a design engineer, they might have the resources all have control of the funds to actually make whatever it is they think that needs to happen happen. But they need to elevate that in a way that the senior decision makers, the people who do have the duty to demonstrate due diligence and the criminal manslaughter aspects of that, get it right. And we tend to see a lot of engineers hanging on to the decision making in a way that is quite inappropriate.

Gaye Francis (10:02):

So it's all about that transparency of arguments, isn't it?

Richard Robinson (10:06):

Correct.

Gaye Francis (10:07):

So yeah, being able to elevate it to the right person. And it might even have to go outside the organisation. Like a lot of the government projects that we see in the infrastructure projects, there's so many stakeholders involved that often even the tenderer or the person building the infrastructure doesn't necessarily have the means to determine whether it's reasonably practicable or not.

Richard Robinson (10:29):

I don't want to drag you back into history, but you may recall we have in confidence work where we killed of a major infrastructure project in Victoria and we're still not allowed to speak about it until, what is it, 30 years is up, for the simple reason that if the prime tenderer's find out how much money they spent for something which wasn't possible, the government will not be forgiven.

Gaye Francis (10:49):

I don't know where to go after that comment, Richard!

(10:55):

The booklet that's coming out and we're hoping it'll come out in Spring this year, will be that in between book between our really detailed "Engineering Due Diligence" text and the "Criminal Manslaughter" booklet aimed the directors.

Richard Robinson (11:10):

And that's why it's "Due Diligence Essentials for Engineers" because it's not obviously aimed at the senior decision maker. It's aimed at the engineers who are doing the design process and have to provide the right information the way in which the senior decision maker can actually make a proper defensible decision.

Gaye Francis (11:25):

So it has to be in the context in which they find themselves. And I think sometimes engineers believe that stuff's not applicable to me or doesn't apply to me, and then they just go about doing their things.

Richard Robinson (11:37):

Well, as you said, we're just about to do that expert witness matter in Queensland. And I'm afraid we're probably going to give the engineers involved a particularly hard time because they simply designed to the standard and to the HIPAP guidelines, neither of which will survive the scrutiny under the WHS legislation since it's going to before a judge would probably be held up, we suspect.

Gaye Francis (12:01):

I think some of it, and we talked about this in other podcast sessions, is the confusion of where the WHS and OHS legislation actually sits in relation to other legislation. Like we're talking about planning legislation and other types of legislation. But I mean our experience has been the WHS legislation sits above all of those things and it's the leading legislation and if you take that sort of thinking of how they deal with it, then all the other legislation just sort of falls away.

Richard Robinson (12:33):

You might recall before we started the hazard risk analysis for the Western Sydney Airport for the EOS, we made very sure that the Australian government solicitor agreed with our understanding and that's written up on the first page of that report saying; when the airport, the accredited airport operator and an aircraft and everything else has to be done consistent with the WHS legislation. There's a whole lot other aviation safety legislation has to comply with too. But the overarching one is the WHS legislation. And we don't quite understand why this comprehension, because it's not as though we don't keep talking about it endlessly!

Gaye Francis (13:10):

(Why) it isn't widely known in industry?

Richard Robinson (13:13):

No. Well, we'll see how we go with the next expert witness job in Brisbane. That'll be really quite interesting.

Gaye Francis (13:21):

Alright, so I think we might leave it there today. So watch out for our new "Due Diligence Essentials for Engineers" booklet and we hope you can join us next time. Have a great day.

Richard Robinson (13:32):

Thanks Gaye.

Laws of Man vs Laws of Nature in the Due Diligence Context

Risk! Engineers Talk Governance
Season 4, Episode 4

In this episode, Richard Robinson and Gaye Francis discuss the differences between the "laws of man" and the "laws of nature" in the context of due diligence engineering. 

Drawing on their experiences as Expert Witnesses in the Australian and NZ judicial systems, the conversation covers the following key points:

• A brief history of Common Law.

• The adversarial system in common law, where lawyers argue different sides of a case before a judge or jury, differs from the inquisitorial system in civil law jurisdictions.

• The principle of "innocent until proven guilty" is a logical consequence of the adversarial system, rather than a fundamental legal principle.

• The Scottish legal system has a third verdict of "not proven" in addition to "guilty" and "not guilty", which the speakers suggest is a more pragmatic approach.

• Expert witnesses in court proceedings have a duty to the court rather than the party who hired them, which can lead to challenges when presenting evidence.

• Engineers need to manage the laws of nature first and then satisfy the laws of man in the courts.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the difference between the laws of man and the laws of nature.

(00:14):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you have any feedback or topic ideas, we'd love to hear from you. Email us admin@r2a.com.au.

Gaye Francis (00:33):

Good morning, Richard. Welcome back to another podcast session.

Richard Robinson (00:36):

Good to be here, Gaye.

Gaye Francis (00:38):

Today we're going to talk about the law and the differences in the laws of man, but we also have to relate it back to the laws of nature, which is really where the due diligence aspect comes from, especially for our type of work.

Richard Robinson (00:54):

That's right. In order to be safe or efficient or however you want to define it, due diligence means you've got to manage the laws of nature in a way that satisfies the laws of man. And the triggers, of course, the laws of man actually does vary a little bit from place to place, which can be quite confusing. Now, R2A does spend a fair bit of its time within the legal system. It's not something we actually choose to do so much as we get invited to do. So, for example, I spent some time at an expert witness case, the Supreme Court of Sydney with a fellow called John Agius Special Counsel. The judge hadn't read my expert opinion, so I had two hours just talking to him about various things, picking his brains as you do. And for example, that R2A sponsored the professor Law of Public Policy out from Cambridge in 2018. I think it was. Because he had a book out "Law As Engineering", and he was comparing what the lawyers do with what engineers do. And there are some significant parallels between the management of laws of nature and the way in which the laws of man goes about things and does things.

(01:52):

So what I thought might just be worth going through and making a few remarks about all this from the point of view of how engineers interpret what we've being told. Quite a lot of this is important in the sense that a lot of the principles the lawyers actually enunciate is a logical consequence of how things are done and how they've gone about it. For example, and I think we talked about this before, the way in which the adversarial system arose in the English common law system, it was King Henry II, they'd had a civil war. The king tried to extend the power of the king with these feudal lords who'd been on one side of the fight or the other before he became or ascended the throne.

(02:25):

And so he appointed his own Lord judges and those Lord judges took the book of common law and went through each of the fiefdoms acting as the judge instead of the previous Lord. And that means that English Law Lord had to have the same power and stature as the Duke or whoever was in charge of a particular fiefdom. And what they did was if they found the law that was common, nine out of 10 fiefdoms, then that was the common law which they applied in the 10th. Now, this has a number of direct consequences and you can pretty easily see that if you're a judge that just turned up from London on a circuit you'd never been to this place before, and some people having a dispute about something, how do you work it all out?

(03:02):

There's a couple of things you do. First of all, you are in charge of the law. Nobody else gets to decide the law. You might've noticed we were sitting in a VCAT tribunal just recently. The lawyers were having the discussion, we will decide the law, and our side was just a young couple and us. But when it came to laws of nature, that's when we came to the fore and how they were going to be managed. Now that's the first thing, the system, they hold onto that.

(03:27):

The next thing is that you do get this adversarial system because you turn up at a place you've ever been before. How does a judge come to a view about what ought to be done? And the answer is, well, the court has a court appointed representatives, barristers or lawyers, who put forward the case in a way in which the judge can understand and then they start to stash it out. And then legal arguments ensues. But it's meant to be reporting on what actually happened, the events in some constructive way. But that means those representatives have to become officers of the court. And when we're an expert witness, our first duty is to the court, not to the person who's paying us, which obviously breaks all the codes of ethics of consulting engineers. But that's the way it's done. I mean, I think it only eever happened to me once. The way it's supposed to happen is that when the other side discovers who the expert witnesses, they say, oh good, we won't have to hire ours. We'll rely on them. Doesn't happen very often, but it's very nice when it does.

Gaye Francis (04:27):

So you're working for the court and you're giving the information to the court to make an informed decision.

Richard Robinson (04:31):

That's correct. Now it's done on an adversarial basis. Now, this is where it sort of gets kind of curious because I don't know if you've ever watched Rumpole (tv show) and Leo McKern and all those sort of interesting cases, but he always had this thing about the golden threat: Innocent until proven guilty. Now innocent until proven guilty, it's not actually a principle in itself. It's just the logical consequence of having an adversarial system. Because when you go to court, the only way you can have a trial is if you plead not guilty or innocent, right? Because if you plead guilty, the trial's over apart from the penalty. So it has to be that way.

(05:08):

Now that compares itself to the Inquisitorial European, Napoleonic Roman law system where it's inquisitorial. Now if you apply that principle in an inquisitorial system, what are you going to do? Talk to the entire population to find out who's potentially guilty. The only way you could do it in Inquisitorial system is to assume that a certain pool of people are guilty and then keep asking questions until you've figured out which one probably did it.

Gaye Francis (05:32):

So you're proving that the others are innocent

Richard Robinson (05:34):

In effect, yes, but they're the consequences of the different process. It's not a special principle in itself.

(05:41):

If you choose to have an adversarial system, you must be innocent until proven guilty or you can't have the argument. Conversely, if you have an inquisitorial system, you must assume that which the guilty pool are and then prove each of them innocent.

(05:55):

Now that leads onto Scot's law, and I do admire the Scots in this one. I once did a course in Scotland. They were doing London leads in Glasgow a long time ago. And so I turned up in Scotland to give a course. And I didn't realise Scot's law was quite so different. You see in the adversarial system it's guilty or not guilty. The Scots aren't quite as trusting as that. They have a different opinion. They have three outcomes. You can be proven innocent, you can be proven guilty, or the charges can be not proven. Now, I think if you get taken to court and it can be shown beyond reasonable doubt it had nothing to do with you, that's an important finding. If the charge is not proving the Scots reserve the right to give it another bash at a later date if new evidence arises. It seems to me the Scots have a very pragmatic view of the law, which is superior to the English adversarial system. Guilty and not guilty that we...

Gaye Francis (06:53):

Have here in Australia as well.

Richard Robinson (06:54):

Yeah. Now, I'm all in favour of being given the benefit of the doubt and the idea that basically you've got to be proven guilty beyond reasonable doubt before you'd be put away for a long time and all those sorts of things. So you get the benefit of the doubt. But I think the Scots have got a much better understanding of what the possible outcomes actually are. And I would've thought if we were talking about law reform commissions in Australia, consideration to adopting the Scottish model would be something we should think about.

Gaye Francis (07:21):

Well, we've talked in a number of other podcasts as well and it's, it's not a justice system per se, it's a governance system that will go through the process. It'll be due process.

Richard Robinson (07:34):

Correct.

Gaye Francis (07:35):

And so that sort of feeds into that guilty not guilty...

Richard Robinson (07:38):

They do promise justice. They promise due process. Engineers' Australia's quote: What is a fact? Is it what actually happened between sensible and smart? Most emphatically? Not at best. It's only what the trial court, the trial judge or jury thinks happened. But the trial court, the judge or jury may be hopelessly incorrect, but that doesn't matter legally speaking. I used to think I was in contempt of court for that until I found that happy quote from Engineers' Australia. I assume they have good lawyers.

Gaye Francis (08:05):

So I think that's one of the interesting things, isn't it? You go on, and that would be our experience in some of the court cases that we've been involved in. You have very clever lawyers and some of the things that are presented are very focused in and targeted in a particular direction.

Richard Robinson (08:26):

Well, I better not talk about the case in particular, but I remember doing one in a county court, I think it was... There was a six person jury panel when I turned up to do my piece, which was a genuine surprise to me, and I couldn't figure out why until I sort of got in there in the afternoon. A different jurisdiction do things in different ways. In Victoria expert witnesses don't get invited till they're needed. Whereas when I was sitting around the Supreme Court in New South Wales, you get to listen to the whole proceedings, you know exactly what's going and just how rotten the other opposing barrister may or may not be. But in this instance here I was a bit nonplus because it wasn't a big matter and I was surprised to find a jury panel. Anyway, what I did was I pulled up my report to talk to it because in the past what I've discovered is your barrister and, quotation mark, sort of says, who are you and why might you be an expert? And all these different questions they ask you. And then they make you, what the expression is, read your report into evidence. And they'd take you through your report to make the key points and things like that. Now, I pulled my report out to get ready to talk to it in the witness box and the opposing barrister said: He's going to read from his report. I said, what?

(09:34):

And then I got kicked out, the jury got kicked out, and the two barristers were going hammer and tongs before the magistrate. A little while later we get called back in and I think I worked out what happened. You see in my report I had a series of photographs showing what had happened and I'd gone through the four tests of causation. And I said, based on this, my expectation, if this matter goes to court, then I would think that the plaintiff will win the case and the defendant will lose it.

Gaye Francis (09:59):

So you put a finding in there.

Richard Robinson (10:01):

I put a finding in there. Now as I sort of discovered there is a rule that an expert witness is not allowed to lead a jury to a conclusion. And that was a conclusion.

(10:14):

Now if it was just trial by a judge, which is what I was expecting. Whether or not I've drawn a conclusion or not, the judge gives no cognizance of that. They'll listen to my argument and think whether the argument's reasonable to circumstance and therefore the finding should go one way or the other. But when there's a jury involved, I'm not allowed to do that. So that meant the barrister on my side should have told me to take that out just in case trial by jury happened. But having left it in, if you did have trial by jury, that could not be led in evidence. So the reason why I came to that conclusion was because my photographs were allowed to be submitted to the jury when we all came back inside and the barrister asked me all the core questions that were in my report, but my report was never entered into evidence.

Gaye Francis (10:57):

But didn't ask you that final question. What are your thoughts on: What would happen if?

Richard Robinson (11:02):

Well, that's correct because that was not appropriate in front of a jury.

Gaye Francis (11:05):

Yep.

Richard Robinson (11:05):

But that means the entire legal system was set up and my report wasn't helpful to the defense, let's put it that way. So the opposing barrister thought they'd do something clever and panel the jury, get rid of my report, which didn't seem to work too well for them. But anyway, that cost an awful lot more money, consumed the time resource of a whole lot of our citizens. But that was the process.

Gaye Francis (11:25):

Yeah. So I guess just in wrapping up this podcast, there are different ways that the law can be interpreted and different ways.

Richard Robinson (11:37):

Jurisdictions.

Gaye Francis (11:40):

Thank you! So you just have to be mindful of that. But always in our work that we do, you're always managing the laws of nature first.

Richard Robinson (11:48):

Yep.

Gaye Francis (11:49):

Then in a way that satisfies the laws of man.

Richard Robinson (11:51):

Correct.

Gaye Francis (11:52):

So credible, critical issues, make sure all reasonable practical controls are in place.

Richard Robinson (11:58):

Indeed.

Gaye Francis (11:59):

Thanks for joining us again, Richard, and we'll see everyone next time.

Aviation Industry & the Application of the Due Diligence Process

Risk! Engineers Talk Governance Podcast
Season 4, Episode 3

In this episode, Richard Robinson and Gaye Francis discuss the application of the due diligence process to the aviation industry. 

Richard discusses his recent presentation to the Australian Aviation Wildlife Hazard Group where he used the expert witness view: What is it that could have been done and if it had been done, would it have stopped it going wrong? 

Key take-aways:

• Hazards and vulnerabilities in aviation, 

• Why R2A stays away from the term risk and adopts the military approach which is to say threat, 
  Preferred communication tools, and 

• The point of the due diligence process, which legislation requires, is demonstrating you were diligent and demonstrated you cared; that you did everything reasonably practicable you could in the circumstance.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the aviation industry and the application of the due diligence process.

(00:15):

We hope you enjoy the episode if you do we'd love a rating. Also, if you'd subscribe on your favourite podcast platform. If you have any feedback or topic ideas, please get in touch. Email admin@r2a.com.au.

Gaye Francis (00:34):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Morning Gaye. It's good to be back.

Gaye Francis (00:38):

It is good to be back. Today we're going to talk about one of our industry specific applications of our due diligence work that we do. And today we're going to talk about aviation and how it relates to the aviation industry. And it's really based on a presentation that you recently gave to the Australian Aviation Wildlife Hazard Group at Melbourne Zoo recently and how that went. So I'm guessing if you do an intro of what you did for that conference and then we can have a chat about some of the language that they use in the hazards that they experience.

Richard Robinson (01:17):

Just from those remarks you might gather from what Gaye just said, that we don't normally practice these (podcasts) in advance. But anyway. Basically I gave the standard expert witness view of how you go about managing these things and just explained that after it's all gone wrong and other people have died or serious injuries occurred, and you all wind up in court, the expert witnesses pop up and say: What is it that could have been done, if it had been done, would've stopped it going wrong. And obviously, after the event, when the fact is certain, that's not that hard a task, it's usually pretty obvious after the disaster, what could have been done if it had been done would've dealt with the matter. And this is just hammering the point that the court's testing as a retrospective design review, whether all reasonable controls are in place. It's not testing whether or not there was a standard or target level of risk achieved because after the event that has no meaning.

(02:08):

And I have to say the group, I think the group got that pretty fast. They understood that. And in fact because of who they are, they're talking about obviously aircraft damage and aircraft falling out of the sky. For example, somebody was going through all the stats about the number of bird strikes around the world and how much damage had been caused and how many people had died. And one of those Max 8 collisions of about 186 people died or something like that. One of the reasons why I thought it might've happened is that they thought the pitot tube, which tells the aircraft what speed it's doing had got damaged. And so it was giving the wrong information and the most likely reason for doing that was that it had been struck by something. Now they couldn't find that obviously in the crash site because that would've occurred before everything started going wrong. And if you obviously include that particular incident, that expands it further. There were a couple of other things which I hadn't realized, which obviously I thought about it briefly.

(03:00):

Australia, for example, has these wasps that like building mud homes in holes and one of the most likely places to build it is in the pitot tube. And so these airspeed indicators of aircraft can often be damaged just because the wasps are doing their thing. And it can happen quite fast. Wasps build these mud nests pretty damn fast. If the aircraft's sitting there for 24 hours, then you could have a mud nest then it quite easily. So there's a whole lot of things they have to check.

(03:26):

But the other thing which was interesting was that... you might've noticed they called the Australian Aviation Wildlife Hazard Group. It used to bird strike, but they said, well, and as you would've observed fairly unhappily,

Gaye Francis (03:38):

I will share that one of the handouts in the bag was different wildlife strikes around the world. For example, giraffes in Botswana, an alligator in the US. So a number of other animals were also experienced on the runway.

Richard Robinson (03:53):

Well, somebody had a problem, an overseas pilot had a problem in Australia with an emu and they referred to it as an Ostrich, which sort of slowed the Australians down just a bit. And the other problem they have too is a lot of time you can't actually identify the bird strike because there's not much left. I mean, one of the handouts they gave us was a sort of picture of a Boeing 747 with a bit of red on the front saying, what splat is that? Because it's important to know what kind of bird strike it is.

(04:22):

I mean you can recall we did that one at Brisbane airport I think it was. And the only reason why they knew they'd had a bird strike is because the runner on one of the jet engines had gone and they'd been badly damaged. And the reason why that was the case was because it was the ring off a homing pigeon, and that was a steel ring that had got caught in the runner. And they sort of said, what's a homing pigeon, a racing pigeon doing in our engine at Brisbane airport? And then they discovered that the local

Gaye Francis (04:50):

Pigeon club.

Richard Robinson (04:51):

Pigeon club ran racing pigeons and they used to let the pigeons off close to the airport and depending on what the weather was and what was going on, sometimes the pigeons as a flock went across the runway. Obviously the launch site was relocated for the pigeons once this became clear that that was the case, but that was only became the case because they discovered this pigeon ring that goes around the ankle. That was the only thing that was left.

Gaye Francis (05:15):

I think one of the other interesting things in your bag was this dangerous 10 species identification that was in there and sort of names 10 Australian bird species that represented in the ATSBATBS statistics. And I think it's really interesting groups. There seems to be two groups. There's sort of galahs and flying foxes and seagulls, but then there's also the white ibis and the buzzard and there seems to be two groups. There seems to be groups of birds that fly in big flocks. So the number of birds is one of the issues, but then they also put these additional birds in where the buzzards, the white ibis, because of their sheer size and the mass of them.

Richard Robinson (06:00):

They exceed what the engine can handle. I mean most people seem to know that now they fire chickens at test jet engines and all it does is provide more thrust to the engine most of the time. But birds, birds big enough. That's what actually happened in the US where they landed in the river, they flew into a flock of Canada geece and Canada geese are such a size that they will take out an engine and obviously if you have a flock, both engines can go down because one of your main precautions or controls is that each engine is capable of delivering all phases of flight. And as long as only one engine goes down, you're good. That's the second engine goes down, that gets problematic.

Gaye Francis (06:42):

Okay. So we spent a lot of time talking about the hazards or the vulnerabilities that they're exposed to.

Richard Robinson (06:48):

That was the other point. You see, they talked about this a fair bit, you might've noticed they said the Australian Aviation Wildlife Hazard. So they changed it from bird strike to wildlife because kangaroos have been struck and emus have been hit and things like that. So that was a fair thing. But they also changed the hazard and the way they were defining the terms, you see, one of the things they'd realized is that the term risk is so badly used and abused that nobody really knows what it means. And I just expanded on them because they'd understood this already, but I just expanded the presentation. I mean we've got five, but the three key ones are because we had an underwriter speak just before me who was explaining what whole losses and what had gone on in the world and what they underwrote. And the other thing was there were an awful lot of people from Southeast Asia there too. About 30% of the audience, about 140 people were from other countries. And they were particularly impressed with what the Australians were doing and how they're doing it, and particularly the ATSBs database and how they presented the information.

(07:47):

Anyway, this business of the risk, because I said look, the underwriter spoke about the risk as the thing in itself like the hull and the aviation and the aircraft is the risk. The technical people always talked about risk, likelihood and consequence, the simultaneous depreciation of both. But when you wound up in court when the fact is certain the likelihood side of the equation is now one, it's happened. And so the only risk you're talking about was the likelihood of that particular event occurring. And so the courts were just talking about likelihood. So unless you actually had this understanding

(08:17):

Now the way they were defining it, they were saying that the hazard was the problem of bird strike or animal interference at all. Then they had the threat, which was the creature being there at all. Then they called the risk, the conjunction of aircraft with whatever might be hit. And then they called the consequence, the outcome. Now we, as R2A, obviously stay away from the word risk altogether and just adopt the military intelligence approach, which is to say threat. We're happy with the hazard definition I think. But then you would have the threat, which is the potential bird strike or whatever animal strike. And then we would call that the vulnerability, that follows the military intelligence process.

Gaye Francis (08:56):

And that's the coincidence of the airplane being there at the same time as the wildlife.

Richard Robinson (09:00):

Correct.

Gaye Francis (09:01):

Yeah, that makes sense.

Richard Robinson (09:05):

How well that went down. I've yet to see.

Gaye Francis (09:08):

Have to see at the next presentation whether they've changed the name in their group or not. So they've identified the hazard. What are the controls that they can put in place?

Richard Robinson (09:20):

Well, we actually had done this at a previous presentation and I was basically explaining how we particularly prefer single line threat barrier diagrams because they're just the most communicative of a device. I mean, they were talking about bow ties, but you know how large complicated bow ties people get lost in the detail.

(09:38):

And the only technique that we've found that really works. Now I did explain it by sort of putting the James Reason swiss cheese model up because the aviation sector for reasons that are slightly obscure to me, really like that one and just sort of pointed out that it's a better alternative. And the main reason why is because when you wind up in court, I mean the legislation's clear and you remember we didn't start, for example, the hazard and risk analysis for the Western Sydney Airport until the Australian government's solicitor had actually signed off on that the way we wanted to do it, which was consistent with the provision of the WHS legislation was the right way to do it. Not using target levels of risk and safety such as New South Wales wanted to use.

(10:18):

Now the other way which I explained is that the quickest way to get to the question of what's reasonable in the circumstances was to put up a pros and cons table. And so I put that example up and the example I had on the threat barrier diagram I think was a bird scare, which means that you have basically a radar there, which is putting a laser on the birds or whatever creatures around. So if you show up and you're a kangaroo, suddenly get a green laser pointed at you or something, which sort of makes you, I dunno what this is, but this is not a good place to be.

Gaye Francis (10:49):

So you're removing the vulnerability.

Richard Robinson (10:51):

Correct.

Gaye Francis (10:52):

The intersection of the two.

Richard Robinson (10:53):

But obviously they have radar that can pick these things up. It's hard to pick up a single bird on a radar, although a flock apparently does show up.

Gaye Francis (11:00):

Right.

Richard Robinson (11:01):

And ordinarily you wouldn't expect a single bird to be able to take out a major commercial aircraft. At worst, they damage one engine. And as I pointed out earlier, we design aircraft so any single engine of a two engine aircraft can maintain all phases of flight. Even if you had to go round, it could be done.

Gaye Francis (11:20):

And I guess for this approach as well. So that was the application to wildlife and birds. But we've also used this approach in many other aerodrome or airspace, collision risk reviews that we've done.

Richard Robinson (11:32):

Well, that's basically what we did for Western Sydney Airport. It was basically a single line threat barrier diagram. It was interesting because I had a chat with the CASA (Civil Aviation Safety Authority) guy afterwards. Obviously DASA, that's the Defense Aviation Safety Authority, (and they) basically go about it the way we describe. But CASA, to some extent, has reverted to using target levels of risk and safety, which we have expressed to them several times in the past. And you will recall, we declined to keep doing work for them when they reverted back to that.

Gaye Francis (12:00):

So they're using the target level of risk and safety that something's acceptable or not. But I mean, we've done some recent jobs in the last couple of years in New Zealand, and we've definitely used the WHS approach.

Richard Robinson (12:12):

The WHSA in that jurisdiction, NZ.

Gaye Francis (12:16):

And that was the precautionary approach. And I think one of the interesting things when we were looking at the airspace one, and it was based on a model that we developed for Tapo many years ago, and it was really saying, well, there's only half a dozen or so controls that you can put in place to make airspace safe.

Richard Robinson (12:35):

Correct.

Gaye Francis (12:37):

And you're really saying what's reasonable in the circumstances? And when you break it down to that by flipping that question, the review process becomes so much more straightforward and less complex.

Richard Robinson (12:50):

Well, I think the other point was, which I don't think people quite understand. I mean, when something horrible happens, there's a tendency to say, well, whose fault was that? Right? I mean, that's been explained to us that the rules of the road for the shipping business is all about finding fault for who's going to pay for it, in effect for what the damage was.

(13:07):

But the point about the due diligence processes, which is what the legislation requires, it isn't that you can be right all the time. And we come across this situation where engineers in particular, something bad's happened and the engineers sort of saying, it's all my fault. I didn't get it right. And you sort of got to point out to 'em. That's not the way the system works. Your duty is to be diligent. You can't be right all the time. Now the world's a complicated place, and the courts understand that. The courts aren't saying that you have to be right all the time. What the courts are saying is that you need to be diligent and demonstrate do you care? That's an entirely different thing. And so when you're talking to one of these engineers or somebody who's got themselves in the situation based saying, well, had you done everything reasonably, you could in the circumstance, because if the answer is yes, then you have been diligent.

Gaye Francis (13:53):

And what else could have you done in the circumstance?

Richard Robinson (13:54):

What else could you have done? That was the same story we had with that CFA captain who sort of said, look, I know if I keep doing this job as a volunteer for the next 10 years, I'm going to lose someone. But what I need to be able to do is look the relatives the next to kin in the eye and say, look, it wouldn't have mattered if it was my son or daughter there. We'd done everything reasonable we could. There are dangers associated with what you do here, and sometimes bad things will still happen.

Gaye Francis (14:21):

So I think we might wrap it there. But what we hope we've shown you today is, and we're going to continue in this season to do a number of applications to the due diligence process. So the due diligence process is a governance process, and it is a process that can be applied to basically anything. And I hope today that we've shown you just how we apply it in the aviation sector. So thanks for joining us, Richard, and we'll see you next time.

Richard Robinson (14:45):

Thanks Gaye.

AI (Artificial Intelligence), Robots, Controls & Liability

Risk! Engineers Talk Governance
Season 4, Episode 2

In this episode, Richard Robinson and Gaye Francis discuss controls and liability when it comes to AI and robots. 

OHS/WHS legislation require achieving the highest level of hazard control that is reasonably practicable. AI/Robots present potential controls to address many safety issues and can be implemented to improve safety. 

They discuss a number of examples where AI and robots are already enhancing safety and removing people from dangerous tasks, and when it comes to due diligence, organisations would need to demonstrate why it is not reasonably practicable to use them. 

The chat also covers how AI provides situational awareness and information to support human decision-making. Quality assurance processes are still necessary to ensure the robustness of AI-generated information. 

And that the use of AI technology also raises questions about liability, ethics, and morals.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss controls and liability when it comes to AI and robots.

Megan (Producer) (00:16):

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, get in touch via admin@r2a.com au.

Gaye Francis (00:34):

Hi Richard, welcome to a podcast session.

Richard Robinson (00:36):

Hi Gaye. Welcome back.

Gaye Francis (00:38):

We're going to talk today about AI, robots, controls and liability. And this sort of pops up as that we've given a number of board presentations and some of our clients have asked us, there's a lot of AI coming, robots coming, how do we have to implement them in our business and what does it mean for us? And I think from our engineering due diligence perspective, it's all about control. AI and robots both present potential controls to address safety issues of concern and how can they be implemented to improve safety.

Richard Robinson (01:17):

And this is the leading thing. And one of the points we keep hammering is that the legislation and OHS/WHS legislation is crystal clear in its objective. You've got to achieve the highest level of hazard control that is reasonably practicable. And it's perfectly obvious that AI in its many manifestations are going to enhance things. And the example that we most obvious is the self-drive cars. And we have a lot of clients that drive long distances. I mean the elimination options just to do everything...

Gaye Francis (01:43):

Remotely or over the phone.

Richard Robinson (01:46):

Over the phone and that sort of stuff. But if you're actually tried to run serious meetings, you've got to decide after a while, if you really want it to work, you should try to do it in person. And so if you've got to drive long distances, what's the way to do it? Now traditionally the way to do it if you had to drive out of hours is make sure you take two people and one person keeps the other one awake. The other option is to put a self-drive car, which is basically a form of AI, to help you get there. And if you start nodding off or something strange happens, it will start doing things. I don't suppose it's going to have a sharp object and poke you or anything like that...

Gaye Francis (02:18):

Elbow in the arm!?

Richard Robinson (02:20):

Whatever the previous version was. But you'll get advice that something's got to happen and if you truly did fell asleep, it'd just pull over the side of the road and stop and everyone else just keep passing past you rather than you becoming a hazard in self. Now that's a form of AI and I don't actually know any clients so far has actually deliberately brought Teslas to achieve this outcome. But it's something I think you'd have to say why you didn't do it if you were called up after the event and a horrible car accident that could have been prevented.

Gaye Francis (02:50):

And that's the question, isn't it? People are asking in terms of is it reasonably practicable in terms of AI and robots and you've got to show why it's not reasonable at a time.

Richard Robinson (03:02):

Correct. And it will change. It's one of the points why standards are ineffective because they're lagging indicators and the mandatory aspects of putting AI in cars that'll take several years to get there after it's proven to be beneficial.

Gaye Francis (03:17):

I think one of the difficult concepts that the clients that we work with are grappling with is the liability issues associated with AI and robots. Who takes responsibility, as you said in the event that there's an accident afterwards. And the way that we've sort of seen it implemented at this stage is there's always a secondary function.

Richard Robinson (03:40):

Correct. It's the backup. It's not the prime. It's like the watchdog we did for the railways in New South Wales. There's a GPS watchdog checking where the trains are and if they get to a certain proximity to the watchdog will bark. Now that's a hardwired thing. There's no intelligence in there at all. But obviously just looking at such a system and you say, how could this be has if it had AI? Well presumably it would actually look at all sorts of other factors where track gangs are, who's doing what over there, what the weather conditions are, and provide the driver with further knowledge and assistance beyond just what it currently does.

Gaye Francis (04:14):

I think that's one of the real strengths with it. It's the provision of that situational awareness and information that then people, humans can make informed decisions.

Richard Robinson (04:25):

Well, it's like when we talk about the marine pilots, which do a lot of work for, I mean they have this personal pilotage unit these days, which is their own independent app aid, but it's got apart from satellite navigation, it's got all the GPS weather forecasting and all sorts of things. And if a sudden squall was coming their way rather than the pilot of having to positively check all the time what the weather's doing, now they'll just sort of say a new weather report, the squalls coming faster than was anticipated.

Gaye Francis (04:52):

So that information's just presented rather than the pilot actually having to go and look for it.

Richard Robinson (04:57):

Correct. So all these sort of improvements and so forth that you might get, you can just sort of see... I mean we had the other discussion about you are a parent in a house with a kid and you disappear off to the toilet and the kid's found a knife and is heading towards the power point. Well, it'd be nice if a AI chirp and said kid with knife approaching power point or something.

Gaye Francis (05:17):

I could just imagine the robot flashing lights, "kid approaching". The other place that we've seen it is probably in your personal space in that specialists are using AI as a diagnostic tool.

Richard Robinson (05:35):

Yes. Well the R2A board requires that I have annual medicals and you're talking to your GP after all the usual tests for the year. And I dunno why the conversation popped up, but for ultra scans and all these other sort of tests that you do, I sort of said, isn't AI going to affect the medical? He said it already is. He said a specialist, the AI ability to detect from ultrasounds and things like that to detect a pattern or anomaly is now better than the humans are. Obviously the trick is of course that it's still a human then comes and looks at it and decides whether or not it should be reported and so forth. So the actual decision-making process remains with the human, but the actual first cut of the 'what does this mean?', the AI is obviously doing a very, very good job.

Gaye Francis (06:24):

We sort of talked about this before and with AI presenting such robust information, I guess there is a tendency or there is the potential that humans can become a little bit lazier and just rely on the information that's provided.

Richard Robinson (06:40):

But if the AI information is better than the human can give beyond reasonable doubt, it's going to happen very fast.

Gaye Francis (06:49):

So where does that leave individuals and organisations in the liability space? If you just say we've relied on that, don't you have to have some sort of quality assurance processes and proof that says that that information is robust?

Richard Robinson (07:05):

But what you're doing is flipping it around. Whereas previously it was the human supported by the AI, now it's the AI being supported by the human. That's where it gets tricky and how that move's going to happen, I don't know. I mean it's like we're talking about the roads and the rule on the sea. The mariners have told us a number of occasions. I mean big ships have an inordinate capacity to stay away from each other. You don't need special rules for the most part. And one of the reasons why I said the rules existed was so if you did have an incident and you do have to decide who's responsible and who's going to pay for what, here it is written down, even though most of the time it's not particularly relevant.

Gaye Francis (07:42):

So it's to assign liability.

Richard Robinson (07:46):

It's to assign liability a lot of the time. And I suspect that's going to keep going for some time. I understand now that the numbers say that if all cars were self-drive to a Tesla standard, there will be less accidents on the road.

Gaye Francis (07:59):

Okay. That's an interesting stat.

Richard Robinson (08:00):

That is a bit of a problem. But how would you make the shift from assigning personal liability to a driver to the AI? Does that mean all Tesla pays for all accidents here and after?

Gaye Francis (08:15):

I don't think they'd sign up to that one.

Richard Robinson (08:17):

I don't think they would either.

Gaye Francis (08:19):

That's a paradigm shift

Richard Robinson (08:21):

It, it really is.

Gaye Francis (08:22):

And you can see that's going to happen. I don't know how the actual turn is going to finally flip it one way or the other, but it will be an interesting space. But I think from our viewpoint as due diligence engineers. And when we talk to our clients, it's really about considering those other options. And we sort of haven't touched on robotics, but robotics are in a similar sort of space in that we've seen clients using robotics to take the human element out of doing some dangerous works. For example, some water utilities were using drones to do their water sampling so their people didn't have to work over water. So that took away the drowning potential. You've seen it with the clearance divers.

Richard Robinson (09:09):

Oh yes. If you're at sea in a big sea and you think your propeller's failed or something, then it's easy to send down an ROV, a remotely operated vehicle, to have a look, presumably managed by the diver, before you send the diver down. You only send the diver down when you really need to. First of all, you're going to have a look with a machine.

Gaye Francis (09:27):

So I think that's when robots are very, very useful.

Richard Robinson (09:32):

Well, the rather depressing part about all this was sort of the Ukraine war that we sort of touched on briefly because the Ukrainians are very rapidly developing electronic warfare is obviously rocketing along. The jamming of satellite signals and GPS signals and those sorts of things, so things can't navigate. So the other way to do it is to program whatever drone you've got. So if it picks, for example, a Russian tank in the distance, it doesn't care about the sequence anymore. It can see the tank, it knows what to do, it knows how to do it and it just goes and does it. But that sort of remote control weaponry is a kind of scary idea. But I think that's where we're heading very fast.

Gaye Francis (10:12):

Oh, that's totally scary. And then where do the liabilities, and I mean the ethics and the morals come into that? Which I think is a whole different podcast around that sort of stuff. And where do we start taking responsibility for some of those technologies?

Richard Robinson (10:30):

I think Ukrainians have a fairly clear view of what they intend.

Gaye Francis (10:36):

Maybe not in the war space, but hopefully in the engineering and the technological space, AI and robots can be used for improving safety for organisations.

Richard Robinson (10:48):

I'm sure that'll be the case.

Gaye Francis (10:49):

I think there's still some questions to answer around the liability issues that potentially can arise for the use of the technology. And I think somehow that there's going to have to be some more robust work around quality assurance and making sure the information that you're getting is robust to make those informed decisions and going forward.

Richard Robinson (11:10):

Well, the other one that we've mentioned a couple of times is that Sydney Decca fellow from Queensland Uni, I think it is. He's a pilot turned professional psychologist. And he just points out in passing that there are now more safety rules out there that nobody, at least of all the person doing their job's got any clue about. But you can sort of imagine, I don't know whether you want it on your hard hat, but the AI sort of camped in your phone, keeping an eye on the surroundings and if it sees something, which it gets a bad feeling about, it will alert you to it. So you don't really have to know all the details because it's not possible. So if you start doing something, and we've seen lots of things where people, they've been doing the job that way for years, but when you go and look at it says, well you're a bit lucky here that you didn't get hurt. And if you had an AI watching it, it would've of chirped up the first time he tried to do it that way.

Gaye Francis (11:55):

I think you're still going back to the value in it at the moment is around that situational awareness and giving the person information to make informed decisions.

Richard Robinson (12:05):

And alerting you to something which you're still got the decision to make. It's not doing it for you.

Gaye Francis (12:11):

Yeah. Alright. Thanks for joining us today, Richard. I hope everyone found that interesting. I'm sure this is a space that will proceed at speed over the next...

Richard Robinson (12:24):

We will be revisiting this for we hear some particularly new or novel implementation that hasn't happened before.

Gaye Francis (12:30):

So thank you again and we'll see you next time.

Richard Robinson (12:33):

Thanks.

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