Arising from a recent expert witness commission, the legal counsel directed R2A’s attention to Makita (Australia) Pty Ltd v Sprowles [2001} NSWCA 305 (14 September 2001), which provides an excellent review of the role and responsibility of an expert witness, at least in NSW.
As risk and due diligence engineers, R2A has the opportunity to work on a diverse range of projects. Interestingly we are currently undertaking two operations due diligence reviews for two very different applications. The first is a review for the power supply at the Monash Medical Centre and the second is the supply of Class A recycled water from the Eastern Treatment Plant.
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In February 2014, we hosted an event to launch the 2014 Update of the R2A text, which was well received.
With many changes to various legislation in Australia, R2A has concluded that the text will be updated annually at least.
Matters of interest in the 9th edition text update include:
The case that launched the negligence tide is generally recognised as Donoghue vs Stevenson (1932). Essentially this tested the responsibility of a drink’s manufacturer for a stomach ache resulting from a late discovered decomposed snail in an opaque soft drink bottle, purchased by one of two friends to share. Until that time, the liability for a bad product rested with the contractual arrangement between the seller and buyer, not a third party friend with whom the drink was shared and who subsequently fell ill.
Interestingly, it was a split decision by the 5 judges in the UK House of Lords as to whether or not the case should proceed at all since the potential liability to the manufacturer lay outside the existing buyer-seller contract. The minority was concerned that a finding for the plaintiff would launch an uncontrolled avalanche of negligence claims in common law jurisdictions, a concern that has pretty much eventuated.
Land Use Planning
Possibly the most unfortunate outcome of the use hazard based analysis using target risk criteria is in land use safety planning for hazardous chemical facilities.
Firstly, if the criteria are not satisfied it tends to sterilise planning areas from development. From an engineering perspective at least, this is just silly. Any site has issues, including windstorm hazards, geotechnical and earthquake potentials, storm surge, flooding and inundation, lightning strike potentials etc. For the design to be successful, all these must be addressed. The fact that there is a chemical exposure is just another hazard to be managed. If in order to be safe, people wind up in an unaffordable, unattractive, air-conditioned bunker, then it may be that the project will not proceed. But this will be for commercial reasons, not safety ones.
The Introduction to Risk and Due Diligence Unit at Swinburne is going well this year with 17 students with a diverse global representation. An aspect of the course is a tutorial presentation on some aspect of the law in different jurisdictions. Some very interesting presentations have been made.
The student from Switzerland described the direct democracy process. Direct democracy involves a citizen-sponsored amendment to the Constitution. 100,000 voter signatures are required, which if achieved requires a referendum. To pass into law, a double majority in both the national popular vote and a majority of the (26) cantonal popular vote must be in favour of the amendment. The successful amendment must then be implemented by the federal parliament.
We are very pleased to announce that after 15 years the R2A text is now in it's 9th edition. New chapters include the R2A Operations Due Diligence model as well as significant updates to the Work Health and Safety chapter and the Quantified Risk Assessment chapter.
Save the Date
To kick off 2013 and to celebrate the 9th edition text launch, R2A will be hosting a private event in Melbourne on Thursday, 7 February 2013 from 3pm to 5pm at Pop Restaurant (Upstairs), 68 Hardware Lane, Melbourne.
It’s hard to believe that another year is coming to a close. As part of our end of year wrap up, here are some highlights that we would like to share with you.
In May, we welcomed Dr Peter Hurley as a Consulting Engineer to our team and would like to thank Peter for his contribution in 2012 and in particular his work on the Enterprise Due Diligence Review for Energy Safe Victoria and the 9th edition of the R2A text.
We were also privileged to work with many clients throughout the year. Here are some interesting projects completed in 2012.
Security of supply of the Victorian Transmission System (VTS) – A review with particular regard to the economic benefits to existing and long-term customers of the proposed Western Outer Ring Main (WORM) Project.
Does ALARP = Due Diligence?
Does ALARP equal due diligence? Well yes, if ALARP (as low as reasonably practicable) is redefined, as appears to be presently occurring.
Once upon a time ALARP meant achieving an acceptable or tolerable level of risk (consequence and likelihood). It was classically articulated by the UK HSE (Health and Safety Executive) in 1988 in the document The Tolerability of Risk from Nuclear Power Stations. The HSE suggested the limit of tolerable risk to a worker is 10-3 per year; the limit of tolerable risk to a member of the public is taken as 10-4 per year. The risk to a member of the public that might be regarded as acceptable, as opposed to tolerable, is then taken as 10-6 per year. Such a concept was then taken up extensively in Australia, for example the NSW land use planning guidelines (2008).
However to satisfy the courts after the event, various caveats have been added to this approach. For example, from the NSW guidelines, … irrespective of numerical risk criteria, the broad aim should be to 'avoid avoidable risk.' Another common caveat is to say that, irrespective of the level of risk, the value of further precautions should always be considered.