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Dust explosions and the
(model) WHS Act
Richard Robinson
17th October 2016
Dust Explosions 2016
1. Objective - reasonable practicability(provided the situation is not prohibitively dangerous)
2. Legal context - due diligence
3. Hazard vs precautionary risk mgt.
4. Demonstrating ‘reasonably practicable’
5. Explosion safety due diligence
Agenda
To describe how to demonstrate ‘reasonable
practicability’ necessary under the due diligence
provisions of the model Work Health and Safety
legislation (as well as the common law) for the
management of dust explosions.
Objective
Due Diligence
Due diligence is a legal concept and represents
an aspect of moral philosophy, that is, how the
world ought to be and how humanity should
behave in order to bring this about.
It’s hindsight driven, typically using the
reasonable person test.
The reasonable person is not any particular person or an average
person… The reasonable person looks before he leaps, never
pets a strange dog, waits for the airplane to come to a complete
stop at the gate before unbuckling his seatbelt, and otherwise
engages in the type of cautious conduct that annoys the rest of
us… “This excellent but odious character stands like a monument
in our courts of justice, vainly appealing to his fellow citizens to
order their lives after his own example.”
The ‘Reasonable Person’
J M Feinman (2010). Law 101. Everything You Need to Know About American
Law. Oxford University Press. Page 159.
Examples:
• Commonwealth Corporations Act (2001)
• Model Work Health and Safety Act/s (2011)
• Rail Safety National Law Act/s (2012)
• NSW Protection of the Environment Act (1997)
• NZ Health and Safety at Work (HSW) Act (commenced 4th April 2016)
Due Diligence in Legislation
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is
reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the
person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is
reasonably practicable, that the health and safety of other persons is not put at
risk from work carried out as part of the conduct of the business or undertaking.
Work Health and Safety Act 2011
Work Health and Safety Act 2011 No. 137, 2011
Penalties for officers of PCBUs
per Barry Sherriff Partner
Norton Rose Australia
(Deakins) 15 October 2010
Qld WHS Act Section 31(3) A
category 1 offence is a crime.
Precaution vs Hazard
Judicial Scrutiny
TimeDecision Unwanted Event/s Judgement
Precaution focussed
Hazard focussed
Future Uncertainty
Future Uncertainty
Scientific and
technical risk
targets
Safety critical
SFAIRP
vs
ALARP
Risk Management of downside (negative or pure) risk
Hazard identification
(Foreseeability)
Implementation
of reasonably practicable
precautions
Preventability
Identify all practicable
precautions for each hazard
following the hierarchy of
control
Reasonableness
Determine which practicable
precautions are reasonable
based on the High Court
established balance
Hazard analysis and risk calculation
process to determine the nature of risk
and the level of risk
(inherently unrepeatable)
Compare against criteria
process of comparing the results of risk
analysis with risk criteria to determine whether
the risk and/or its magnitude is acceptable
(may eliminate further consideration of
acceptable or tolerable risks)
Selected risk criteria
terms of reference against which the
significance of a risk is evaluated
(inherently subjective)
Risk mitigation and management options
process to modify risk.
(may not follow the hierarchy of controls)
Monitoring and Review
(Quality assurance)
Due Diligence
Common law approach (SFAIRP)
(precaution based and criticality driven)
Target risk approach (ALARP)
(hazard based and risk driven)
Criticality
Establish critical
threats hazards
There are two elements to what is ‘reasonably practicable’. A duty-
holder must first consider what can be done - that is, what is possible
in the circumstances for ensuring health and safety. They must then
consider whether it is reasonable, in the circumstances to do all that is
possible.
This means that what can be done should be done unless it is
reasonable in the circumstances for the duty-holder to do something
less.
What is ‘reasonably practicable’ is an objective test
INTERPRETIVE GUIDELINE—MODEL WORK HEALTH AND
SAFETY ACT THE MEANING OF ‘REASONABLY PRACTICABLE’
www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/607/Interpretiv
e guideline - reasonably practicable.pdf viewed 21 September 2016
The two processes come up with different answers,
particularly in court after it has ‘all gone wrong’. Since
the penalties under WHS legislation are extraordinary (up
to 5 years in jail) for recklessness (knew or made or let it
happen), legal counsel are strict in how SFAIRP is
demonstrated.
Of course, you can always do both.
The aim’s the same but results may vary
• Provides risk equity to exposed persons through provision
of a minimum level of protection (that is, recognised good
practice)
• Provides financial efficiency for hazard owners through
consideration of both costs and benefits when deliberating
on further precautions.
The SFAIRP approach
The perception of a reasonable man’s response calls for a
consideration of the magnitude of the risk and the degree
of probability of its occurrence, along with the expense,
difficulty and inconvenience of taking alleviating action and
any other conflicting responsibilities which the defendant
may have.
Reasonably Practicable
Mason J of the High Court of Australia
Wyong Shire Council vs Shirt (1980) 146 CLR 40.
Due
Diligence
Process
All credible,
critical issues
identified
All practicable
precautionary
options identified
Agreed precautions
implemented with
supporting QA system
Disproportionality
decision making engine
used to determine
‘reasonableness’
1. Completeness check - argument to establish all credible critical
issues.
2. Identification of all possible practicable precautions for each
issue.
3. Determination of the reasonableness of the practicable
precautions - in the circumstances.
4. Implementation of a QA system to ensure that’s what’s been
agreed is implemented and sustained.
Engineering Due Diligence
That there is a formal argument as to why all credible,
critical hazards have been identified, including:
• An ongoing historical review
• An ongoing dialogue with the Australian industry with
similar issues
• A functional completeness check (who is exposed to
what?)
• A zonal completeness check (what dusts, where?)
1. Completeness check
That for each significant hazard all recognised good practice
precautions are in place, and if not, have been tested for
reasonableness, and in the particular circumstances
demonstrated as being unreasonable.
2. Recognised Good Practice
That further possible
practicable controls are
considered (even if the risk is
considered to be reduced to a
‘tolerable’ level), and that when
considering further
precautions, the hierarchy of
control is applied. This may
involve threat-barrier (bow-tie)
diagrams
3. Further Controls & the Hierarchy(WorkCover NSW, 2011)
Threat Barrier Modelling (for Lawyers)
Substitution
Uncontrolled
dust cloud
plus ignition
source
Explosion
venting
Loss of
control
point
Injuries
and
fatalities
Dust explosion
threat scenario/s
Elimination
Volume
controlElectrical
fault
Static
line to
ground
etc
Static
electricty
Auto
detect
&
isolate
Friction /
hot work
spark
Hot work
permit
system
Ignition
source
control
Smoking
bans,
mobile
phone
bans etc
Explosion/
fire
Dust
cloud
detection
Human
eyes &/or
auto-
detection
Dust control Ignition source control
Operational
loss of control
Explosion
suppression
LoC
Remote
operation
Access &
exposure
control
Dilution
below
LEL
Good
ventilation
(natural/
forced)
Vacuum
to
remove
dust
PPE
Precautions Mitigations
Uncontrolled
dust cloud
That a quality assurance system is in place to ensure all
reasonable practicable precautions are implemented and
remain effective.
4. Quality Assurance
The point here is that if the test of reasonably
practicability is arguable at a common law balance (the
50:50 tipping point), then the likelihood of being
successfully prosecuted on a beyond reasonable doubt
basis (the level of proof required under the WHS
legislation) is very, very small, but this is a proposition
that ought to be tested with your own legal counsel.
Statute vs Common Law
R2A Due Diligence Engineers
R2A Pty Ltd
Level 1
55 Hardware Lane
Melbourne VIC 3000
Australia
P +61 1300 772 333
F +61 3 9670 6360
E risk@r2a.com.au
W www.r2a.com.au
ABN 66 115 818 338
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