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