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Richard M Robinson
BE BA FIEAust MSFPE HonFAMPI
of
PRESENTER:
R2A Due Diligence
Engineers, Victoria
Paradigms
r2a
DUE DILIGENCE ENGINEERS
2
SFAIRP ALARP
of due diligence.
! SFAIRP ≠ ALARP
SFAIRP is precaution based.
3 4
Hazard vs Precaution Reasonableness (after Sappideen and Stillman 1995)
Precaution focussed
Judicial
Scrutiny
Hazard focussed
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Due diligence is a legal concept that seems According to Tony Robinson (Baldric):
to manifest itself in at least two ways: !
! The common law particularly flows from King
1. As a defence against negligence in Henry II (circa 1266) and a desire to extend
common (case) law, and the influence of the King’s justice by sending
!
2. In statute law, especially for Lord Judges on circuits, consistently applying
the ‘common’ laws observed in the various
investment advice and, more recently,
feudal fiefdoms, thereby superseding the
OHS matters. justice systems of the local aristocracy and
enhancing the power of the king.
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11 12
Donoghue v. Stevenson (1932) Due Diligence
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A/ASIA. PTY. LTD. [1980] HCA 51; (1980) 147 CLR 142 A/ASIA. PTY. LTD. [1980] HCA 51; (1980) 147 CLR 142
1. Neither the carrier nor the ship shall be liable for loss or
heavy weather in the Great Australian Bight, damage arising or resulting from unseaworthiness unless
the severity of which was unusual but not caused by want of due diligence on the part of the carrier
unforeseeable, a number of drums of cleaning to make the ship seaworthy, and to secure that the ship is
properly manned, equipped and supplied...
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HIGH COURT OF AUSTRALIA
A/ASIA. PTY. LTD. [1980] HCA 51; (1980) 147 CLR 142 Due Diligence
Reynolds J.A. summed up the conclusion of the Court (of
Appeal of the Supreme Court of NSW) in the following words:
! be negligent.
• Deputy Prime Minister the Hon Julia Gillard MP, Minister for Employment and Workplace
defence against common law negligence. Relations (Cth)
Now, with the commencement of the model • The Hon Tim Holding MP, Minister for WorkCover (VIC)
• The Hon Cameron Dick MP, Minister for Industrial Relations (QLD)
WHS Act in all jurisdictions except Victoria • The Hon Paul Caica MP, Minister for Industrial Relations (SA)
and Western Australia, due diligence is a • The Hon Lisa Singh MP, Minister for Workplace Relations (TAS)
• Ms Liesl Centenera, proxy for Mr John Hargreaves MLA, Minister for Industrial Relations (ACT)
statutory defence against criminal breach of • Ms Laurene Hull, proxy for the Hon Robert Knight MLA, Minister for Public Employment (NT)
Apologies:
of that legislation. • The Hon Robert Knight MLA, Minister for Public Employment (NT)
• The Hon John Hatzistergos MLC, Minister for Industrial Relations (NSW)
• The Hon Martin Pakula MP, Minister for Industrial Relations (VIC)
Communiqué from Australian, State, Territory and New Zealand Workplace Rela;ons Ministers’ Council (18 May 2009).
25 26
Bolding by R2A
27 !
You may come across it as SFAIRP (“so far as is There are two elements to what is ‘reasonably
reasonably practicable”) or ALARP (“as low as practicable’. A duty-holder must first consider
reasonably practicable”). SFAIRP is the term most often what can be done - that is, what is possible in
used in the Health and Safety at Work etc Act and in the circumstances for ensuring health and
Regulations. ALARP is the term used by risk safety. They must then consider whether it is
specialists, and duty-holders are more likely to know it.
We use ALARP in this guidance. In HSE’s view, the two reasonable, in the circumstances to do all that
terms are interchangeable except if you are drafting is possible. This means that what can be done
formal legal documents when you must use the correct should be done unless it is reasonable in the
legal phrase. circumstances for the duty-holder to do
!
something less.
UK HSE’s document, ALARP “at a glance”
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Engineers often argue that, if you Rejection of the risk management standard
set the law aside, the only way to (ISO 31000) approach as a competent method of
demonstrating safety due diligence in Australia, at
demonstrate due diligence is the least of high consequence, low likelihood events.