The main duty in safety legislation is for the Duty Holder to ensure safety risks are managed So Far As Is Reasonably Practicable (SFAIRP). There are other specific duties in safety legislation, but I will focus on this one for this article. These principles can also apply to Duty Holders in other pieces of legislation.
I have mentioned the role of Duty Holder in my previous two articles, and I will expand on some of the specifics over the course of this series of articles but given its importance I thought it would be worth spending some time on what a Duty holder is in Safety Legislation.
I will also explain the roles of non-duty holders and more importantly the issues that are created when they start to provide directions to the parties with the legal duty.
The main duty in safety legislation is for the Duty Holder to ensure safety risks are managed So Far As Is Reasonably Practicable (SFAIRP). There are other specific duties in safety legislation, but I will focus on this one for this article.
These principles can also apply to Duty Holders in other pieces of legislation.
A Duty Holder is a party defined in legislation as a party with a specific legal obligation that must adhere to (i.e. a duty). Failure to adhere to these duties can result in prosecution of the organisation, and/or individuals in that organisation with specific delegated authorities in relation to the duties.
A legal duty will generally be on one organisation and cannot be split between parties. In some cases, there may be multiple parties with duties that overlap, and a specific safety interface agreement should be put in place to manage this.
An organisation cannot contract out of their legal duties. It is acceptable to engage parties to undertake activities for you, but you remain accountable for the outcome of those activities.
Duty Holders typically relate to the stage in the asset lifecycle with the most common ones being:
I am going to focus the rest of this article on the design phase duties, but the issues I discuss apply equally to all stages of the asset lifecycle.
Parties undertaking a design have the duty to ensure that their designs manage safety SFARIP. This duty is with the Designer organisation and those parties engaged to undertake the design on their behalf.
Planning phase activities and procurement phases are often overlooked from a Duty Holder perspective, but this is often incorrect. During the development of a business case, or in the preparation of contractual documentation, design decisions are often made. If as part of these processes you are making an irreversible decision that will affect the final product, then you are making a design decision, and Designer’s duties apply equally to you.
Sometimes a Designer is engaged to develop the initial stages of a design on the understanding that another party will complete it. In these circumstances it is good practice for the Designer to assume that each decision they make will be implemented in the final design and apply the same duties as the detailed design.
The Client may have duties as a Designer during the planning and procurement phase. But once they have agreed the scope and engaged a Designer then they should step back and stick to a pure Client role.
The Client’s role is to receive assurance from the Designer as to the design process and importantly to ensure that what is being designed meets their requirements.
A Client can provide direction on what is being designed (i.e., what they are paying for), but not how it is being designed or assured.
A client can undertake due diligence to see how the Designer (as the Duty Holder) has satisfied that they have managed safety SFAIRP but cannot instruct them how to do it. The only exception is if something has been specified in the contract, and then it becomes a contractual compliance issue, it does not, however, take precedence over any legal duties.
For more information on the Clients role in Assurance, read my article here.
The Client cannot instruct the Designer on how to do their design or how to apply their design processes. If they do, then they take on part of the Designer’s duties and are subject to the same legal obligations and liability for their decisions, and any knock-on impacts on the rest of the design.
This applies equally to any organisation acting on behalf of the Client such as Technical Advisors, Independent Reviews, Independent Certifiers, or Independent Safety Assessors.
If you instruct a Duty Holder on what to do, or how to do something, then you take on board the legal accountability under law for those decisions.
This also applies to indirect instructions, for example holding up an approval until comments are addressed. If those comments in any way require the Designer to do something different then they are a de-facto instruction and the individual, their organisation, and the Client all become liable for the impacts of that instruction.
A Client role is like being a passenger in an Uber, you are interested in getting to your destination on time and to the stated fare. How they get you there should not be your concern. If you give the driver different directions and you are late or the fare goes up because you get stuck in traffic, that is your fault, not the drivers. If you grab the wheel and cause a crash, that is your fault not the drivers.
You can talk to the driver, you can ask questions, but don’t distract them. Ultimately if it is unsafe, you can report them, or even stop and get out. But other than that, you should leave the driving to them.
Unfortunately, I see Clients and Clients' Agents providing directions to Duty Holders on an all too regular basis, seemingly oblivious to the impacts of what they are doing or the risk they are exposing their organisation to and not prepared to listen to any objections.
These are some examples that I have come across recently:
There is nothing in legislation that states how designs are to be done, or how a Duty Holder should exercise their duties to manage safety SFAIRP.
The instructions in the examples above are the individual’s personal preference and nothing to do with the any requirements from Standards or Legislation.
As well as their organisations taking on the risks associated with those de-facto instructions, the impact on the project will be to introduce delays and cost overruns through unnecessary rework.
While I usually do my five takeaways, I’ve added a sixth one this time to stress how important this is. Get these right and you will be in a much better position when it comes to understanding the role of Duty Holder under Safety Legislation:
In most cases the Duty Holder would have done the right thing anyway so the chances of a safety incident are small, but if one does occur then the liability on the parties providing instructions can be significant.
In addition to delays and cost overruns dealing with unnecessary instructions, the Client is also leaving themselves open to claims from the Duty Holder for variations of additional costs and extensions of time claims.
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