My simple interpretation of this legal view is as follows: Reasonably Practicable is an Organisational Duty.  The Duty Holder must put in place ‘Proper Processes’ to:

a) identify and eliminate/manage safety risks SFAIRP and

b) ensure that the individuals applying those duties take Reasonable Care (i.e. are trained, competent, supervised, etc.).

From a legal point of view this ‘Proper Processes’ perspective is of equal, if not more, importance than the minutiae of their application (which we love discussing).

So, this gets me to thinking....

When a Supplier is engaged by a Client to undertake design on a project, the supplier is generally required to provide some form of safety management plan describing what they intend to do.

The Safety Management Plan becomes the project specific application of the Designer’s ‘Proper Processes’ that the Supplier as a Duty Holder will follow to eliminate/manage risks SFAIRP and ensure Reasonable Care is taken.  This is all good and exactly what the legislation expects of a Duty Holder.

But what happens when the Client starts commenting on the Management Plan?

What happens when the Client uses the contract (i.e. we won’t approve the Plan it until our comments are addressed) to get the Duty Holder to change their ‘Proper Processes’?

[I am not talking here about compliance with specific clauses in a contract, but preferential views on how those clauses are applied.]

The first aspect of this is that by commenting on the Duty Holder’s Processes in the Plan, the Client is effectively saying that that they don’t consider the suppliers processes to be Proper, and by inference that they don’t accept that the Supplier is a competent organisation with competent people that know how to comply with their legal duties.

Secondly (and this is something that I would welcome your views on in the comments) by instructing their preferred processes on the Supplier, does the Client therefore take on some, or all, of the duties of the Designer? The Proper Processes now being used to manage safety are now the Client’s processes, not the Suppliers.

We know that that the Client retains accountability for specific design instructions they give to the Supplier, but to what extend does this extend to the design management processes as a whole?

I would expect that in a prosecution there would certainly be a case to answer that the Client was, is part, accountable for the Designer’s legal duties.

Assuming this is correct, I also wonder how many Client organisations appreciate the risk they are being exposed to when at their staff and representatives are directing their suppliers’ processes each and every day.

Looking forward to your thoughts and comments below.

#SFAIRP #Assuracne #SafetyinDesign

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