This is the second in a series of articles explaining how standards can be used to define what is Reasonably Practicable when considering safety risks.

In Part 1, I explained how Good Practice can satisfy the Legal Test of Reasonably Practicable.  If a Standard can be shown to be Relevant it can be considered Good Practice and therefore Reasonably Practicable.

However, this is not ‘a one size fits all’ solution and is not applicable in every case, as the Standard must be deemed to be Relevant for the Good Practice Claim to be valid.

Each decision must be context specific, and the standard has to be determined as Relevant by a Competent Person.  There are many instances where stating compliance to a Standard would not be sufficient to meet the Reasonably Practicable test, however there are an equal number of cases where it would.

In this article I explain the various considerations when deciding to use compliance with Relevant Standards as a Good Practice Safety Claim.  I provide several examples showing both perspectives and explaining the considerations for each case.

In the next article (Part 3) I will provide some broader context about standard selection and use.

Context

I have explained the principle of Reasonably Practicable (including why ALARP and SFAIRP are the same) in previous posts so I won’t go into details again, if you need a refresher then this link is to a video I made.

The two considerations which are most relevant to this article and which I will expand on for each example are:

‘Ought reasonably to know’

The part of the legislation (WHS Act 2011) that I will focus on is:

S18 (c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk,

In this article the term ‘person concerned’ is the individual, or group of individuals, undertaking the Risk Analysis process on behalf of the Duty Holder organisation.

Should or Could

When determining what is Reasonably Practicable, the consideration is to identify and implement what ‘Should’ be done, not what ‘Could’ be done.

This is a common source of confusion as some of the early guidance in Australia presents a different view, however it has now been clarified by the Supreme Court of Victoria in 2019 [VSC 460].

Examples

The following are based on real examples that I’ve dealt with over the last couple of years that show where Standards can, and cannot, be used as Good Practice to meet the Reasonably Practicable Legal Test.

Railway Signalling

A lot of jobs on the railway involve modifications to the track and signalling layout.  When undertaking risk workshops for trackwork they often consider a modification to the signalling as a potential cause of a collision hazard.  The generally accepted safety claim in these situations is that the signalling modifications will comply to the relevant signalling standards.

In these cases, the Signalling Standards represent the Rail Infrastructure Manager’s (RIM) Good Practice, and this satisfies the Reasonably Practicable test.

Collisions between trains represent the most significant uncontrolled risk on the railway.  Because of this, there is a very well developed set of standards, competence criteria, and procedures for managing this risk.  These standards represent the widely accepted safety control for these risks (i.e. the Good Practice).

Ought Reasonably to know

In this case the person undertaking the Risk Analysis would be a Signalling Engineer. They would have a competence assessment and maybe a License from the Institute of Railway Signalling Engineers (IRSE).  In this role they ‘ought reasonably to know’ about collision risks and the use of the specialist signalling standards as the Good Practice risk control.  They would be in the position to make the determination that the standard was Relevant and therefore compliance with the Signalling Standards means that they have done what was Reasonably Practicable.

Should or Could

For Signalling, the RIM’s Standards are the Good Practice, they ‘Should be’ applied, and are Reasonably Practicable. When undertaking minor signalling work there's no requirement to investigate whether additional signalling controls need to be put in place.  We don't have to investigate whether we need to introduce more track circuits, additional signal heads, brighter lights, etc.  while these ‘Could’ be done there is no reason why they ‘Should’ be done as Reasonably Practicable has been met through Good Practice.

Fire Exits in a Building

When designing any building, one of the risks that needs to be addressed is fire, and one of the primary controls for fire is the provision of suitable fire exits.

In Australia the National Construction Code (a.k.a. Building Code of Australia) provides very clear guidance on the provision of fire exits, both in terms of the number of exits and the distance to an exit.  In most cases compliance with the NCC represents Good Practice and is Reasonably Practicable.  The Risk Analysis does require the Duty Holder to determine if it is relevant and there may be exceptions (see below).

Ought Reasonably to know

In this case the person undertaking the Risk Analysis would be the building designer and/or a Fire Engineer. They would have a competence assessment and in some States be a registered engineer.   In this role they ‘ought reasonably to know’ about fire risks and also the use of the controls in the NCC as the Good Practice approach.  They would be in the position to make the assessment that the NCC was Relevant and that compliance represents Good Practice and is Reasonably Practicable.

Should or Could

Provided it is deemed as Relevant for the specific hazard, compliance with the NCC represents Good Practice and is Reasonably Practicable.

When designing the building, there is always the option to put in more fire exits or to shorten the escape distance.  While these ‘Could’ be done, there is no reason why they ‘Should’ be done as Reasonably Practicable has been met through Good Practice.

There may be exceptions

Part of the role of the building designer and/or Fire Engineer is to determine what the building may be used for, and as such the associated level of risk.  Say for example it is to be an industrial premises with hot works or storage of flammable materials, then they ‘ought reasonably to know’ about the increased risk and that the standard provision of the NCC may not be sufficient.  In this case an Explicit Risk Assessment would be required to determine what is Reasonably Practicable.

Machine guarding

In a lot of factories there are machines with moving parts, these present a risk to workers, or other people in the vicinity, that they could be trapped or crushed in the moving parts.

There are industry standards which require risk assessments to be done and guarding to be put in place.  These standards are not explicit and rely on an assessment by an individual as to where the higher risk areas are.  This would be based on a consideration of where the moving parts are, and a consideration of where people may be reasonably expected to be present and in the vicinity of these moving parts.

In these circumstances the application of the standard represents the ‘should do’, however the specific outcome requires a risk assessment to be undertaken by the person.

This would be considered to be a ‘Process Standard’ where it defines a risk assessment process rather than specific technical solutions.

In this case, stating compliance with the Standard alone would not be a sufficient justification for Reasonably Practicable, as a specific guarding risk assessment would also be required.

Ought Reasonably to know

In this case the person making the determination should have a knowledge of machinery and guarding and ‘ought reasonably to know’ that a risk assessment would need to be carried out to determine where guarding was required.

Should or Could

The ‘Should’ or ‘Could’ in this circumstance would be determined by a risk assessment.  Where there is a reasonable expectation that a person may be in proximity of moving parts, then guarding ‘Should’ be provided.

There may be moving parts but where a person is not reasonably expected to be due to physical location or other specific operational controls such as Permit to Work may be in place.  While guarding ‘Could’ be provided here, the risk assessment would determine if it ‘Should’ be provided.

Railway Security

A new railway was being designed, and at one location the track transitioned from a ground level alignment to a viaduct.  The transition from the raised embankment to the viaduct structure presented a security risk, where people could potentially climb up the slope and access the railway.

While there were a number of applicable standards in place, none of them considered the specific risk as it was presented, therefore none of them could be relied upon as Good Practice in this application.  In this case an Explicit Risk Assessment supported by a human factors analysis and a physical security assessment were required to determine the Reasonably Practicable controls.

Where there a multiple interfacing assets or systems contributing to a risk, then it is unlikely that a ‘Compliance with Standards’ position be used to identify Good Practice and therefore Reasonably Practicable.

Note: While no Standards could be considered Good Practice in this situation, they may have had the option to consider a Reference System, but chose the Explicit Risk Assessment option instead.

Ought Reasonably to know

In this case the ‘person’ was actually a group of specialists from different disciplines.  Together they ‘ought reasonably to know’ that there were no specific standards addressing this risk and an assessment of design options and potential controls would be needed.

Should or Could

As part of the assessment a number of additional security measures were identified as things that they ‘ought reasonably to know’.  All of these additional measures were practicable and  ‘Could’ have been implemented.  The supporting risk assessment identified that some (but not all) of them were also reasonable and ‘Should’ be implemented.

How to Determine if a Standard is Relevant?

The use or adoption of a Standard as Good Practice is usually done by a Regulator or the Client Organisation.  As part of the Risk Analysis, it is up to the Competent Person to determine if the Good Practice in the Standard is Relevant for the specific risk under consideration.

There are no hard and fast criteria, and it is really up to the Competent Person to make the determination, but these are the principles that I use to help inform and assess these decisions.

Factors that support a decision

While compliance with standards can often be used as a method of achieving Reasonably Practicable, it must be done with caution.  These following five tests should apply:

• The Standard is current and it is readily available.
• The Standard has previously been used in the same regulatory environment and accepted as ‘Suitable’ (i.e. Good Practice).
• The determination must be made by someone who is competent, understands the risk, understands the Standard, and how it is intended to be applied.
• The competent person must be satisfied that the standard is relevant to the issue under consideration and specifically addresses the safety risk under consideration.
• They must be satisfied that the control is specific and that it will address the risk in a satisfactory manner.

Always remember that the legal test here is going to consider what a professional ‘ought reasonably to know’ about the risk and the controls.

Factors that do not support a decision

When one of the following applies, then a standard may not be appropriate to achieve Reasonably Practicable, or maybe some additional steps are required to make the case:

• The standard does not have a specific technical control, but requires interpretation by the user, in this case the application may need to be supported by a risk assessment.
• Some standards describe a process or require a risk assessment to be undertaken, in this case you may need to provide evidence that it has been followed correctly.
• The person making the decision is not technically competent to understand the risk or the controls.
• There may be no relevant industry standards, so a standard from another industry could be used, but there would need to be justification as to why it was deemed appropriate.

Takeaways

When determining if a Standard can be used to satisfy the Reasonably Practicable Legal Test:

1. The Standard should be readily available and widely used in your industry or regulatory environment.
2. The Standard must be Relevant to the risk under considerations.
3. The decision on whether the Standard is Relevant is made by a competent person.
4. The control must address the specific risk in the way that is intended by the Standard.
5. While process standards should be followed, they also require the outcome of the process to be implemented.

Please check back in the coming weeks for the next articles in this series.