As a result of our podcast, courses and other presentations that we do, we often receive interesting questions and requests for clarifications, especially when there is other (sometimes) conflicting information published online. We thought we would share some of these with you, as often others have similar concerns. Note that some of the questions have been slightly paraphrased so to standalone. Also, the following responses are provided to give insight but should be thought through for your particular circumstances, as relevant. We always love hearing your feedback and thoughts, and welcome questions via the below button or email admin@r2a.com.au. Q: I have been listening to your podcast in pursuit of better understanding risk, due diligence, Rail Safety National Law and duties of engineers etc. Some topics are hard to rationalise, for example, the relationship and hierarchy of Rail Safety National Law vs for example the Victorian OHS law. Also, what is and isn’t required when it comes to diligence. A: Initially due diligence was all about negligence in the common law. There are two defences: no power - you can’t be held accountable for something you don’t control, and due diligence, that to the extent that you have control, you have ensured that all reasonably practicable controls are in place for all reasonably foreseeable hazards. That became a statutory duty in Vic in the 2004 OHS Act, but without any mention of due diligence, as such. But it did spell out the duty of designers - SFAIRP. That is, elimination and if this was not possible, risk reduction, so far as is reasonably practicable (SFAIRP). When the model WHS Act turned up, it spelt out the due diligence duty of the business’s controllers (the board, etc.) as they have final say on the money and hence control. There can be discussion as to why that was done, but we suspect it’s got a lot to do with trying to ‘pierce the corporate veil’. Those in control just can’t say it’s all someone else’s problem, that they delegated the responsibility and accountability to someone else. They (the company’s officers) always retain accountability to ensure that the Person Conducting the Business or Undertaking (PCBU) demonstrates that all reasonably practicable controls are in place for reasonably foreseeable hazards. However, the SFAIRP duty of designers (meaning engineers) remains the same as the Vic Act. To us at R2A, due diligence is all about pre-event design (the current popular term is safety-in-design) that can survive post-event scrutiny. And engineers, especially as employee designers, have that SFAIRP (due diligence) duty to ensure reasonable care that this is achieved. Q: Our organisation is using the concept of the "Cost of Risk". How can this be used to ensure effective risk management which can then be translated into cost improvement (or something to this effect). A: When the issue of concern just involves property loss with business interruption and, perhaps, reputation damage costs, it’s all pretty straight forward. However, it gets much more complex if a dollar value for human harm or death is included, which some economic modellers like to do. But because of the negligence implications of the WHS legislation for management, including the dollar value of a human life as an arbiter to make safety decisions has become much more complex. These days we prefer to use a pros and cons approach in a stakeholder workshop where all the concerns and benefits of the alternative courses of action are expressed in a less explicit manner. Doing this on a disproportionality basis seems to be the optimal approach at the moment. Q: Always a great podcast! There are still those in industry that believe SFAIRP is a cheap 'do nothing' approach, which is very far from the truth. I have come across people that are uncomfortable with SFAIRP because "it can only be decided by a judge" (and therefore no one else). Are you able to go over strategies to prove SFAIRP has been achieved? A: There are a few strategies that we use to demonstrate SFAIRP. The first is to make sure the right stakeholders are involved in the process and it isn’t completed by a single person in isolation. The next thing is to ensure that the group can demonstrate that a structured and rigorous process has been completed. The group then needs to document that process and the additional controls that have been considered, and most importantly, the reason(s) why each of these are considered SFAIRP or not, usually in the form of a pros and cons table. The elements to consider are expense, difficulty and inconvenience and utility of conduct, meaning what good things go missing if you adopt that course of action. We actually think it is more important to document why you are not going to do something. Depending on the issue of concern and the context of the situation, the SFAIRP assessment may need to be revisited, and potentially revised as time goes on and circumstances change. For example, there may be an emerging technological solution that may not be reasonably practicable in 2025 due to expense or that it hasn’t been proven for your particular application, but that may change over time. These are living assessments / documents that need to be reviewed and updated as required. | 
