In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss Could vs Should in Workplace Safety. (Thanks Nick for your email, case reference and questions.)

They explore the critical distinction between what "could" have been done versus what "should" have been done in workplace safety, sparked by the SKM Services case against Magistrates Courts of Victoria, and discuss how experts often use hindsight to determine what could have prevented an incident, whereas courts must assess what was reasonably practicable with the knowledge available at the time.

Key take-aways include:

• The danger of hindsight bias in safety assessments
• Why documenting decisions not to implement controls is crucial
• The importance of collaborative risk assessment workshops over single-person sign-offs
• How due diligence protects both engineers and directors from liability
• Why safety decisions must be regularly reviewed as technology and circumstances change

Richard and Gaye reiterate that while you can't always be right, you can always be diligent—and proper documentation of your decision-making process at the time is your best defence if something goes wrong.

Article reference for SKM Services Pty Ltd v Magistrates' Court of Victoria & Anor [2019] VSC-460: https://www.claytonutz.com/insights/2019/august/court-clarifies-the-meaning-of-reasonable-practicability-in-ohs-after-finding-a-magistrate-has-misstated-the-test

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au, where you’ll also find their booklets (store) and a sign-up for their quarterly newsletter to keep informed of their latest news and events.

Gaye is also founder of Australian women’s safety workwear company Apto PPE https://www.aptoppe.com.au.