Latest News

Toolbox Tips #1 (Part 6b) - The Concepts of Incident Causation

Kevin Stretton - Friday, March 04, 2016

Part 6b:          Incident Causation Chronology – A Social Perspective

 

These ideas can now be diagrammatically expressed to look at the human & social perspectives of incident causation. It will be important to remember that social morals & pressures can influence a wide range of people in society, including engineers and managers who design work systems.

 

  

 

 

 

 

 

     

1.    Social factors:-

a.    Ignorance

b.    Recklessness

c.    Stubbornness

d.    The environment of peer pressure may influence the thinking of all employees, executives, managers & supervisors and even extend to interfering with their willingness to learn about safety.

 

2.    Fault of Person:-

a.    Excitability

b.    Inconsiderate behaviours

c.    Ignoring safety instructions

d.    Nervousness

e.    These ideas represent proximate reasons for committing unsafe acts.

 

3.    Chemical, Mechanical, Physical or ‘Unsafe Act’ Hazards:-

a.    Using hazardous substances when safer alternatives are available

b.    Standing under suspended loads

c.    Unguarded chains, gears, moving parts & pulleys

d.    All of the above contribute directly to incidents occurring.

 

4.    Incident (the event):-

Events such as persons falling off ladders or being struck by flying objects are typical examples that cause injury.

 

5.    Injury (outcome or the end result):-

Fractures, lacerations & fatalities are examples of the observed results directly linked to incidents.

 

This approach to incident causation differs significantly to an engineering approach which we’ll look at in Part 7 when the two models are combined.

Toolbox Tips #1 (Part 6a) - The Concepts of Incident Causation

Kevin Stretton - Friday, February 26, 2016

Summary of Part 5

 

In Part 5 we came to understand how legal application of causality is used and linked with the design & implementation of management systems. 

 

Objectives of Part 6:

 

To understand & apply the basic concepts of causality when:-

•     Designing management & work procedures [Safe / Standard Operating Procedures (SOP’s) or Work Instructions (WI’s)].

•     Completing an incident investigation.

 

So that through continual improvement and time, elimination of hazards & the prevention of error becomes the norm.

 

Part 6a:           Traditional interpretations of industrial or occupational incidents

 

1.    Industrial incidents result only from injuries.

2.    Incidents are caused directly or only from:-

a.    The unsafe acts of persons

b.    Exposure to unsafe mechanical conditions

3.    Unsafe actions and conditions are caused only by the faults of people.

4.    The faults of people are created by environment or genetic inheritance.

 

Heinrich, H; Petersen, D & Roos, N. Industrial Accident Prevention

 

Issues & problems

 

Typically these types of concepts do little to help us understand the root causes of incidents & yet even after 27 years of changed legislation, continue to be present in the minds of employees and managers today.

 

Even if all 4 points above were true they do little to improve our understanding of how they relate directly to the working environment simply because there is little connection to analysis of dynamic workplaces.

 

For example:-

If a machine with entrapment hazards is guarded with electronic interlocks and these devices fail during a critical point at which an employee is required by design of the SOP to retrieve a part while ‘assuming’ the safety devices are functioning correctly, where does the unsafe act lie; with the employee, their supervisor responsible for implementing an inspection procedure or the designer of the safety devices & work method?

   

You can see from the above example that causation is linked with the chronology or sequence of events through time and that our own perceptions of causation are often wrong because during incident investigations we only focus on the immediate past.

Toolbox Tips #1 (Part 5b) - The Concepts of Causation

Kevin Stretton - Monday, February 22, 2016

Definitions -

 

Causation:-

 

That the employee’s injury was caused by the hazard in question and the level of risk was not controlled either through hazard elimination or risk minimisation.

 

Foreseeability:-

 

That the employer’s operations involved a known hazard with an assessable risk means an incident (with or without injury) could have been foreseen.

 

Preventability:-

 

Was there a reasonably practicable method of eliminating the hazard or minimising the risk?

 

Reasonable:-

 

Was it reasonable to have the hazard controlled via elimination or the risk reduced? The employer’s failure to eliminate the hazard or minimise the risk demonstrates a lack of reasonable care for the safety of employees.

 

 

Traditional legal application of the concept of causation

 

“The employee must prove that, but for the defect in the system, the injury would probably not have occurred. It is sufficient to prove that a dangerous factor present caused or contributed to the employee’s injury. Quite often the employee can show that some safety equipment that the employer could have provided (such as goggles, hearing aids, special boots or clothing) was not provided. If this is proved then the employer can escape liability only by proving that if the equipment were provided the employee would not have used it.”

 

Boulton, M (1988) Torts

 

“The most satisfactory formulation of the legal concept of causality affirms that conduct is causally relevant if it is necessary to complete a set of conditions jointly sufficient for the production of the consequence.”

 

Glass, H; Hughes, M; ‘The Liability of Employers’

 

 

In Part 6 we start looking at how these concepts are linked with & can be used to understand incident investigation for the identification of root causes.

Toolbox Tips #1 (Part 5a) - The Concept of Causation

Kevin Stretton - Friday, February 19, 2016

Summary of Parts 1 to 4

 

In Parts 1 to 4 we have seen the evolution of clear concepts regarding the definition of a workplace and the components needed for a product or service to be realised. 

 

We have also seen how these same components are used by jurors to test the liability of an employer:-

•    Competent employees (People)

•    Safe building, equipment & plant (Assets & infrastructure)

•    Safe work methods supported by information, instruction, supervision & training (Methods).

 

Note:

•    While many of these concepts are strongly related to WHS management it must be remembered that the principle of common law duty of care is a common theme in all Westminster based legislation.

•    Therefore, similar tests apply for breaches of law in employment, environmental care, fair trading, financial practice, operating a motor vehicle and other encoded (prescribed) legislation.

 

 

Factors in determining liability in occupational incidents

 

We now start to look at how jurors apply the tests of causation during an investigation or prosecution.

 

Their main concern is identifying the root cause of an incident and understanding whether prevention was:-

•    Feasible

•    Possible / practical

•    Reasonable

 

The identification of root cause is critical and again demonstrates the important link with the design & implementation of management systems that control the workplace.

 

In the next article we’ll look at some of the definitions that are important to the application of these tests.

Toolbox Tips #1 (Part 4) - Australian WHS Legislation

Kevin Stretton - Monday, February 15, 2016

Distinct evolution compared with the UK

 

·         1865 – Victoria: an employee was injured when, due to corrosion, a restraining chain broke. The truck moved and the employer was found negligent because they had not checked the condition of their plant (safe method or system of work, safe plant).

  

Note: Historical connections

 

·         Workplace auditing & inspections.

·         Development of employer & employee consultation or participation.

·         Employees have a responsibility to identify & report hazards.

 

·         Therefore, an employer may still be negligent where they cannot demonstrate they had trained employees to formally make note of and report workplace hazards (hazard identification).

 

Employee negligence

 

·         From these ideas arose the question of negligence where employees did not report known hazards.

·         An employee failing to notify their employer of hazards and their associated risks was said to have accepted the legal risk and liability.

·         This is often modified by the issue of employees involuntarily accepting the legal risk.

·         However, there is little evidence of injuries reported as a result of another employee’s negligence.

·         And current legislation does provide for this foreseeable scenario.

·         In extreme cases of serious negligence by an employee an employer is allowed the option of investigation & discipline which may lead to dismissal, provided the correct (federal &/or state) procedures are used.

 

Summary

 

Where an employer has neglected their duty to provide:

1.    Effective supervision

2.    Safe equipment, materials & systems of work

3.    Training

 

And knowing that injuries may result from foreseeable incidents, a case of liability will be established.

Food in Brief #8 - Carbendazim in Food Imports

Shelley Inkster - Friday, February 12, 2016
 

In 2012 the Maximum Residue Limit for carbendazim in Australia was 10 ppm, Europe, 200 ppb and in the United States, 0 ppb. Australia began testing of orange juice imports for carbendazim after the US alerted them to the high levels found in imports from Brazil.

 

FDA Import Alert 99-08 DWPE (Detention Without Physical Examination) shows refused imports from more than 20 countries indicating carbendazim to be the reason from 2012 – 2015.

 

The products include: 

 

·         Dates, citrus, stone and berry fruits, juices, concentrates and preserves

·         Mushrooms and other fungi

·         Bee pollen powder

·         Rices – commonly Basmati

·         Therapeutic herbs – Echinacea, Golden Seal

·         Hawthorn berries and Goji berries

·         Pasta

·         Candies

·         Cold pressed avocado oil

·         Prickly Pear and peeled cactus pads.

 

In order to minimise potential trade disruption and because MRLs may vary due to Good Agricultural and Veterinary Practices in each country,  a proposal was made to further align the Code with the Codex and trading partner standards. These MRLs were requested by the Australian Food and Grocery Council (AFGC), the California Cherry Marketing and Research Board, the California Table Grape Commission, the Cranberry Marketing Committee, the Food and Beverage Importers Association (FBIA) and Fruits and Concentrates International.

 

Consumer desire to be able to identify the country of origin of the ‘imported ingredients’ in their ‘made in Australia from Australian and imported ingredients’ purchases is driven, in part, by the continued discovery of chemicals and pathogens in food imports. In addition to carbendazim, the chemicals chloropyrifos, quinalphos, propargite, imidacloprid, azoxystrobin, pentachloroaniline, fenubocarb, oxadiazon and biphenyl were cause for refusal  of food imports by the US during 2014 -2015. 

 

With imports containing carbendazim, DDT, Malathion, Carbaryl and other chemicals  continuing to arrive in and be refused by the US in 2015, so must debate over the ‘pro’s and con’s’ of imported raw materials and food stuffs continue, in turn, fueling disagreement over the acceptance of common international specifications for safe limits on fungicides, herbicides and pesticides.

 

 

US FDA - Pesticides - Carbendazim Update 

 

US FDA Import Alert 99-08

 

FSANZ - Food Issues - Carbendazim 2014

 

FSANZ - MRLs - Proposal M1008

 

FSANZ - MRLs - Proposal M1009

Toolbox Tips #1 (Part 3) - Application of Principles

Kevin Stretton - Friday, February 12, 2016
 

Control of work systems

 

·         The history & relevance of employers’ competency is epitomised in the principle of instruction (proper work procedures) and effective supervision.

 

      ·         In Grizzle versus Frost an inexperienced employee received inadequate instruction

            from a supervisor resulting in the employee being injured.

 

       ·         The supervisor was an agent of the employer and so the employer was liable.

 

Note: (Codification of Common Law principles)

 

·         The passing of critical information or instructions to an agent does not absolve the employer of a duty of care.

 

      ·          Instruction must be supported by:

 

o   A safe system of work (methods)

o   Selection of competent staff

o   Training to maintain competence

 

Note – competence is not the same as ‘skill’.

 

       ·        These concepts eradicated common and out-dated beliefs opening the door for 

              compensation where injuries resulted from defects in equipment and methods or

              untrained staff.

 

·         So we start to see common law duties being integrated into specified legislation which clearly defines responsibilities.

 

       ·         The employer is to provide, maintain & ensure:

 

o   Safe plant & equipment

o   Safe work methods and that these are complied with

o   Employees are trained and competent in their tasks

o   Supervision

o   Legislative compliance

 

·         The employee is to:

 

        o   Use reasonable care for their own safety & that of others

o   Be aware of danger & hazards

o   Use equipment supplied & for the correct purpose

o   Comply with the safe work methods

o   Comply with all lawful instructions

o   Pay attention to their work

       

Leading early cases at common law established the following codes of practice

 

1.    It is necessary to provide a hard form of barrier whether or not such a barrier (as machine guarding) is mechanically feasible or commercially practical.

2.    The likely & unlikely actions of employees have to be considered when designing barriers against hazards.

3.    A hazard cannot be made safe by solely relying upon the good behaviour of attentive workers. The designer of barriers needs to be aware of the worst aspects of human behaviour such as ‘inattention,’ ‘carelessness’, the effect of drugs, emotional upset or somnolence.

4.    It is necessary to design safeguards in such a way that even a person intent on self-injury will be protected.

5.    Ignorance of the existence of a hazard is not condoned, particularly where previous incidents & reports has alerted the responsible party.

  

Codification of common law in Australia

 

The history of common law codification in the United Kingdom was a precursor for similar changes in Australia.

 

Uniquely, the codification process took longer in the UK than it did in Australia.

 

In Part 4 we’ll look at the differences that started to occur even before Federation in 1901.

   

Food in Brief #7 - US FDA Alerted to Carbendazim in Orange Juice

Shelley Inkster - Monday, February 08, 2016
 

In Australia, in January 2010 a review of Maximum Residue Limits by the Australian Pesticides and Veterinary Medicines Authority resulted in a ban on the use of the fungicide carbendazim for all citrus fruits.  Studies found high levels of carbendazim caused male infertility. The APVMA later completed a review of the use of carbendazim and removed use on additional crops and turf.

 

When an American orange juice manufacturer suspected quality issues with imported Brazilian orange juice in December, 2011 and reported the details to the US Food and Drug Administration, it was discovered the orange juice contained the banned fungicide, carbendazim. Although detected at 35 parts per billion (ppb) the US FDA increased monitoring because American standards were set at 0 ppb.

 

In 2012 FDA testing of orange juice imports found levels of carbendazim from less than 10 ppb to as high as 133 ppb with product containing levels of less than 10 ppb being released. Whilst domestic orange juice testing revealed products to contain up to 36 ppb, the FDA sent a letter to the Juice Products Association stating that it did not intend to take action to remove from domestic commerce orange juice containing the reported low levels of carbendazim.

 

 

www.farmweekly - Carbendazim Scare in Brazilian Orange Juice

 

 

US FDA Import Alerts

 

 

IFU - Carbendazim in Orange Juice

QA in Brief - ISO9001 2015 Update #16

Kevin Stretton - Monday, February 08, 2016

Leadership

 

Leadership requirements in the new standard have been designed to refocus an organisation’s quality system & how the following 2008 categories are applied:-

  Authority, communication & responsibilities

Customer focus

Management commitment & responsibility

Management review

Planning  & objectives

Quality policy

 

Within the 2008 version the requirements were limited to the organisation ‘looking inwards’.

 

The 2015 standard now requires organisations to ‘look inwards and outwards’, understanding their processes and structures in the context of their community and industry sectors. There is an expectation that certified organisations will develop, display and promote leadership in a social context whilst understanding the needs of parties within and external to the company.

 

As a result this approach is moving organisations closer to a formalised corporate social responsibility context than was previously the case. It also means that the external and internal relationships of an organisation must now be interpreted with respect to business exposure, risk, opportunities and threats.

 

Additionally, the display of commitment must now come from the executive, senior or strategic management group rather than an appointed management representative which is no longer required in the new standard.

Toolbox Tips #1 (Part 2) - Liability and Employer's Duty

Kevin Stretton - Monday, February 08, 2016

 

The history of encoded precedent

 

•         1862 – Chief Justice Cockburn & later Lord Thankerton in the House of Lords encode common law precedent into standard legislation

•         A clear distinction arises between delegable & personal responsibility

•         The problem had always existed how to define the delegation of authority & responsibility to employees who have no or little control over decisions made in their workplace

•         If responsibility could not be delegated then to what extent does an employer remain liable for enacting their duty of care?

 

Q & A:

 

Question

Answer

What connection is there between this information and that found in legislation?

Managers & supervisors are agents of the employer

What principle is involved?

A clear directive and classification of duty with distinctions on the extent of liability

 

 

Defining the interpretation of care & responsibility

 

•         Whether the employer performs this duty themselves or through an agent (servants) a failure to ensure the duty is performed becomes the employer’s negligence.

•        This includes acts and omissions.

 

•         Therefore, Lord Shaw stated (1912):

o   Employers must provide competent staff

o   Adequate materials, premises, plant & equipment

o   Proper systems of work

o   Effective supervision

 

Q & A:

 

Question

Answer

What connection is there between the 1912 definition and current legislation?

Codification of Common Law

What principle is involved?

Vicarious liability. An incident resulting in injury with a causal link to breaches of the 4 principles above immediately places the employer in a position of liability