The boundaries - a professional perspective

PaulReyneke

In New Zealand we currently have probably the most important health and safety court case in a decade in front of the court: the White Island disaster. I see on the news victims saying they would not have gone onto the island if they knew an eruption was eminent. Firstly, I'm not sure anybody would have gone to the island if this was known, not even the tour guides.

But even more important, from a conceptual perspective, is it important for the tour operators to inform the visitors to the extent that they (the visitors) could make an 'informed decision'? And if it is the duty of the tour operators, where does this duty end?

If I'm, hypothetically, a elevator manufacturer, how much risk information must I provide a user with a potentially extreme claustrophobic fear, and how must I ensure the potential user of the elevator considered the risk of an elevator becoming stuck for a certain(?) time before they entered the evevator?

I'm not sure if the court will answer the question, but as a scientist, I'm not sure it should be a legal question. Should we as safety professionals not have a view on this? Should we 'only' do the 'right' things, i.e. risk assessments, informing the risk owners and potential persons exposed to the risks, etc, because it's a legal requirement? Or should we consider these questions because we are discerning safety professionals?

And if it is a professional question, what are the limits? How deep into the "what-if?" quagmire of a Black Swan-event must we delve? The Act says the controls-test is reducing risk to "as low as reasonably practicable". What is the test to identify extremely low frequency hazards, i.e. very unlikely events? And what is the contribution the risk (level of potential harm) in this: what is the risk-threshold when these low frequency hazards must be identified? Only if it could lead to a fatality (extreme risk), or all levels of harm?

In the latter case the sky is the limit, i.e. the limit can only be set in hindsight. And that cannot be reasonable, can it?

Aaron Marshall

Here we have the difference between hazard management and risk management. Under a risk management system, we specifically accept some risk. In some situations (such as White Island, and other adventure activities) the risk is part of the attraction. The difference is that now, we will happily accept a perceived risk, but not tolerate any real risk, especially when it goes wrong.
The acceptable level of risk needs to be spelt out in the risk management policies. There are some industries that the risk of a fatality simply cannot be eliminated, so must be minimised as much as possible, and this needs to be documented. It's a concept that I find many in H&S find uncomfortable, but is better than denying that there is still any risk of fatality.

Andrew

↪Aaron Marshall

I like the idea of "acceptable risk" and your distinciton between hazard maangement and risk management.

As @PaulReyneke says these are a set of very interesting cases. And the out comes will be very interesting.

And we can begin by thinking that we will do in, say wellington. We know there is an earthquake hazard. And the risk of being seriously hurt and even killed in an earthquake event isn't far away and gets closer as every single day passes.

And we can think (and I am not sure if it has ever been answered) that as the All Blacks enter the field against the South African on Saturday there is a very good chance someone is going to be seriously injured. And people pay to see that. We know that injury is absolutely imminent.

Why should White Island visitors be different?

TracyRichardson

Added to the conversation the emergency management processes here should have been a bit more robust, especially with so many stakeholders involved. Practices procedures and drills with worst case scenarios should be done so that the proper contingency plans are put in place when such emergencies occur.

Aaron Marshall

↪Andrew

It's even more basic than that. Courier drivers, Taxi drivers, all have an acceptable risk level of a fatal accident. There are factors at play that employers simply can't control such as other drivers. Ever think about what the real risk is when getting on an aircraft? What are the manufacturer's acceptable level of risk for a complete airframe loss, because there is one.

The concept of an acceptable risk is spelt out quite clearly in ISO31000.

As for White Island, how many of those tourists would have gone out there if it wasn't an active volcano?

rebecca telfer

Hi
If you are a member of NZISM, there was a webinar held yesterday presented by Grant Nicholson, who is a H&S Lawyer in NZ. The main discussion points were varied but a lot was said around the Whakaari eruption and those companies being held accountable and court proceedings. It was very informative. That session was recorded and will be up on their web page for members.

MattD2

The Act says the controls-test is reducing risk to "as low as reasonably practicable". — PaulReyneke

Going right back into the purpose of the act is "to provide for a balanced framework to secure the health and safety of workers and workplaces".
Essentially the act is in place to limit true free-market / Laissez-Faire capitalism by putting in place additional duties that will not typically develop in a pure profit-motive based self regulated market (specifically regarding HSWA the additional duties relate to worker and workplace safety).

↪Aaron Marshall I like the idea of "acceptable risk" and your distinciton between hazard maangement and risk management. — Andrew

I personally hate the use of "acceptable risk", or at least how it is generally used in business. The main reason that I hate it is that those that are deciding on what is considered an "acceptable risk" are not normally the ones that are exposed to that "acceptable risk" - e.g. it is the company directors / boards / CEOs / MDs / etc. and that decision is usually one of "we have done enough" rather than "we have done all we can".
And doing "all we can" isn't having to do everything possible - there will still be actions that are not practical to do immediately, but what can be done is to plan for ways to action these in the future (i.e. continuous improvement).
Conversely "doing enough" sets a hard stop to managing the risk - nothing more needs to be done because we have already done enough.
Take the Taxi driver / courier example - doing enough is making sure that their vehicle has a current WOF and rego (and unsafe items will be picked up annually), doing all we can is making sure that their vehicle has a current WOF and rego but also periodically inspecting the vehicles (e.g. monthly) to pick up on unsafe items between inspections. This literally happened in a number of companies when NZTA changed the WOF rules from 6 monthly to annual for "newer" cars, where some companies that had previously accepted that the bare minimum legal requirement of a current WOF was adequate risk management had to question the basis for that decision, and if statutory compliance was the same as managing risk so far as reasonably practicable.

robert parton

A few key principles come to mind in response to the OP.
Proportionality - it is key to risk management and has been a legal requirement at least as far back as the '92 legislation
Give much more attention to any credible likelihood of death from exposure to a hazard (an eruption - yes; an elevator - no)
Consider statistical value of life when determining the boundaries of accepting a credible risk of death
Genuinely allow those exposed to the risk assist in working out credible chance of death - again a legal requirement at least as far back as '92

MattD2

Give much more attention to any credible likelihood of death from exposure to a hazard (an eruption - yes; an elevator - no) — robert parton

To expand on that - Give much more attention to any credible likelihood of death (or serious injuries) from exposure to a hazard associated with your business (or undertaking)
an eruption on the island you're running tours on - yes
an eruption on a island of the coast of the city you work in - no
riding in an elevator (claustrophobia or not) - no
supplying elevators - yes

Andrew

↪MattD2

"Acceptable risk" and "doing enough" comes with the concept of the principle of diminishing returns.

Those that ignore this principle can of course keep themselves employed indefinitely but not actually contribute anything meaningful. This is just "busy work". There is no end to doing "all we can". Which would explain the gutter cleaners I saw the other day. One ute up front with flashing lights. The gutter sweeping truck lights ablaze and flashing. Which was then followed by one of those big trucks lit up like Las Vegas with the big "X" flashing merrily away on the back. Lets put aside how blinded I was by it all and just think about the poor planet being killed by all these filthy CO2 emissions.

I'm not so sure your example of the taxi driver is a good one. "Doing enough" is making sure your taxi is in safe condition each time it is out on the road. Ie in warrantable condition every day - not one day before inspection.

This is the whole problem with certification - eg "OSH Forklift Licenses". People think they only have to prove their competence once every few years - when it should be assessed/monitored much more regularly. Despite NZ Land transport thinking you only ever need to be assessed once and you are good to go virtually forever from that point on.

The positive thing about "acceptable risk" is that the decision makers should be placed in a position to make an actual well informed decision. It does not mean just 'lets do this' without some actual constructive thought behind the issue.

MattD2

There is no end to doing "all we can". — Andrew

Yes there is - and I clarified this in my reply, but did miss to mention that there will also be actions which don't actually minimise the risk an appreciable extent (especially when considered agajnst the cost/effort required or opportunity cost of other actions). If you are at the point if diminishing returns then you will have minimised the risk so far as reasonably practicable, i.e. done all you can to minimise the risk.

This is the whole problem with certification - eg "OSH Forklift Licenses". People think they only have to prove their competence once every few years - when it should be assessed/monitored much more regularly. Despite NZ Land transport thinking you only ever need to be assessed once and you are good to go virtually forever from that point on. — Andrew

This is exactly what I meant though. Companies taking the bare minimum statutory requirement (or minimum ACoP guidance) and calling it a day because they have decided it is now an acceptable risk.
While it is a nice sounding catch-phrase "acceptable risk" is not the same as "reasonably practicable", one is a business decision and the other a legal term. If WorkSafe are coming after you because they deem you have not minimised a risk so far as reasonably practicable they will not give a damn that you consider it an "acceptable risk".

MattD2

This is the whole problem with certification - eg "OSH Forklift Licenses". — Andrew

Coincidentally this just popped up in my feed...
https://youtube.com/shorts/ZGSl5nbR5Ro?feature=share

Andrew

↪MattD2

Theres a few great "forklift Fail" videos around. But as long as we have the Official OSH Certificate we'll be right!

Chris Alderson

I would have thought that a probabilistic risk assessment approach would have been fairly easy for a health and safety professional to calculate in this situation - backed up by data from competent experts.

But broadly if you look at White Island we know that it has a major eruption every four to seven years (I think). What you could calculate is the probability that there are people on the island at the time of an eruption and base your risk and controls strategy on this.

What has changed essentially over the past decade is the probability of people being on the island in any given day.

Fifty years ago it was only the odd scientist or fisherman landing there - so you could calculate a daily visitors per day probability of x (say annual visitors /365).
Then the probability of an eruption on any given day (y) would be 1 / days between eruptions (say - 365 x 5years)

The probability of anyone being on the island the same day as an eruption is xy.

For example if the 1980 annual persons on the island was 50 and if the 2020 count was 5,000 (I dont now what it actually was) the the risk of somebody being on the island the same day of an eruption in 1980 would be .008% and 1% respectively.

That 1% risk would certainly change your control strategy around island visitors I would have thought as if you apply quantified ALARP principles then you would always be turning people away from this kind of risk if you had no actual control over lowering it.

Peter Beaver

↪PaulReyneke

"I see on the news victims saying they would not have gone onto the island if they knew an eruption was eminent."

The issue here is the public are awful at assessing risk. People trust what others are doing, and they trust that businesses will keep them safe.

Such trust is naive. It was exploited by business operations that made a good profit for many years. And everyone let it go because the businesses were happy. Those unlucky ones who paid the cost of horrendous injury, lost life and terrible suffering should have been protected from what happened. White Island was always going to erupt. This was no black swan event.

↪PaulReyneke

"is it important for the tour operators to inform the visitors to the extent that they (the visitors) could make an 'informed decision'?"

Yes, but this is difficult. The warning would need to be graphic so people can make the decision both intellectually and emotionally. Intellectual decisions are sometimes very bad because they filter out real consequences. You can give someone something to read but half the people will gloss it, they will listen to what others say, they will take a cue from the body language and expressions of the person who hands it to them, they will set risks aside because they already decided to do the trip and are emotionally invested in it, etc.

Tourist trips to White Island should never have been allowed. Which means the regulator is primarily at fault. The business also are to blame as well but really the regulator should be prosecuting themselves. I guess they have a clause which means they can't do that.

The boundaries - a professional perspective

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