Insurance Considerations for Designers

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Insurance Considerations for Designers

 

Insurance considerations – are you covered?

It is important that designers are aware of what is covered by their insurance policies in relation to Safe Design and WHS legislation.

Professional indemnity insurance will cover the designer for civil or common law claims, but most do not cover criminal prosecutions or fines and penalties which may arise from a breach of WHS legislation.

We suggest designers familiarise themselves with their existing insurance policies and ensure that they’re covered. A few insurers are now including some form of cover for damages and fines in their professional indemnity insurance packages. We advise you ask your insurer about the extent of the cover provided.

When changing insurers, it’s also important that designers request that the retroactive date be set to unlimited to ensure they’re covered for work prior to changing to the new insurer. If a designer retires or ceases to operate, it would be prudent to obtain ‘run off’ cover as the safe design legislation applies for the life of the structure.

Your Safe Design obligations

Duties of designers under safe design legislation

If you’re a building designer, architect, engineer, or other building design professional, we encourage you to enrol in our flexible and convenient ‘Safe Design Online Short Course’. 

It has been designed to assist you understand and practice safe design principles and is endorsed by the Safety Institute of Australia (SIA)’s Professional Development.

Need more info, contact us.

Safe Design Legislation & Harmonisation

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Safe Design Legislation and Harmonisation

 

Legislation and Regulation

As a designer, are you fully aware of the work health and safety legislation and regulations in the State or Territory that you practice?

In 2009, Safe Work Australia (SWA), was established to improve work health and safety and workers’ compensation arrangements across Australia. Following a national review into relevant laws across the country, in addition to extensive public consultation, SWA created a model work health and safety (WHS) Act and WHS Regulation endorsed by the Workplace Relations Ministers’ Council (WRMC). The harmonisation of WHS legislation in Australia was proposed to:

  • reduce regulator burdens,
  • protect the health and safety of workers and workplaces,
  • reduce the compliance costs for business, and
  • improve efficiency of regulators.

All states and territories agreed to harmonise their work health and safety laws so each jurisdiction would be similar, however individual state and territory regulators are responsible for adopting and enforcing their own laws. And, designers have a responsibility to ensure they’re meeting the relevant requirements in their individual state or territory.

Understanding the Legislation Framework

The following framework shows how the elements under WHS legislation correlate:


 

  • The Act outlines duties in relation to workplace health and safety including those of designers.
  • Regulations and Mandatory Standards detail the mandatory requirements and provide additional information about how designers can fulfill their duties. Other legislative provisions include the National Construction Code of Australia (NCC) including the Building Code of Australia (BCA) and the building laws in each jurisdiction (state or territory).
  • Codes of Practice (COP) and Non-Mandatory Standards provide guidance on how to implement the legislation. Compliance is mandated unless the same or better is achieved.
  • Standards include Australian and technical standards – some are referred to in legislation (law).
  • Guidance Material include industry-specific safety standards and guidance material produced by the regulators and industry.

 

WHS Legislation and Regulation by State or Territory

The legislation and corresponding regulations in each state and territory in Australia vary slightly. It’s important that designers are familiar with their duties in the state or territory in which they practice. The following table has an overview, with relevant links to help.

State or Territory

 Legislation Regulator and Harmonisation Date
Australian Capital Territory

 

 

 

 

 Work Health and Safety Act 2011 (ACT); and Work Health and Safety Regulation 2011 (ACT).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

 WorkSafe ACT

Commenced 1 January 2012

 

 

 
New South Wales

 

 

 

 

 Work Health and Safety Act 2011 (NSW); and Work Health and Safety Regulation 2017 (NSW).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

 WorkCover NSW and SafeWork NSW

Commenced 1 January 2012

 

 

 
Northern Territory

 

 

 

 

 

 Work Health and Safety (National Uniform Legislation) Act 2011 (NT); and Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

 NT WorkSafe

Commenced 1 January 2012

 

 

 

 
Queensland

 

 

 

 

 Work Health and Safety Act 2011 (Qld); and Work Health and Safety Regulation 2011 (Qld).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

 Workplace Health and Safety Queensland / WorkCover Qld

Commenced 1 January 2012

 

 
South Australia

 

 

 

 

 

 Work Health and Safety Act 2012 (SA); and Work Health and Safety Regulations 2012 (SA).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

 SafeWork SA

Commenced 1 January 2013

 

 

 
Tasmania

 

 

 

 

 

 Work Health and Safety Act 2012 (Tas); and Work Health and Safety Regulations 2012 (Tas)

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

 WorkSafe Tasmania

Commenced 1 January 2013

 

 

 
Victoria

 

 

 

 

 

 

 Occupational Health and Safety Act 2004 (Vic); and Occupational Health and Safety Regulations 2017 (Vic).

Consider safety during:

  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning

Excludes:

  • Construction and Demolition stages
  • Residential dwellings (apart from workplaces)
 WorkSafe Victoria

Commencement of National legislation – currently deferred

 

 

 

 
Western Australia

 

 

 

 

 

 

 Occupational Safety and Health Act 1984 (WA); and Occupational Safety and Health Regulations 1996 (WA).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning

Excludes:

  • Demolition at end of life
  • Residential dwellings (apart from workplaces)
 WorkSafe WA

Commencement of National legislation – currently deferred

 

 

 

 
Commonwealth

 

 

 

 

 

 Work Health and Safety Act 2011 (Cth); and Work Health and Safety Regulations 2011 (Cth).

Consider safety during:

  • Construction
  • Purpose for which it is designed (Workplaces only)
  • Maintenance, repair, cleaning
  • Demolition

Includes commercial and residential buildings.

Australian Government Comcare

Commenced January 2012

 

NEED MORE INFO? Talk to us.

Duties of designers under safe design legislation

Want to find out more about your Safe Design obligations and how to navigate these in relation to your specific design project? Get in touch! You can also download our FREE EBOOK.

We’ve also developed a great training resource specifically for building designers, architects, engineers, and other building design professionals. Check out our flexible and convenient ‘Safe Design Online Short Course’, designed to assist you understand and practice safe design principles. It’s endorsed by the Safety Institute of Australia (SIA)’s Professional Development.

Need more info, contact us.

Safe design - Legal overview

Safe Design – A Legal Overview

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Safe Design – A Legal Overview*

This article on ‘Safe Design – A Legal Overview’ is an excerpt of content from Safe Design Australia’s ebook “Safe Design in Practice, for designers of structures.’

 

It’s important to remember that the purpose of the Work Health and Safety Act (WHS) is about encouraging a collaborative approach to risk management and involvement of all stakeholders to promote a safer outcome for workers during the lifecycle of the structure as a workplace. More than one person or entity can have a duty in relation to the same matter. Prevention of incidents is the preferred outcome.

Health and safety duties under the WHS Act

Under the WHS Act, the ‘health and safety duties’ (refer sections 19-29) that would most likely apply to designers are contained in:

  • Section 19 – the primary duty of care – imposed on all persons conducting a business or undertaking; and
  • Section 22 – duties of designers.

A related duty to that imposed on designers is contained in Section 26 – duties of persons who commission structures (the client).

There are also further health and safety duties that may be relevant to designers and clients in relation to structures including duties of PCBUs who manufacture (s23), import (s24), or supply (s25) structures or those who install or commission structures (s26).

Additionally, there are health and safety duties on individuals connected with a designer, including officers (s27), workers (s28) and other persons at a workplace (s29).

Other duties and provisions of the WHS Act

There are various other provisions of the WHY Act, including duties that are relevant to PCBUs, including designers.

For example:

  • Sections 35-38 state when a duty holder must notify the relevant regulatory body in their state of a work health and safety incident.
  • Sections 40-45 relate to authorisations for particular workplaces, plant or substances and prescribed qualifications or experience.
  • Sections 46-49 provide for consultation by a duty holder with others, including workers and other duty holders.

WHS Regulation

The WHS Regulation is made under the WHS Act. The Regulation relates to a range of matters and generally provides more specific guidance and/or obligations than contained in the WHS Act. However, it’s important to note that an obligation imposed by the WHS Regulation in relation to health and safety does not limit or affect any duty the person has under the WHS Act, or unless expressly stated, any other provision of the WHS Regulation (reg 11). In most instances, the failure to compliy with a WHS Regulation results in a significantly lesser penalty than a failure to comply with a provision under the WHS Act.

Potential legal consequences of breach of the WHS Act for designers

The potential legal consequences for a breach of the WHY legislation are varied, but the main options available consist of:

  • A monetary penalty;
  • Imprisonment (individuals only);
  • An improvement notice;
  • A prohibition notice;
  • A non-disturbance notice;
  • Enforceable undertakings;
  • Adverse publicity orders
  • Orders for restoration;
  • Work health and safety project orders;
  • Training orders;
  • Injunctions; and/or
  • A civil penalty.

Other legal claims that could be made as a result of a health and safety incidence include:

  • A worker’s compensation claim;
  • A claim under anti-discrimination legislation; or
  • A claim under industrial law (e.g. unfair dismissal, unlawful termination, general protections).

These types of claims are more likely to be made by an employee or contractor against an employer or principal (including by an employee or contractor of a designer) rather than a third party against a designer.

More than one consequence

It’s also possible that if an incident occurs, a designer may face more than one legal consequence. E.g. where both a criminal prosecution and civil law claim could be pursued.

 

ENSURE YOU’RE MEETING YOUR DUTIES AS A DESIGNER

Want to find out more about your Safe Design obligations under legislation? Download our FREE EBOOK.

Or if you’re a building designer, architect, engineer, or other building design professional, we encourage you to enrol in our flexible and convenience ‘Not Boring Safe Design Course’, designed to assist you understand and practice safe design principles and endorsed by the Safety Institute of Australia (SIA).

Need more info, contact us.

* The information in this article is an excerpt of content from pages 24-27 of Safe Design Australia’s ebook “Safe Design in Practice, for designers of structures” and was provided by Michelle Cooper, Director, People+Culture Strategies (PCS).
Genoa Bridge Tragedy

Genoa Bridge Tragedy: Who’s responsibility is it?

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The Genoa Bridge Tragedy. The question of responsibility.

 

The Genoa Bridge Tragedy: On 14 August 2018, a viaduct – a major motorway, constructed in the 1960s in the north of Italy, collapsed, killing 43 people. Cars, trucks and people dropped suddenly, crashing to the ground 150 metres below. Sounds surreal in this day and age. But it did happen.

Once the initial shock subsided and emergency efforts completed, the attention turned to questioning – just how did this happen?

A “cable-stayed bridge”, the design featured two pretensioned concrete cables used on both sides of the pillar.  According to an article on Archinect.com, the design, “subject to corrosion, it may have made the bridge, which required constant maintenance as an essential traffic hub, vulnerable to collapse.”

An engineer who worked for the company that constructed the bridge claims that the bridge’s supporting piles weren’t built with anti-seismic materials and did not have the capacity to support the weight of heavy traffic.

As reported on News.com, the engineer that designed the bridge “warned four decades ago that it would require constant maintenance to remove rust given the effects of corrosion from sea air and pollution.”

The power of hindsight

Again, hindsight rears its ugly head with a raft of finger-pointing and mismanagement claims. Ultimately a formal investigation into the Genoa Bridge Collapse will look at a range of possible causes including materials used, wear and tear, heavy traffic, structural flaws, poor maintenance budgets and other problems. It raises an important topic for conversation and action.

The considerations for design components of structures spans well beyond the initial construction and ready for use stage. It shows the importance of understanding lifetime usage, maintenance and ease of access, the sustainability and resilience of materials to the elements, and long-term maintenance budgets.

And, ultimately asks the question. “Who’s responsibility is safe design?”

 

Do you know your responsibilities under safe design legislation?

For more information about the principles of safe design, responsibility for safe design, and safe design in practice, contact us.

Consult, Collaborate and Co-ordinate… Was Vanilla Ice a WHS prodigy?

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For Designers, a key element of ensuring you discharge your WHS obligations as beautifully as you pulled that building/ widget/ process/ walkway or public space together, is implementing a Safety in Design process that works for you. Though some tend to think of WHS and design as a sometimes difficult marriage between your ideas and someone else’s list of do’s and dont’s (expression and restriction), your safe design obligations now go well beyond ticking off a list of boxes and pronouncing your schematic nuptials safe.

 You don’t know what you don’t know

No matter the size of your practice or the relative risk level of what you’re creating, the basic nature of you assessing against a list or your own imaginings of what could conceivably go wrong are no longer a sufficient basis on which to demonstrate management of safety risks. Any “how could I know” (and therefore be responsible for the myriad possible outcomes) argument has been irreversibly stripped of its powers of protection in a regulatory environment that acknowledges a fundamental truth – ‘you don’t know what you don’t know’.   You’re not expected to predict or know everything, but you are expected to demonstrate you’ve consulted, collaborated and co-ordinated with others who may know, across a range of skill sets, experience and disciplines. For example, you’ve designed plenty of small shopping centres… but did you ever physically demolish one? Little hard to design out end of life hazards when the only demolishing you’re experienced with involves a dessert.

So where does Vanilla Ice come into this?

Remember when he asked us to “Stop, collaborate and listen” …? I, for one, didn’t know that I didn’t know Vanilla was a sage and predicted the outcome of  a recent court case , which became the first significant test for the new WHS Act in an Australian Court. The case highlights an example of the model WHS Act’s obligation for organisations to ‘consult , collaborate and co-ordinate’ in order to reasonably predict and manage safety risks.  It also shows regulators are willing to pursue organisations that don’t do this effectively.

So –  how do you do this effectively?

One of the biggest challenges for any designer is working out when, how, and to what extend you need to ‘consult , collaborate and co-ordinate‘ with others. In our experience, the key move in weaving Safe Design into the very fabric of your design process is to talk to the right people early, as it’s one of the most critical steps in identifying and eliminating safety hazards in the design process. How you do this has no cookie cutter answer – each practice or organisation needs to tailor a Safe Design system to its particular situation and output requirements. Similarly, the extent to which you need to go to ensure you can demonstrate you’ve followed a Safe Design process in the course of your work is unique to your industry, its hazard potentialities and your organisations exposure.

Find out what you need to know

To what extent does a Designer need to make like a 90’s rapper and consult , collaborate and co-ordinate’ ? While avoiding the Courts big stick is desirable, the well established fact that good planning = cost savings should be at the forefront in a Designer’s mind.  Be it practitioners in Australia or New Zealand or international organisations our experienced team can advise and assist. Get in contact with us to flesh out how to know what you need to know!