A.  For a prosecution under the WHS Act, negligence is not necessary. The test is whether the designer did everything reasonably practicable to ensure that the structure is safe and without risks to health and safety. Under the WHS Act, there doesn’t need to be an incident for a breach of legislation – it is enough that there is a risk to health and safety, although in practice, most prosecutions arise after an incident. The penalty isn’t determined by the harm caused, but rather the risk of harm, and the penalty is based on the harm that could have occurred, e.g. a faulty design results in person breaking an arm, or if a design flaw could have caused the person’s death.

A.  For the WHS Act, it depends on whether it was something the designer should have foreseen. A blanket systematic process, while a good start, will usually not be enough – the designer should always look at each design individually and try to think of all of the foreseeable risks for that design. Consultation is also essential in identifying risks.

A.  The PCBU client also has a duty in relation to ensure safety and to consult with the designer. The designer should point this out to the client and it will hopefully push the client into taking the safe option. Presumably, the designer would not recommend or allow something that is blatantly ‘unsafe’ and the main issue would be about the safest possible option that is reasonably practicable. If the client disregards its own obligations and wants an unsafe option, it would be advisable to include a note on the plans and in the specification that designer strongly recommends x because of y, provide details of the problems with the unsafe option and indicate that the designer does not recommend it (and that the decision was taken over by the client).

A. Any duty which requires a person to ensure the health and safety of another requires the person to:

• eliminate risks to health and safety so far as is reasonably practicable; and

• if elimination is not reasonably practicable, to minimise the risks so far as is reasonably practicable (s17).

What is reasonably practicable is defined as that which is or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

• the likelihood of the hazard or risk occurring;

• the degree of harm that might result from the hazard or risk;

• what the person knows or ought reasonably know about the hazard or risk and the ways of eliminating or minimising it;

• the availability and suitability of ways to eliminate or minimise the hazard or risk;

• after assessing the extent of the risk and the ways of eliminating or minimising it, the cost of doing so, including whether the cost is grossly disproportionate to the risk (s18).

Designers should always consider all of these factors when making recommendations to a client about the design. This is not a question of ‘ultimate responsibility’ as it is possible for the client, designer as well as others, to be prosecuted over the same issue. Also remember that both the client and designer have duty to consult and that the client also has duties under the legislation, so hopefully, the client will have the same safety mindset.

A. If the designer is a company, it would be reasonable to expect that it would be the company that would be prosecuted under the WHS Act. However, officers such as managing directors, designers, and individuals can also be prosecuted in addition to a company. It is also important to remember that individual workers have duties under the WHS Act and can also be prosecuted.

A.  It would be advisable for designers to keep the safe design information for the life of structure. While there is a time limit on WHS prosecutions being commenced, other legal claims are subject to a statute of limitations.