understanding the legal responsibilities of rail organisations and individuals regarding safety

FINANCIAL INSTITUTIONSENERGYINFRASTRUCTURE, MINING AND COMMODITIESTRANSPORTTECHNOLOGY AND INNOVATIONPHARMACEUTICALS AND LIFE SCIENCES

Understanding the legal responsibilities of rail organisations and individuals regarding safety

Michael Tooma

Partner and Head of Occupational Health Safety and Security, Asia Pacific Norton Rose Australia29 March 2012

Rail Safety 2012Rail Safety 2012

Agenda

Rail safety duties

Designers, commissioners, manufacturers,

suppliers and installers

Rail Transport Operator

Rail safety worker

• Ensure SFAIRP that the thing is safe if it is used for the purpose it was designed

• Must ensure SFAIRP the safety of the railway operations

• Take reasonable care with respect to their health and safety and the health and safety of others

• Cooperate with rail transport operator

3

Rail infrastructure

managerand/or

Rolling stock operator

Railway operations

The construction of a railway,

railway tracks, associated track structures and rolling stock

Management, commissioning, maintenance,

repair, modification, installation,

operation, or decommissioning

of railway infrastructure

Commissioning, maintenance,

repair, modification, or

decommissioning of rolling stock

The operation or movement or causing the operation or

movement by any means of rolling

stock or a railway service

The movement or causing of

movement of any rolling stock for the purpose of

operating a railway

4

SFAIRP

Reasonable practicability

Reasonably Practicable

Knowledge about the Risk and Means of mitigating it

Consequences of Risk

Likelihood of Risk

Costs

Availability of means of mitigating the risk

Reasonable practicability

Costs

Availability of means

of mitigating the risk

Knowledge about the

Risk and Means of

mitigating it

Consequences of

Risk

Likelihood of Risk

Not Reasonably Practicable

SFAIR

Are the costs grossly disproportionate to the risk?

What are the costs of implementing these controls?

What is the availability of the means of mitigating the risk?

What is known about the means of mitigating the risk?

What is known about the risk?

What are the consequences of the risk?

What is the likelihood of the risk?

8

9

10

11

Weak links? Implementation of SFAIRP

12

Singleton

•The Australian Rail Track Corporation (ARTC) was convicted and fined $200,000 for a breach of the NSW Rail Safety Act 2002 (predecessor Act to Rail Safety Act 2008) in relation to an incident at Singleton which resulted in the death of two rail workers on 16 July 2007.

ITSR brought the prosecution for failing to:

• Have its safety management system (SMS) audit “call out” work sites and audit associated “call out” worksite protection documentation

• Ensure that its SMS in place on 16 July 2007 complied with the prescribed requirements in respect to its corporate risk register

• Ensure that its employees complied with its SMS by, as a minimum, working as required by the Network Rule ‘No Authority Required’ (or NAR) rule and completing a worksite protection plan prior to work commencing.

ARTC pleaded guilty.

13

Justice Price held:

• ARTC had failed to undertake audits of worksite protection plans for callout work.

– “The nature of callout work, sometimes undertaken at night in hazardous conditions, obliged the defendant to ensure that shortcuts were not taken, safety not compromised and relevant risks identified”

• ARTC was aware of the risks to safety and the failure to have an audit system in place was a “serious breach of its responsibility to provide for the safety of its workforce”.

– “The obvious risk of serious injury or death required [ARTC] to ensure that a worksite protection plan was completed prior to its employees or contractors commencing callout work.”

• five near misses prior to the incident at Singleton alerted ARTC to the “obvious danger” of track workers being struck by a train yet its risk register failed to identify this hazard.

14

Tooma’s Tips

15

16

Who is an officer?

OfficerOfficer

DirectorDirector

SecretarySecretary

makes, or makes, or participates in participates in

making decisions making decisions that affect the that affect the

whole or a whole or a substantial part of substantial part of

the businessthe business

Has the capacity Has the capacity to affect to affect

significantly the significantly the corporationcorporation’’s s

financial financial standingstanding

Shadow directorsShadow directors

Administrator, Administrator, Liquidator, Liquidator, Receiver or Receiver or

receiver managerreceiver manager

Trustee of a Trustee of a compromise or compromise or

other other arrangementarrangement

17

Due Diligence in a nutshell

Due Due DiligenceDiligence

Know

Understand

Resource Monitor

Comply

Verify

Weak links? Leadership

18

Tooma’s Tips

19

About the Presenter

••Michael ToomaMichael Tooma is a Partner at Global law firm Norton Rose Australia where he heads up both Norton Rose’s Asia-Pacific Occupational Health Safety and Security practice and the Australian Government practice.

•He was recognised as one of the leading OHS lawyers in Australia by Best Lawyers 2010 , 2011 and 2012 and is the author of 11 books on OHS law. He is the leading commentator on OHS developments in Australia regularly giving television, print media and radio interviews. Peers call him “a real powerhouse in this area” (Chambers 2012).

•He is an Adjunct Professor at Edith Cowan University in Western Australia.

•He is a key advisor to the rail industry at all levels including RISSB, ARA, rail operators, infrastructure managers, suppliers, contractors and regulators.

Our international practice

22

Disclaimer

The purpose of this presentation is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of [insert name of Norton Rose Group Contracting Party] on the points of law discussed.

No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any constituent part of Norton Rose Group (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this presentation. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of, as the case may be, Norton Rose LLP or Norton Rose Australia or Norton Rose OR LLP or Norton Rose South Africa (incorporated as Deneys Reitz Inc) or of one of their respective affiliates.