Prime Mover Magazine

Injury rate data pointless according to Wayland Legal Director

Book author and lawyer, Greg Smith, warns of committing resources into systems of safety management that increase rather than nullify legal risks and threaten, rather than improve actual safety outcomes.

Smith's book Contractor Safety Management was bestowed with the 2014 Educational Award from the World Safety Organisation and in this exclusive interview conducted at the 2019 ALC/ATA Safety Summit he speaks about Chain of Responsibility legislation, the burden of overarching administrative practices and the misnomer of some injury rate data with the understanding that his comments are general in nature and not to be construed as legal advice.

PM: You use the term ‘safety paradox’. How is it that safety administration can be a threat to safety rather than a solution?
GS: The great majority of what we do in the name of health and safety is about the collection of evidence based on activity and has nothing to do with safety. Most reports are merely a measure of activity and I would suggest tell absolutely nothing about whether the health and safety of the business is being adequately managed. In the case law that I’ve worked on for the last thirty-odd years there is not one example where a company has presented their monthly health and safety report as evidence that their systems are safe. When we look at a large number of safety initiatives, not only do they not create a safety benefit, but in many cases they actively undermine the things we want to achieve in health and safety.

PM: The amendments to the Chain of Responsibility legislation in October last year have put more focus on contracts. Should transport operators be concerned?
GS: The relationship between legal risk management and safety risk management translates into a lot of what we do in the name of health and safety in the contractor area and can actually increase our legal risk. You have a lot of well-intentioned amateurs trying to tell experts how to do their job and when they do what you tell them, it means you have just taken control. If an electrician comes to your home, you show him where the fuse box is and then leave him to do their thing, yet in the workplace, all of a sudden, we become the experts in what contractors should do.

PM: Can you comment on the current trend towards multiple compliance regimes and audits?
GS: My great fear for the health and safety management industry is that we are being exposed to more pressure to create more nonsense supposedly in the name of legal defence but I think that direction is going to make workplaces less safe. You have to weigh up what is the actual safety benefit because a lot of what we do in the name of health and safety management does (a) absolutely nothing to improve safety outcomes and (b) despite your best intentions with the mountains of checks you are developing, it does absolutely nothing to mitigate legal risk. In fact, often, you are actually increasing it. The only people who read most of your policies and procedures are lawyers and regulators after accidents. I think there is a significant body of evidence which tells us that the way we approach safety management at the moment actually makes workplaces less safe because what we are doing distracts the organisation away from the true risks.

PM: What about the basics such as pre-trip checks?
GS: We should get rid of the zero harm logos off our shirts and put ‘tick and flick’ on there instead. ‘Tick and flick’ positively undermines safety because it disengages the people who are doing the job and it creates an illusion of safety. Check lists have very little evidentiary value other than to show you that you weren’t doing what you’d said you’d do.

PM: Do ‘lost time due to injury’ rates provide a valid metric?
GS: Almost every major accident enquiry that I’ve dealt with over the past 30 years has said words to the effect that injury rate data is just pointless. At least two major enquiries have said that reliance on injury rate data distracted the organisation from the critical risks in the business and was a causal factor in the incident which was being investigated. And yet it is still the primary measure. It’s just nonsense that doesn’t tell us anything about anything that matters. Find me a single case or enquiry where the defence has said ‘here is our injury rate for the last four years and that is evidence that we have a safe system of work’.

PM: Is there any value in how the changes to CoR have ushered in additional compliance burdens for many transport operators?
GS: For too long the safety tail has wagged the dog around commercial arrangements and it results in a really bad disconnect. It would be better if on a case by case basis you enter into your commercial arrangements first, understand how you want to manage your contract and how you want this thing to physically work, and then all the health and safety person needs to say is if that is the way in which you want the contract to operate these are the safety consequences of operating that way.

PM: Do you have any final thoughts?
GS: If I could just leave you with one thought, it is the safety paradox methodology. Look at what you are doing for safety. Is it achieving the outcomes you want or is it undermining the outcomes you want to achieve?

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