Safety in design FAQs

Why do I have to prepare a safe design report?

As part of meeting your obligations under the nationally harmonised WHS legislation (applicable to the Commonwealth, New South Wales, Queensland, Northern Territory, Australian Capital Territory, South Australia and Tasmania) you are required to prepare a safety report and issue this to the client where the client is a Person Conducting a Business or Undertaking (PCBU). The aim of this report is to help prevent possible future injuries or death by identifying, assessing and eliminating hazards or potential risks at the design stage. You have a legal obligation to do this under the legislation, specifically regulation 295 of the WHS Regulation 2011. You also have an obligation under section 22 of the WHS Act to provide information on how you have designed the structure to be without risk to health and safety during construction, maintenance, use and demolition to anyone who is issued with a copy of the design. This information can be incorporated into the safe design report required under the WHS Regulation.

Why is the WHS legislation targeting designers?

National and international research indicates that design is implicated as a major causation factor in fatalities, diseases and injuries to construction workers, maintenance workers, end users and the public (Breslin, 2009). Designers are considered ‘upstream duty holders’ and as such their decisions can greatly affect the health and safety of people who use their designs downstream in the lifecycle of these structures. Early consideration of safety at the design stage is one of the most effective ways of eliminating or reducing hazards and risks.

Who receives my safe design report and information?

The WHS Regulation 2011 (regulation 295) requires the designer to provide a safety report to the PCBU who commissions the work (eg Client). In addition to this, section 22(4) of the Act states that anyone who receives a copy of your design should also receive your safe design information. Under this section, we advise that you would be required to issue your safe design report with your plans to persons such as the client, certifier or council and the builder. This has been confirmed by Safe Work Australia and Work Health and Safety Queensland.

When should I issue safe design information for my design?

Under the WHS Act, the safe design information must be issued to anybody who is issued with a copy of the design. At a minimum, we would recommend issuing this information at the town planning/development application stage, again at the construction documentation stage, at the tender stage and with the final design. The designer must also provide this information on request.

Does the safe design legislation apply to residential projects?

Yes. The WHS legislation applies to residential projects to the extent that at some stages in their lifecycle residences are workplaces such as during construction, maintenance or repair by workers, or demolition at end of life. If the residence contains a workplace such as an office or workshop, or the owner employs staff that will be working at the residence, additional considerations would apply relating to the use of that workplace for that purpose. Other examples of residential projects that are a workplace during their use include aged care or managed apartments.

Do I need to include all potential hazards in my safety report?

Only those hazards in the control of the designer, and that are not adequately covered by a recognised standard (i.e. Australian Standard, Code of practice, National Construction Code (NCC) or other guideline), need to be included in the risk assessment process. Designers can identify the standards they apply to manage risks where possible (e.g. in reference list or list of recognised standards). Any residual risks from the design stage to be managed by those further down the lifecycle of the structure should also be detailed. See Safe Design Australia’s eBook on Safe design in practice – Section 2: Risk Management for further information.

If someone asks for safe design information on a structure that I have designed in the past do I have to provide this?

Yes. There is a specific requirement under s22(5) of the WHS Act to provide current relevant information, on request, on how the designer has designed the structure to be without risk to health and safety to persons carrying out any activity relating to the construction, use, operation, maintenance, manufacture, demolition or disposal of that structure.

Do I have to prepare my own safe design reports or can I engage a consultant?

Designers can seek the advice of experts to assist them in discharging their duties and to prepare their safe design reports and risk assessments. It is important to ensure that you are receiving good advice and that the WHS consultant that is engaged has experience in the types of structures being assessed and holds professional indemnity insurance. It is important to note that designers cannot transfer their duties to another person and will remain the duty holder and must design the structure to be without risk to health and safety as far as is reasonably practicable.

Is there a budget limitation or project size to which the legislation applies?

No. The duties under s22 of the WHS Act apply to the design of all structures that could reasonably be expected to be used as a workplace at any stage in their lifecycle, regardless of size or budget.

Does the designer’s information need to be provided in writing?

Yes. There are specific circumstances where a written safety report is a requirement (WHS Regulation reg.295). Under the WHS Act the designer must provide information on safe design through the lifecycle of a workplace to anyone who is issued with the design in order to give effect to it. The Code of Practice: Safe Design of Structures (2018) states that the information required under the WHS Act can be incorporated into the safe design report that is required under the regulation. In addition to this requirement, information can be provided by other means – for example, meetings, notes on plans or in a work health and safety file. This information will then be clearly available to people using that structure as, or at, a workplace during later phases in its lifecycle.

If the designer is undertaking contract administration, do the designer’s duties still apply?

If the designer is still under contract and is in a position to influence the design during the construction stage, their duties would extend to this stage. They must also provide information on request regarding the safety of that design to people constructing the structure during this period.

Legal questions and answers

Legally does there need to be a direct link to negligence on the part of the designer causing the injury in order to prosecute?

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, eg a faulty design results in a person breaking an arm, or if a design flaw could have caused the person’s death.

What happens if a designer has followed a systematic process and just misses something?

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.

If you specify a safe material and the client overrides you (eg changes non-slip tile to slippery porcelain tiles) to what extent are you responsible? Have you discharged your duties by making them aware of this risk?

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 persuade 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 the 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).

Client versus designer – who is ultimately responsible for the safety of the design (given the designer has done all they can to persuade the client to choose the safety features)?

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 (WHS Act Part 2 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 (WHS Act Part 2 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 a duty to consult and that the client also has duties under the legislation, so hopefully, the client will have the same safety mindset.

Who is responsible if a designer works for a company?

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.

How long do designers need to keep information?

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

References

• Breslin, P. 2013, Presentation: ‘Focus on leading edge concepts of safer by design’
• Safe Work Australia, 2019, model Work Health and Safety (WHS) Act
• Safe Work Australia, 2012, Code of Practice: Safe design of structures, Canberra:
• Safe Work Australia
• Worksafe Victoria, 2008, Designing safer buildings and structures, Melbourne: Victorian Government

This information was kindly prepared by Safe Design Australia.

Further resources

Work Health & Safety Policies and Procedures Manual located on the Institute's HR Hub, covers relevant areas in responsiveness to and prevention of potentially hazardous exposure, including a Hazardous Substances Policy, Incident Notification Policy, Hazardous Substances Register and Incident Reporting Flow-Chart.