Think like the judge

One way of thinking about the validity of your actions as an engineer is to imagine how they would be perceived by the inquiry following a disaster involving your work.  A while ago I used to be a bit apologetic, almost embarrassed, if I suggested this as a reason for making a decision.  It seems to be such a self-interested approach, covering your rear in case it gets kicked very hard by some high-profile enquiry with extensive media coverage.  Surely engineering decisions should be based on sound engineering, not on imagined future public perceptions?

Over time I’ve become more relaxed about this way of thinking, to the extent that I now believe it is not only entirely valid but (in some circumstances) exactly the right way to think.

I’m talking here mainly about engineering decisions that involve an element of judgement such as is ubiquitous in safety management studies.  On the other hand if you are doing a stress calculation to determine the dimensions required to resist a load then thinking about public perception doesn’t apply – there is not much scope for judgement.

When judgement is necessary, if something later goes wrong then that judgement itself will be subject to scrutiny and judged.  That’s when it is right to think like the judge heading the inquiry or Royal Commission into the disaster.

Risk assessments (including pipeline safety management studies) are semi-technical exercises where engineers make judgements about the level of risk that the community considers tolerable.  Emphasis on community.  And after the disaster, who is the official representative of the community?  The presiding judge.  So thinking like the judge is the right approach not because of the backside-covering logic but because the judge (or chief commissioner or whoever) is the manifestation of the community that engineering is trying to serve.

Of course, there is no guarantee that every disaster inquiry will reach conclusions that the technical members of the community think are reasonable.  Two stand-out examples of legal outcomes that seem, umm, unusual were firstly the recommendation of the Queensland Floods Commission of Inquiry (March 2012) that three flood engineers should be investigated by the Crime and Misconduct Commission not for what they did but the way they said they interpreted their (ambiguous) manual, and secondly the very recent 6-year sentences for seven Italian seismologists (October 2012) as a result of their alleged failure to predict an earthquake that caused 309 deaths.

But most inquiries produce thoughtful and sensible results.  (And even for the Queensland flood inquiry I’m picking on only one item in an 18 page list of thoughtful and sensible recommendations.)

I think it is entirely reasonable to think like the judge.

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8 Responses to Think like the judge

  1. Lynndon Harnell says:

    I am of the opinion that you should probably actually think like a witness or even an investigatee (is that a word???). I am not suggesting that it should be an exercise in armour plating the backside, but it is reasonable I believe to frame your decision making logic around the question “How would I justify this decision in a court?”. In other words be sure of your grounds and be able to express it in layman’s terms clearly and logically.

    Having been through one coroner’s court a long time ago (car accident not work related), it is not a lot of fun and you get questions flung at you with perhaps deliberate intent to trip you up (or was I just paraniod?).

  2. petertuft says:

    No problem with that – just a slightly different perspective on the same basic argument. (And just because you’re paranoid doesn’t mean they’re not out to get you …)

  3. Cameron Dinnis says:

    My understanding is that the Italian seismologists weren’t found guilty of not predicting an earthquake. The court decided they were responsible for manslaughter because they provided incomplete and inaccurate information to the public and didn’t communicate their understanding of the risks in a responsible manner. Does that have implications for how Safety Management Studies are documented?

    The other thing to bare in mind with regards to that case is that these weren’t just your normal run-of-the-mill seismologists pulled off their tectonic plates and asked for comment on the recent seismic activity around L’aquila – they were members of the Italian Government’s National Commission for the Forecast and Prevention of Major Risks.

    • petertuft says:

      “Does that have implications for how Safety Management Studies are documented?” That’s something I lose sleep over.

      Because I’m relying on only a few media reports it is quite possible (very likely!) that I don’t have the full story. There was another article in The Conversation on 25 Oct (https://theconversation.edu.au/laquila-charges-leave-earthquake-scientists-on-shaky-ground-10301) which included this quote:

      “Certainly a statement from one member of the group at the time of the L’Aquila quake – Enzo Boschi, then-president of Italy’s National Institute of Geophysics and Volcanology (INGV) in Rome – was both well-balanced and informative: ‘It is unlikely that an earthquake like the one in 1703 [a devastating earthquake that previously hit L’Aquila] could occur in the short-term, but the possibility cannot be totally excluded.'”

      If that’s correct and he still got 6 years jail, and Australian courts took a similar approach, then quite a few of us might be doomed if there is a pipeline disaster here.

      • Simon says:

        Peter, AS2885 figure 2.3.1 asks that with the controls applied is failure still possible for a given threat. Myself and a colleague from NZ queried the meaning of this question as failure is just about always still theoretically possible. Our interpretation of “is failure possible” has lead us to undertake a residual risk assessment on just about every threat considered credible during a SMS.
        We noted several other people at the SMS Facilitators forum commented that if sufficient controls were in place that failure could be considered not possible i.e. no residual risk assessment was required. This was the basis for the “all controls fail” threat i believe.

        I suppose the point i am getting around to is you might be slightly less “doomed” and sleep a little better with a slightly different interpretation of “Is failure possible”. Or maybe figure 2.3.1 should be re-worded to “Is failure still credible”? Your thoughts?

  4. petertuft says:

    In reply to Simon’s comment (rather belatedly – apologies):

    You can do a risk evaluation on everything (which can be quite time consuming) only to find that almost everything ends up with a risk rank of Low or Negligible and hence is tolerable without further mitigation. I’m not sure that that reduces one’s vulnerability to some sort of liability. However I take your point that the wording in Fig 2.3.1 could be refined.

  5. Brian Humphreys says:

    “Repeat what you just said but add “your honour” to the end and tell me if you’re still comfortable with it” This has been a favourite saying of mine for a few years now, said both to myself and to others.

  6. john o'meara says:

    Actually, the judge doesn’t ask witnesses many questions — they come from the barristers, and the judge listens.

    I don’t know if you can adequately prepare for questions from an attacking barrister. You want to be in a position of being able to satisfy the judge (which might be a magistrate, judge or jury) that you acted with due diligence.

    Now, that’s after the loss event has occurred (or else you would not be in court).

    But what should you do in your current project work?

    You must satisfy yourself that you have exercised due diligence. Unless you can do that, you are not likely to satisfy anyone else, should a loss event occur.

    You must satisfy yourself that you have exercised due diligence. This is the essence of the safety case methodology.

    John O’Meara.

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