de minimis non curat lex

09/09/2015 — Leave a comment

Lady Justice (Image source: Jongleur CC-BY-SA-3.0)

Or how I learned to stop worrying about trifles and love the Act

One of the Achilles heels of the current Australian WH&S legislation is that it provides no clear point at which you should stop caring about potential harm. While there are reasons for this, it does mean that we can end up with some theatre of the absurd moments where someone seriously proposes paper cuts as a risk of concern.

The traditional response to such claims of risk is to point out that actually the law rarely concerns itself with such trifles. Or more pragmatically, as you are highly unlikely to be prosecuted over a paper cut it’s not worth worrying about.

All that notwithstanding there still remains the question of how to answer an reductio ad absurdum criticism of the act. Putting it simply, when can you reasonably stop caring about some putative hazard? There’s no answer in the act or legislation so I guess it’s down to us to figure it out. To that end here’s three key indicators that I use to establish whether a hazard is not worth worrying about, e.g. patently ridiculous (1):

  1. Lack of a credible source. Is the hazard source patently ridiculous? An example, unfortunately drawn from life, of such a source is of ‘crushing death or severe injury in a compactus filing system’, even though the compactus was manually operated. In this case the patent ridiculousness comes from the lack of a hazard source that could generate an outcome of that severity. On the other hand crushing a finger is probably within the bounds of possibility.
  2. Lack of a significant loss outcome. Is the severity of the outcome so trifling that one would patently not care? The classic example of this is those perennial favourite examples of the WHS course, the paper-cut or office stapler injury. At the end of the day such small slights and hurts are an inherent part of everyday existence. In this case the ridiculousness comes from worrying about an outcome for which no reasonable loss value can be assigned.
  3. Lack of defensible causal mechanisms. Is the possibility of the outcome predicated upon a chain of independent and diverse set of events and circumstance so arcane that they are patently impossible to occur as required? These are the much beloved ‘Hollywood scenarios’ that again are regularly trotted out in hazard workshops. In this case the patent ridiculousness comes from the lack of a credible mechanism that might translate a hazard source into an outcome (2). 

A general phrophlaxis to such ridiculous hazards is the use of the Source, Mechanism, Outcome (S/M/O) template of accident causation, and yes I mean you Comcare Virtual Office. This template forces the proposer of a hazard to at least canvas the minimum necessary conditions for a hazard source to result in an accident (3). If a reasonable S/M/O tuple cannot be generated then exposure to a hazard has not been demonstrated.

Notes

1. The idea of patent ridiculousness is the reverse to the concept of ‘patent danger’ (Campo vs Schofield). Note that the presumption of patent ridiculousness should be established by demonstrating that the proposed hazard cannot be defended against at least one or more of the criteria identified above in a forum of subject matter experts. Having done so I’d also recommend documenting that retirement to avoid the return of the issue in zombie like fashion at workshop. 🙂

2. See also Borel’s law for the probabilistic version of this, with some caveats.

3.  Most people are actually not very good at logically reasoning about causation as it turns out, which is why the S/M/O template was developed in the first place.

References

Campo vs Schofield, 301 N.Y. 468, 95 N.E.2d 802, 1950.

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