Objective Due Diligence To outline the concept of due diligence engineering particularly as it applies to Engineering engineering design. Townsville Richard Robinson Regional Group 17th March 2015 The Plan 1. What is due diligence? 2. How did the concept arise? 3. What is due diligence engineering? 4. How is it applied in design? Curragh Boom Drop
Due Diligence The ‘Reasonable Person’ The reasonable person is not any particular person or an average Due diligence is a legal concept. It represents an aspect person… The reasonable person looks before he leaps, never pets a of moral philosophy, that is, how the world ought to be and strange dog, waits for the airplane to come to a complete stop at the how humanity should behave in order to bring this about. gate before unbuckling his seatbelt, and otherwise engages in the type of cautious conduct that annoys the rest of us… “This excellent but odious character stands like a monument in our courts of justice, vainly It is forensically tested by our courts with the advantage of appealing to his fellow citizens to order their lives after his own hindsight, for example, using the ‘reasonable person’ test. example.” J M Feinman (2010). Law 101. Everything You Need to Know About American Law. Oxford University Press. Page 159. Due diligence is about the Due Diligence management of downside risk Conceptually, due diligence appears as a manifestation of the ethic of reciprocity or the golden rule, historically prevalent in major philosophies and religions, along the lines that one should treat others as you would like to be treated by them. safety business project
Due Diligence Due Diligence Origins Due diligence (legally) seems to manifest itself in at least two ways: 1. As a defence against negligence in common (case) law, and How did the concept of due diligence legally arise? 2. In statute law, especially for fiduciary concerns, environmental issues, and most recently, health & safety matters. The Common Law HEADING GOES HERE According to (Sir) Tony Robinson (aka Baldric): Use this slide for a main topic with yellow accents for important points The common law particularly flows from King Henry II (circa 1266) and a desire to extend the influence of the King’s justice by sending Lord Judges on circuits, consistently applying the ‘common’ laws observed in the various feudal fiefdoms, thereby superseding the justice systems of the local aristocracy and enhancing the power of the king.
Negligence M'ALISTER or DONOGHUE (Pauper) Appellant v. STEVENSON. Respondent Donoghue v. ------------- The case that launched the negligence tide is generally recognised as Stevenson Lords Present (1932) Donaghue vs Stevenson (1932). Essentially this tested the responsibility of a drinks manufacturer for a stomach ache resulting Lord Buckmaster from a late discovered decomposed snail in an opaque soft drink Lord Atkin bottle, purchased by one of two friends to share. Until that time, the Lord Tomlin liability for a bad product rested with the contractual arrangement Lord Thankerton between the seller and buyer, not a third party friend with whom the Lord Macmillan drink was shared and who fell ill. Judgment See http://www.bailii.org/uk/cases/UKHL/1932/100.html viewed 17 July 2013 See http://www.bailii.org/uk/cases/UKHL/1932/100.html viewed 17 July 2013 Due Diligence Due Diligence Interestingly, it was a split decision by the 5 judges in the UK House of The majority decision favoured to adopt the golden rule of Lords as to whether or not the case could proceed at all since the most major philosophies and religions. This is usually potential liability to the manufacturer lay outside the existing buyer- expressed in the Christian tradition, as: do unto others as you seller contract. would have done unto you (the principle of reciprocity). That is, it was felt that the soft drink manufacturer owed a duty of The minority was concerned that a finding for the plaintiff would launch care to any reasonably foreseeable consumer, not just the one an uncontrolled avalanche of negligence claims in common law who purchased the soft drink. jurisdictions, a concern that has pretty much eventuated.
Lord Atkin Negligence The rule that you are to love your neighbour becomes in law An action in tort law, the elements of which are: the existence of you must not injure your neighbour; and the lawyer's question a duty of care; breach of that duty; and reasonably foreseeable "Who is my neighbour?" receives a restricted reply. You must damage as a consequence of the breach of duty.... take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Whether the defendant has breached this duty of care is Who then in law is my neighbour? The answer seems to be determined by considering the standard of care a reasonable person would have exercised in the circumstances, including persons who are so closely and directly affected by my act that I taking reasonable precautions to avoid the risk of harm.... ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions The type of damage, not its extent, must be foreseeable. which are called in question. LexisNexis Concise Australian Legal Dictionary (4th Edition) Due diligence - a common law Due Diligence in Legislation defence against negligence Some examples: Where it is possible to guard against a foreseeable risk, Commonwealth Corporations Act (2001) which, though perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means, which Model Work Health and Safety Act/s (2011) involves little difficulty or expense, the failure to adopt Rail Safety National Law Act/s (2012) such means will in general be negligent. NSW Protection of the Environment Act (1997) Chief Justice Sir Harry Gibbs. Turner v. The State of South Australia (1982) (High Court of Australia before Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ).
NSW Protection of the Environment Model WHS Act/s Act 1997 27 Duty of officers 118 General defence for tier 1 offences It is a defence in any proceedings against a person for an (1) If a person conducting a business or undertaking has a duty or offence under this Part if the person establishes: obligation under this Act, an officer of the person conducting the (a) that the commission of the offence was due to causes over business or undertaking must exercise due diligence to ensure which the person had no control, and that the person conducting the business or undertaking complies (b) that the person took reasonable precautions and exercised with that duty or obligation. due diligence to prevent the commission of the offence. Due Diligence Engineering is all about Due Diligence Engineering aligning the laws of man and nature Societal objectives Due diligence engineering is the reverse To be prosperous, safe, efficient, sustainable and happy engineering of the decisions of our courts. That is, discovering the technological principles of court The laws of nature Physical reality decisions through analysis of their structure, logic (scientists) Don't harm neighbours, either and argument. deliberately or inadvertently Due diligence (engineers) Legal prescriptions This can be problematic for new legislation for which no test cases are apparent Acts of parliament and the The laws of man as, in such circumstances, convergent, pre-event legal opinion is unavailable. common law (lawyers)
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