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Don't let the law hijack risk management

The millennium bridge at Bankside, the fuel crisis and now the rail crisis are to a greater or lesser degree about civil engineering and the management of risk. In the case of the fuel crisis, the issue was more peripheral, with the events largely outside the profession's concern. But the consequences highlighted the fragile nature of our infrastructure when our just-in-time economy is threatened. The political logic for letting the matter run was, in hindsight, well justified, but the practical sense of not running the 'blockades' appeared to be based on the concept of it being an unjustifiable risk to public safety and corporate liability.

Likewise, the closure of the Bankside bridge was not necessarily about the public interest, but the legal risks run by all concerned if it were allowed it to remain open.

With the railways, this pattern repeats on a national scale, with the whole system, as Sir Alastair Morton described recently at the ICE, 'suffering a nervous breakdown' as a result of the lawyers' interpretation of potential liability that Railtrack was carrying.

Each event is, one can imagine, the result of quite finely balanced arguments within the board of each of the organisations involved. Here, I could see client representatives, lawyers and engineers around a table.

One can imagine the engineer's comments, that there is no such thing as an absolutely safe solution. In their minds the probability of an acceptable risk has to be set in the wider context so that the risk is, in legal terms 'as low as reasonably possible'.

The lawyers, for their part, will present the risk relating to the client's own exposure, both in terms of cost and the legal liability. The client may risk the cost, but the legal liability, in today's climate, could result in prosecution.

The risk of criminal conviction drives a client into the lawyer's arms, despite all protestation by the engineer.

The bridge stays closed, the railways are reduced to a crawl and the gates of the refinery stayed locked until a political solution was brokered.

The cost to the economy must be enormous. The common theme to each of these events has been the avoidance of risk, which in the case of Railtrack, as Alastair Morton put it, was 'exported to the train operators' by an imposition of network-wide speed restrictions.

Here, clearly, the management of risk, which is fundamental to engineering, plays no part when the engineer's arguments are set alongside the lawyers' option of passing it on to others.

However, managing risk means balancing the corrective costs against the potential losses, which means putting a value on life. In today's society, this concept exists behind closed doors but is not open to legal scrutiny and public debate.

The problem for independent businesses is that unless engineers can persuade government and the law-makers to develop a legal framework with a more realistic attitude to risk, businesses, and consequently our lives, will be determined on the basis of the law's sterile approach.

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