Safety Argument: Safe Design at Project Completion

Abstract

The interface between design clarification via Requests for Information (RFIs) and the updating of design documentation, often through Red Line Mark-Ups (RLMUs), presents a critical control point in construction projects. This article examines who is best positioned to control the interpretation of RFI responses for translation into revised drawings to ensure design integrity and safety, particularly under Victoria's Occupational Health and Safety Act 2004. It argues that the Designer, as a primary duty holder for design safety, must retain ultimate control and responsibility for this interpretation.

1. Introduction

In complex construction projects, design evolution during the construction phase is common. Requests for Information (RFIs) serve as a formal mechanism for the construction team to seek clarification or propose modifications, and for the Designer to provide authoritative responses. Construction teams often use Red Line Mark-Ups (RLMUs) on existing drawings, referencing RFI IDs, to indicate areas potentially requiring revision. This practice, while intended for efficiency, can introduce ambiguity if the responsibility for accurately translating RFI responses into specific drawing changes is not clearly assigned and managed. The core issue is determining which party is best placed to control this interpretation to mitigate risks, especially those pertaining to safety under Victorian OHS law.

2. The “Best Party with Control” Principle

The concept of the “person with control” is central to Work Health and Safety (WHS) / Occupational Health and Safety (OHS) frameworks, including those administered by SafeWork Victoria. The principle dictates that the party with the most significant ability to influence and manage risks associated with a particular work activity or element holds the primary responsibility for ensuring safety.

Control and Responsibility
Under OHS law, responsibility for safety aligns with control. The party best able to control a risk is responsible for managing it. In design matters, this inherently points to the Designer due to their specialist knowledge and authority over the design itself.

When applied to the interpretation of RFI responses and their impact on design drawings, the Designer demonstrably has the most comprehensive control and understanding.

3. Designer's Role and OHS Duties in Victoria

The Designer of a structure (which includes assets constructed from designs) has specific, non-delegable duties under Victoria's Occupational Health and Safety Act 2004 (OHS Act).

Designer's Duty: OHS Act 2004 (Vic)
Section 28(1) of the Occupational Health and Safety Act 2004 (Vic) mandates that a person who designs a building or structure (or part of one) that is to be used, or could reasonably be expected to be used, as a workplace must ensure, so far as is reasonably practicable, that it is designed to be safe and without risks to the health of persons using it as a workplace for a purpose for which it was designed.

This duty encompasses:

Understanding Design Intent: Only the Designer fully understands the original design rationale, the interplay between different design elements, and the implications of any change.
Holistic Impact Assessment: An RFI response, while addressing a specific query, may have wider implications for the design that only the Designer can fully assess (e.g., structural integrity, system compatibility, fire safety, egress, ongoing maintenance access).
Information Provision: Section 28(2) of the OHS Act (Vic) requires the designer to carry out, or arrange for the carrying out, of such testing and examination and to give adequate information to each person who is provided with the design concerning its safe use and any conditions necessary to ensure safety. Accurate as-built drawings, reflecting RFI-driven changes, are a critical part of this information.

Misinterpreting an RFI response when updating drawings can lead to a design that no longer meets safety requirements, directly contravening the Designer's statutory duty.

4. Constructor's Role and RLMUs

The construction team's primary role is to build according to the design. Their RLMUs, cross-referencing RFIs, are valuable for:

Locating Issues: Indicating the physical location on a drawing relevant to an RFI.
Signalling Change: Highlighting that an RFI has affected a particular area.

However, the constructor is not the design authority. While they execute the work and understand site conditions, their interpretation of how an RFI response translates into detailed drawing changes may lack the designer's holistic perspective and understanding of design safety factors.

RLMUs as Input
RLMUs from the construction team should be treated as valuable input to the Designer, identifying areas of change and site-based observations, but not as the definitive instruction for how design documentation should be revised.

5. Risk of Misinterpretation and Safety

The primary risk lies in the gap between an RFI response and its accurate incorporation into design documentation. If the party interpreting the RFI lacks full design context or authority, errors can propagate into the as-built condition, potentially creating latent safety hazards for construction, operation, maintenance, or eventual demolition.

Consider an RFI about relocating a piece of equipment. The Designer's response would consider:

Structural implications of the new location.
Impact on clearance, access for use and maintenance, and emergency egress.
Effects on connected services (electrical, mechanical, hydraulic).
Compliance with relevant building codes, Australian Standards, and specific Victorian regulations for the new configuration.

A constructor's RLMU might accurately show the new location but may not capture all necessary conforming changes to surrounding elements or notes that the Designer's holistic review would identify.

General OHS Duties: OHS Act 2004 (Vic)
Sections 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) impose duties on employers and self-employed persons to ensure, so far as is reasonably practicable, that persons (employees and others) are not exposed to risks to their health or safety arising from the conduct of their undertaking.

For the Designer, fulfilling their duties means ensuring the design information, including RFI-driven updates, is accurate and safe. For the Constructor, it involves building to the authorised design and raising concerns via RFIs.

6. Legal Duty and Control Alignment

The Victorian OHS framework strongly supports assigning control of RFI interpretation to the Designer:

Designer's Specific Duty: The Designer's duty under Section 28 of the OHS Act (Vic) is specific and direct. While drafting tasks can be performed by others (e.g., drafters), the responsibility for the design's safety, including the accuracy of how RFIs are interpreted into revisions, remains with the Designer.
Reasonably Practicable Steps: The Designer must take all reasonably practicable steps to ensure a safe design. This includes robust processes for verifying that RFI responses are correctly translated into design documentation by their team or those they direct.
Consultation Duty: Section 35 of the OHS Act (Vic) requires employers to consult with employees. While not directly analogous to the model WHS Act's duty holder consultation, the principle of communication and shared understanding of risk is paramount. Clear RFI processes contribute to this. More broadly, general duties imply effective communication between parties managing interrelated risks.

Designer's Verification is Key
Irrespective of the quality or detail of RLMUs provided by the construction team, the Designer must conduct their own verification to ensure the RFI response is accurately and safely reflected in the revised drawings. This is a non-negotiable step tied to their OHS duty under Victorian law.

Outsourcing the initial interpretation to the construction team (e.g., by asking them to detail all drawing changes on RLMUs) without rigorous Designer verification effectively attempts to shift a core design responsibility. While it might appear to save costs in bridging a "drafter gap," it significantly increases safety and liability risks for the Designer if errors occur. The Designer remains accountable.

7. Conclusion: Upholding Design Integrity

For ensuring safety in design and meeting statutory obligations under Victoria's Occupational Health and Safety Act 2004, the Designer is unequivocally the best party to control the interpretation of RFI responses and their translation into revised design documentation. Their expertise, holistic understanding of the design, and direct legal responsibility for design safety make their oversight indispensable.

While construction team RLMUs provide valuable contextual information, they cannot replace the Designer's authoritative interpretation and verification. Project stakeholders, including clients and system integrators, should structure processes and contracts to reinforce the Designer's control in this critical area, recognising it as fundamental to risk management and the delivery of a safe asset, while ensuring support in exchange of critical information. The focus should be on clear communication and defined roles, with the Designer maintaining final authority over design representation.

It is "reasonably practicable" for the constructor to record direct physical facts on RLMUs related to RFI implementation. It is not reasonably practicable (nor their primary expertise or responsibility) for them to undertake comprehensive design interpretation for drafting purposes, which carries risks if done incorrectly. The RLMU should state: "For full details, see RFI ID response and associated site records (e.g., Photo Log ID, Survey Report ID, ITP/ITC ID)." This level of detail focuses on reporting factual physical changes, not interpreting their broader design implications. For the constructor, providing RLMUs that locate the RFI, reference it, annotate direct factual changes, and link to detailed records is a reasonably practicable way to inform the designer. Going further into interpreting design implications for all drawing elements is likely beyond what's reasonably practicable for their role and expertise.

For the Designer, it is their core duty and reasonably practicable to take this information, apply their design expertise, verify, and produce accurate as-built drawings. Relying solely on the constructor for detailed interpretation for drafting would not be meeting their SFAIRP obligations for safe design.

Disclaimer

This article provides general insights and should not be taken as specific legal advice. Parties should consult with legal professionals for advice tailored to their specific circumstances and contracts, and refer to the Occupational Health and Safety Act 2004 (Vic) and associated regulations.

References

Occupational Health and Safety Act 2004 (Vic).
SafeWork Victoria, various guidance materials on safe design.