[SystemSafety] Third White Paper

[Peter Bernard Ladkin]

On 3/14/13 10:59 AM, SPRIGGS, John J wrote:
> I am told that the situation is different in other jurisdictions, where 61508 is acknowledged as a
> “basic safety standard”.  If I understood correctly, in the case of an accident, the (allegedly)
> responsible party would always be asked in court for evidence of their applying the “basic safety
> standard”, or if they have used another standard, a statement of equivalence of what they used to
> the “basic safety standard”.
>
> Is this indeed the case?

Things aren't as simple in Germany as to allow that question a straightforward answer.

First, process. I am continually surprised at how simple and reasonable the UK system appears to be. 
The HSE is the organisation to determine and prosecute criminal complaints about engineering safety. 
So the decision about whether criminal-legal proceedings are appropriate is made amongst other 
things by specialists.

If you are prosecuted in Germany for anything, it will be the local district prosecutor (equivalent 
to a US district attorney) who will decide to do so. They usually decide to do so on the basis of 
prescriptive law, and no standards are legally prescriptive in this sense. It goes without saying 
that local district prosecutors have generally no idea about engineering; they will have studied law 
as students, and gone on and up in purely legal circles. The main point of any investigation is to 
try to find out if some specific person has broken a law.

Second, standards and the law. Most branches of critical industry in Germany, such as powergen and 
public transport, are subject to oversight by government regulators, and procedures to be followed 
are not necessarily based on standards, which are regarded as providing the "state of the art", but 
rather on laws, some of which may incorporate the concepts of those standards, but others of which 
may not. The task of a regulator is largely to formulate, implement and enforce law governing the 
industry it regulates; these tasks are also set in law. Laws of course are passed by the parliament
(Bundestag + Bundesrat) although individual states (Bundesländer) may also have their own laws 
passed by state parliament (Landestag).

I heard a talk in Braunschweig last November from the head of a German standards commission on 
stationary turbine machinery (powergen), who said that the concepts of IEC 61511, which by European 
law defines best safety practice in the process industries, including powergen, and those of the 
applicable German administrative law were not obviously compatible and they had a big effort 
underway to attempt to render them so.

Third, the distinction between civil and criminal law. In civil cases, largely tort law where 
someone is claiming compensation, any argument may be made, of course, and there is no a priori rule 
about which set of principles prevails. If it is disputes about broken kit, even safety-critical 
kit, then it can well end up before a court of arbitration convened by the International Chamber of 
Commerce in Brussels. The judges are experienced lawyers (British ones will be QCs, for example) 
from different countries and I believe they sit in a panel of three. If people have been hurt or 
injured, then I don't know that there is any rule. People engage in "forum shopping" for the best 
country in which to bring a compensation claim, and courts can rule themselves "forum non 
conveniens" if they don't think they are the right place to exercise jurisdiction.

PBL

Prof. Peter Bernard Ladkin, Faculty of Technology, University of Bielefeld, 33594 Bielefeld, Germany
Tel+msg +49 (0)521 880 7319  www.rvs.uni-bielefeld.de