Safety in Design: The Designer Duty You Take On Without Noticing

Safety in design sounds like a consultant’s concern. The designer draws it, the contractor builds it, and the safety of building it is the contractor’s problem — that is how the industry has traditionally divided the work, and it is not how the law divides it.

Australian work health and safety law places a specific duty on a person who designs a structure to ensure, so far as is reasonably practicable, that it is designed to be without risks to the health and safety of people who construct it, use it, maintain it, and eventually demolish it. The duty attaches to the act of designing, not to a job title.

Which means a civil contractor takes it on more often than they realise: proposing an alternative method, designing temporary works, submitting an alternative tender, changing a detail on site, or taking a design-and-construct package. This guide covers when that happens, what the duty actually requires, and what a proportionate process looks like for a contractor rather than a design office.

The duty, and who it attaches to

The design duty sits alongside the other upstream duties in work health and safety law — those on manufacturers, importers, suppliers and installers of plant and structures. Its structure is worth understanding precisely.

• It applies to a person conducting a business or undertaking that designs a structure that is to be used, or could reasonably be expected to be used, as a workplace.
• “Structure” is broad — it includes things built or erected, whether fixed or moveable, temporary or permanent, and it plainly covers civil infrastructure.
• The duty extends across the life cycle: construction, use, maintenance, repair, alteration, and demolition or dismantling.
• It requires calculations, analysis, testing or examination to be carried out as necessary.
• It requires information to be given to the person the design is provided to, about the purpose of the structure, the results of any testing, and any conditions necessary for it to be used, constructed and maintained safely.
• It is not transferable. Duties under the framework cannot be contracted out of, and more than one person can hold a duty for the same matter concurrently.

That last point is the one contractors most often get wrong. A design consultant holding the design duty does not remove yours if you also design something. The duties are concurrent, and each duty holder must do what is reasonably practicable within their own influence and control.

This guide states no regulation numbers or jurisdiction-specific provisions, because the model framework is enacted separately in each state and territory and the detail differs. Take the operative provisions and the applicable code of practice from your regulator — the same routing as our guide to WHS management plans and SWMS.

When a civil contractor becomes a designer

Situation	How often it happens	Whether anyone notices
Design and construct package	Increasingly common on civil work	Yes — the contract makes it explicit
Temporary works design — shoring, propping, formwork, falsework, platforms, traffic staging	Constantly	Rarely, though this is the clearest case
Alternative tender or non-conforming offer	Whenever you propose a different solution	Sometimes
Value engineering after award	Common	Almost never
Changing a detail on site to suit conditions or availability	Weekly	Almost never
Designing the construction method itself	Every job	Not treated as design at all
Specifying or selecting a proprietary system	Frequently	Rarely

The clearest and least recognised case is temporary works. A shoring arrangement, a working platform, a propping scheme or a traffic staging arrangement is a structure that people will work in, on or around, and designing it engages the duty. That is in addition to the engineering requirement to have it designed by someone competent, which our guide to temporary works and excavation support covers.

The most consequential case is the on-site change. Substituting a component, changing a sequence, altering a detail because the specified item is unavailable — these are design decisions made quickly, by people under production pressure, usually without any record. Most are entirely sensible. The ones that are not are the ones that appear in an investigation.

The whole-of-life question the duty actually asks

The distinctive feature of the design duty is that it looks past construction. A design must be without risks not only to the people who build it, but to those who use, maintain and eventually demolish it.

For civil infrastructure that question is concrete and answerable.

• How will this be maintained? A pit that requires confined space entry to clean, a structure that requires working at height with no anchor points, a valve that can only be reached from a live traffic lane — these are maintenance risks designed in.
• How will it be inspected? Assets that must be inspected periodically need safe access designed into them.
• How will it be cleaned or desilted? Drainage assets are maintained for decades by people who were not consulted about the design.
• How will it be replaced? A buried asset with no access, or a component that cannot be removed without demolishing something else.
• How will it be demolished? The duty extends there explicitly — see demolition and site clearing.

This is the part of the duty a contractor is unusually well placed to discharge, because contractors know how things are actually built and maintained in a way that a design office sometimes does not. It is also the part that turns safety in design from a compliance exercise into something genuinely useful, and it connects directly to the whole-of-life thinking in our guide to asset management plans and whole-of-life cost.

Designing out, not designing around

The hierarchy of control applies to design, and design is where the top of the hierarchy is actually available — which is the whole argument for the duty existing.

Level	Design examples in civil work
Eliminate	Batter instead of shore so nobody enters a supported excavation; precast at ground level instead of in-situ work at height; a maintenance-free detail that removes future entry
Substitute	A lighter component that does not need a crane; a material that does not require hot work; a system that can be installed mechanically
Isolate	Locating an asset outside the traffic envelope so it can be maintained without a road closure; separating access from the operating area
Engineering	Permanent anchor points, access platforms, guarding, lifting points cast in, edge protection designed as part of the structure
Administrative	Information passed on about residual risks, required sequences and maintenance constraints
PPE	Not a design control at all

Two design decisions deliver more safety than almost anything else in civil work, and both are cheap at design stage and impossible later: casting in lifting points and permanent anchor points, and locating assets where they can be maintained without entering a confined space or a live traffic lane. A contractor who raises those two questions on every job is discharging the duty in the way it was intended.

The civil design decisions that matter most

• Excavation depth and batter versus support. A design that allows battering removes the highest-consequence hazard in civil work — see temporary works and excavation support.
• Confined space creation. Every chamber, pit, tank and culvert that requires entry to build or maintain is a confined space for its whole life. Sizing an access opening properly, or designing so entry is unnecessary, is a permanent gain.
• Proximity to live services and traffic. Where an asset is located determines whether it is maintained safely or under a traffic management arrangement forever — the recurring cost in our guide to traffic management plans.
• Working at height. Whether a structure can be built and maintained from the ground, and whether anchor points exist — see working at height in civil construction.
• Component weight and lifting. Whether elements can be handled mechanically, and whether lifting points are provided.
• Manual handling designed in through component size and placement.
• Hazardous materials specified — silica-generating processes, materials requiring hot work, coatings requiring specific controls.
• Buildability and sequence. A design that can only be built in a way that puts people at risk is a design problem, not a method problem.

A workable process for a contractor

Formal safety in design workshops with facilitators and risk software are appropriate on major projects. For a civil SME the proportionate version has five steps and fits on two pages.

• Identify when you are designing. A trigger list — temporary works, alternatives, value engineering, on-site changes, D&C scope — so people recognise the moment.
• Ask the life-cycle questions: how is this built, used, maintained, repaired and demolished, and who is at risk at each stage.
• Work the hierarchy, starting at elimination, and record what was considered and why the chosen option was chosen.
• Consult the people who will do it. The crew, the maintenance people, and where relevant the asset owner. This is both a legal consultation requirement and the step that produces the useful answers.
• Pass on the residual risk information to whoever receives the design — in writing, specific, and covering the conditions necessary for safe construction, use and maintenance.

The fifth step is the one that is almost universally missed and is an express element of the duty. A design handed over without the information about residual risks and required conditions has not discharged the obligation, however good the design is.

The record that proves the duty was discharged

A duty discharged without a record is indistinguishable, after an incident, from a duty ignored.

• A safety in design register — the hazard identified, the options considered, the decision taken, the reason, and the residual risk.
• Who was consulted, and when.
• Calculations, analysis or certification where the design required them.
• The information transferred to the recipient, and evidence it was provided.
• Design changes on site, recorded at the time — including the ones made quickly.
• The residual risk information carried into the construction documents, the SWMS and the handover pack.

The site-change record is the one worth building a habit around. A short entry in the site diary — what was changed, why, who approved it, what was considered — takes two minutes and is the difference between a documented engineering decision and an unexplained deviation. It belongs in the contemporaneous record-keeping described in our guide to contract administration for civil SMEs, where it also serves a contractual purpose.

When the design you receive is the problem

Frequently the safety issue is in a design you did not produce. The contractor’s position here is stronger than most realise, and the obligation is real.

• You have your own duty in relation to how the work is carried out, so a design that can only be built unsafely is your problem regardless of who drew it.
• Raise it formally and early — in the clarification window at tender stage if it is visible then, using the mechanisms in our guide to tender clarifications and the RFI window, or by written request for information after award.
• Propose a solution rather than only a problem. A contractor who identifies a buildability risk and offers a workable alternative is doing something valuable; one who lodges an objection is creating an argument.
• Do not proceed and improvise. Building an unsafe design carefully is not a discharge of your duty.
• Record the exchange. If the designer confirms the design, that response is part of your record; if they change it, the change is a variation with a cost and time consequence.

Raising a design safety issue is also commercially useful. It is one of the few interventions that is simultaneously a safety obligation, a genuine contribution to the client, and a documented basis for a variation — the constructability contribution that our guide to ECI, alliances and collaborative contracting identifies as the thing early involvement is buying.

Temporary works: the design nobody calls a design

Temporary works is where the duty most clearly attaches to contractors and where the practice is weakest, because temporary works are conceived on site by people solving a problem.

• It is a structure people work in and around, so the design duty applies as it does to a permanent one.
• Design by a competent person, with checking proportionate to the consequence of failure.
• A register and a coordinator, even in a one-page form, so every temporary works item has a known status — the proportionate approach in our guide to temporary works and excavation support.
• Load cases must include construction loads, which are frequently more severe than in-service loads — plant on a platform, surcharge behind a wall, a partially built structure.
• Removal is part of the design. How the temporary works come out, safely, is a design question that is almost never asked at the point of design.
• Residual risk information to the crew who will erect, use and dismantle it.

Alternative tenders and value engineering

Proposing a different way of doing something is a design act, and it changes your position in ways worth understanding before you propose it.

• You acquire the design duty for what you have proposed.
• You may acquire design liability contractually, depending on how the alternative is accepted and documented — the mechanics in our guide to non-conforming and alternative tenders.
• Safety benefits are a legitimate argument for an alternative, and an under-used one. An alternative that removes a confined space entry or eliminates work at height is easier for a client to accept than one that only saves money.
• Document the safety comparison as part of the proposal, which strengthens the offer and creates the record.
• Check the insurance position before proposing, because a design contribution may fall outside your cover.

Insurance and where the liability sits

Two separate exposures arise from designing, and they are covered by different policies — or by none.

• The work health and safety duty is a statutory obligation. Breach carries regulatory consequences, and penalties for WHS breaches are generally not insurable.
• Civil liability for a defective design is a professional indemnity matter. Public liability and contract works policies commonly exclude liability arising from the provision of professional services or design.
• Contractors doing design work without professional indemnity cover are exposed in a way that is easy to miss, and it arises from activities as ordinary as proposing an alternative — the gap identified in our guide to insurance requirements in government civil tenders.
• Where you engage a designer, verify their professional indemnity cover, its limit, and whether it is maintained after the project ends, since design claims arrive late.
• Contractual liability caps may or may not apply to design obligations, and the position is worth checking rather than assuming.

The practical instruction: before you take on any design obligation, confirm in writing with your broker whether it is covered. The answer is frequently no for a contractor who does not routinely carry professional indemnity, and that changes whether the alternative is worth proposing.

What tenders ask, and how to answer

• “Describe your safety in design process.” Increasingly common, particularly on D&C and collaborative work. The strong answer names the triggers, the life-cycle questions, the hierarchy, consultation and the information transfer — and includes a worked example.
• Design risk registers requested as a returnable on D&C packages.
• Temporary works management, where a register and a coordinator is the answer.
• Constructability input, which is safety in design under a commercial name and is what early involvement is buying.
• Evidence. A completed register from a previous job, appropriately redacted, is worth more than a description of a process.

The strongest thing a contractor can offer here is the maintenance perspective, because designers rarely have it and asset owners care about it a great deal. A response that identifies how the asset will be maintained safely, and what the design could do to make that easier, is answering a question the client has and did not ask — the kind of specific, evidenced answer our guide to addressing selection criteria argues for.

Checklist

• Do the people in your business know that designing a structure attracts a WHS duty?
• Is there a trigger list identifying when you are designing — temporary works, alternatives, value engineering, site changes, D&C?
• Does your process ask the life-cycle questions: build, use, maintain, repair, demolish?
• Is the hierarchy worked from elimination down, with the reasoning recorded?
• Are the people who will build and maintain it consulted?
• Is residual risk information passed on in writing to whoever receives the design?
• Is there a safety in design register recording hazards, options, decisions and reasons?
• Are on-site design changes recorded at the time, including the quick ones?
• Are temporary works designed by a competent person, registered, and checked proportionately?
• Do temporary works load cases include construction loads?
• Has the removal of temporary works been designed, not just their erection?
• Where a received design cannot be built safely, is it raised formally and early rather than improvised around?
• Is the exchange with the designer recorded, and treated as a variation where the design changes?
• Before proposing an alternative, have you checked whether you acquire design liability?
• Do you carry professional indemnity cover for design work, confirmed with your broker in writing?
• Where you engage a designer, have you verified their PI cover, limit and run-off?
• Can you produce a completed design risk register as tender evidence?

Sources and further reading

This guide is general information for Australian civil construction businesses and is not work health and safety, engineering, legal or insurance advice. It deliberately states no regulation numbers or jurisdiction-specific provisions: the model work health and safety framework is enacted separately in each state and territory, and the design duty provisions and the applicable codes of practice differ in detail and are updated. Take the operative provisions from the regulator in each jurisdiction you work in. Whether a particular activity constitutes designing a structure, and what is reasonably practicable in a given case, are questions of fact requiring judgement and, where the consequences are significant, professional advice. Structural, geotechnical and temporary works design must be carried out by appropriately qualified and competent persons. Duties under the work health and safety framework cannot be contracted out of, and penalties for breach are generally not insurable. Liability for defective design is a professional indemnity matter that is commonly excluded from public liability and contract works policies; confirm your cover in writing with your broker before accepting any design obligation.

• The design duty under the model work health and safety framework as enacted across Australian jurisdictions, referenced in §01 — the obligation on a person conducting a business or undertaking that designs a structure to ensure so far as is reasonably practicable that it is without risks to health and safety during construction, use, maintenance, repair, alteration, demolition and dismantling; the requirement to carry out calculations, analysis, testing or examination as necessary; and the requirement to provide information about the structure’s purpose, testing results and the conditions necessary for safe use, construction and maintenance. The framework also provides that duties cannot be transferred and that more than one person may concurrently hold a duty. Regulation numbers differ by jurisdiction and are not reproduced here; the regulator’s current material and the applicable code of practice on safe design of structures are the operative sources.
• The hierarchy of control applied to design in §04, and the life-cycle questions in §03, follow the structure used in Australian safe design guidance. The specific design examples given are illustrative rather than prescriptive.
• The process and register described in §06 and §07 are presented as the guide’s own proportionate recommendation for a contractor-scale business, not as a regulated method. The requirement to pass on information about residual risks is, however, an express element of the statutory duty.
• The insurance observations in §11 reflect the general structure of Australian construction insurance, under which liability arising from professional services or design is commonly excluded from public liability and contract works policies and addressed by professional indemnity cover. Policy terms differ; the position is sourced in full in our guide to insurance requirements in government civil tenders and must be confirmed with your broker.
• Related TenderBuilt guides carrying the primary-source detail referenced above: WHS management plans and SWMS, temporary works and excavation support, working at height in civil construction, non-conforming and alternative tenders, contract forms beyond construct-only, ECI, alliances and collaborative contracting, tender clarifications and the RFI window, contract administration for civil SMEs, demolition and site clearing, traffic management plans and asset management plans and whole-of-life cost.