We all know that accidents do happen from time to time. Immediately after an accident or near miss there is a perfectly natural desire to understand what happened, why and how it can be prevented from happening again. Accident investigation is essential for continuous improvement, learning, future loss prevention, damage limitation and regulatory compliance.
However, the investigation process itself carries legal risk which also needs to be managed. Consider the following:
Investigating may well require interviewing witnesses, recording location conditions at the time of the incident, obtaining expert views, taking photographs and video. Accident books and Incident Report Forms also need to be completed. Assumptions are made, opinions reached and conclusions drawn. They are often recorded in emails and copied widely.
The risk is that such documents might later be obtained by regulators investigating criminal offences and by the representatives of those seeking damages. In a claim for compensation, negligence is often proved by reference to the steps taken reactively post-accident, and which a claimant, understandably, suggests should have been done before. Learning from what has happened though doesn't necessarily have to weaken your defence.
Here are some "do's" and "don'ts" to help you manage the risk, learn from the incident and avoid handing a potential claimant a gift horse:
Draft a clear procedure to be followed in the event of an incident. Define clearly what will trigger the procedure and train people how to use it. Control the generation of documents (including emails) in the emotive period immediately after an incident.
Collate and retain documents. Pull together the documents which pre-date the incident and which are relevant to any claim or investigation. These will include risk assessments, safe systems of work, permits to work, training records, machinery maintenance records, Toolbox Talks and induction records. Such documentation can be essential for defending a claim, for example, where training records show that the claimant had been fully and properly trained and the incident occurred as a result of his/her failure to follow the training given. This documentation is invariably requested as a precursor to a civil claim for damages and failure to produce it can lead to an application to court.
Limit any accident report to the facts. Record the scene and circumstances factually and objectively. Consider the use of photographs or video. Include something to give scale or a timeframe as memories fade quickly. This report is discloseable and is not the place to attribute blame or make recommendations.
Interview witnesses promptly. Memories fade quickly. Statements should record objective fact and avoid opinion or suggestions about what may have happened. Have the witness read and sign the statement. Obtain contact details in case the witness is a contractor or visitor or leaves the organisation before the case is concluded.
Obtain technical input. If technical input is necessary ensure it is limited to explaining a process, not reaching conclusions. If you need expert 'opinion', make sure it is privileged to ensure you have control over its release.
No knee-jerk reactions. Don't be too quick to assume blame - employees have an obligation to protect their own health and safety too. However, do make sure that any on-going risk to others is eliminated or reduced. Don't overdo any reaction to what has occurred. Do not state that changes made are the result of any admitted pre-accident failure.
Don't just file accident reports. Have your health & safety manager review accident reports to understand what has happened and what might be done to prevent recurrence. Is there an emerging pattern in a particular area? Should changes be considered?
Consider claiming privilege
It may be necessary to think about asserting legal privilege over documents or correspondence to prevent them being disclosed. There are two types of privilege – legal advice privilege and litigation privilege.
The first covers confidential communications between a legal representative (internal or external) acting in his/her professional capacity and a client for the purpose of giving, seeking or receiving legal advice.
The second is wider and covers confidential communications between a legal representative (internal or external) and a client and between one of them and a third party where the dominant purpose of the communication is obtaining legal advice in relation to pending, reasonably foreseeable or existing litigation.
- Do not assume that marking a document as privileged gains the protection automatically. It is the substance, rather than the form, of the communication that will determine whether privilege applies or not.
- Do not assume that an accident investigation report will attract litigation privilege. Privilege may be disputed where the report is produced as a result of a pre-existing accident investigation procedure, not because litigation was anticipated. Keep such reports entirely limited to facts, with opinions perhaps being conveyed to/from lawyers or discussed in non-minuted meetings.
It's a balancing exercise.
There is a need for balance in all of this. The primary purpose of the investigation is to achieve the benefits set out at the beginning of this guide. You do not, however, have to make matters worse by recording conclusions too soon which may not ultimately be correct and which suggest a case against you. Keep your self flagellation private!