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March 7, 2012

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Doing the right thing in accident investigations

Accident investigation reports and how they can help or hinder the health and safety practitioner was the topic of solicitor Kevin Bridges’ presentation to IOSH 2012 delegates this afternoon (7 March).

Kevin, who has acted for the defence in several high-profile health and safety-related cases – including the first prosecution under the Corporate Manslaughter and Corporate Homicide Act, which concluded last year – began by emphasising that there is no positive legal duty to investigate accidents.

However, as the duty to monitor and review systems and processes is explicit in reg.5 of the Management of Health and Safety at Work Regulations 1999, such investigations are invaluable in terms of learning lessons.

But, Kevin warned, this is not the only reason to carry them out and, indeed, the reasoning behind them is a crucial consideration, as they can come back to haunt you.

He explained: “The fallout of any accident is that there may be civil and criminal repercussions, and any report produced as a result will be a disclosable document – for example, when it comes to civil claims, and inquiries from the HSE and insurers. You, as the practitioner will want to do it primarily to learn lessons but, from a lawyer’s perspective, the report may contain admissions of liability.”

How do you balance that? The answer lies in legal privilege, said Kevin. Privileged documents don’t have to be disclosed if the main reason for their production is to obtain legal advice because of the possibility of legal action as a result of the accident.

A good report, Kevin emphasised, can help an organisation avoid prosecution but a bad one may cause the organisation to have to settle a personal-injury claim, for example, or plead guilty in a court of law.

To ensure your report is good, Kevin told delegates, you must ensure it is factual and not full of opinion. He continued: “Think about the witnesses you speaking to and what they are saying to you. Challenge discrepancies and inconsistencies by all means but don’t be tempted to speculate or plug any gaps in the evidence. If you need expert input from others, get it.

“Look at the immediate, underlying and root causes of the incident. Avoid any admissions of liability and try not to blame individuals. Don’t seek to gold-plate, or use the report to identify a whole raft of failures unrelated to the root cause of the incident.”

Kevin’s final word of advice for delegates was to have an internal policy in their organisations on accident investigation, clarifying the reasons for doing it – the three main ones being, he concluded, “to learn lessons, obtain legal advice, or take disciplinary action, where necessary”.

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