Major accident tool kitIssues forum – January 2009

Major accident tool kit – January 2009

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Serious accidents and fatalities atwork can trigger interventions fromenforcing authorities with significantlegal implications for firms andsenior managers. Following upour November 2007 Issues Forumon the Corporate Manslaughter andCorporate Homicide Act, we haveprepared the following guide to helpemployers carry out thoroughaccident investigations.

A risk managementperspective

One of the main reasons for conductinghealth and safety investigations is tobuild a better understanding of the risksassociated with particular work activities.Such investigations can help develop andrefine a risk management system thatcombines targeted risk control measureswith effective supervision and monitoringto minimise the risk of prosecution.

A liability perspective

It is important to strike a balance between,using the accident investigation processas an opportunity to audit and modify yoursystems and, protecting your legal position.

This guide aims to help you and your staffthrough the potentially complex aftermath ofa serious or fatal accident on site. It coverssome of the key areas of the law and offerspractical guidance on what to do if you facecharges under health and safety or underindividual and/or corporate manslaughterlegislation or under individual and/orcorporate manslaughter legislation.

Health and safetyprosecutions

Minor infringements of health and safetylegislation will not generally result inprosecutions. Self-regulation is theauthorities’ primary mechanism formanaging workplace health and safety,with a strong emphasis on risk assessment.

Prosecutions are likely to be consideredwhere:

• there is a need to draw the attentionof the public, an industry, or a particularemployer to the necessity of complyingwith current laws and standards

• prosecution is expected, for example:where a breach of duty has led to deathor serious injury

• there is, or has been, potential forconsiderable harm resulting from abreach of duty

• the significance of the offence merits aprosecution, for example: where therehave been repeated breaches and areckless disregard for the law

Responsibility for enforcing health and safetylegislation is shared between the Health andSafety Executive (HSE) and local authorities.These regulatory bodies have a variety ofoptions open to them where they believehealth and safety legislation has beencontravened:

Where a HSE inspector believes a breachof health and safety regulations is ongoingor likely to be repeated, an improvementnotice may be issued requiring that thecontravention be remedied within a specifiedperiod of time.

Where an inspector believes a particularactivity, or the use of a particular area, posesa risk of serious injury, a prohibition noticemay be issued requiring that the activity bestopped or the area restricted.

Improvement or prohibition notices do notin any way preclude prosecution at a laterdate. Most prosecutions follow earlierenforcement notices. Ignoring a prohibitionor improvement notice constitutes a breachof that notice, and can result in the companybeing prosecuted or the individualresponsible receiving a prison sentence.

In the event of a subsequent prosecution,having failed to challenge a notice may beregarded as tantamount to admitting unsafepractices. If you are served a notice whichyou believe may be inappropriate to thecircumstances, you should seek immediatelegal advice from your QBE panel solicitoron the merits of appealing.

The correct enforcing authority isdetermined primarily by the type of activitycarried on in a particular workplace.Further information on this can be found inschedules 1 and 2 of The Health and Safety(Enforcing Authorities) Regulations 1998.

A formal caution is an officially recordedreprimand for specific failings prior tonotification of an incident. Should any furtherbreach occur this caution will be taken intoconsideration.

1. No action

2. Written warning

3. Improvement notice

4. Prohibition notice

5. Formal caution

6. Prosecution

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Work related deaths

The offence of manslaughter can only beinvestigated by the police. There is no timelimit for such investigations. The CrownProsecution Service (CPS), or in Scotlandthe Procurator Fiscal, will then decidewhether a prosecution should proceed.

Where there is an indication of a seriouscriminal offence, such as individual orcorporate manslaughter, the police willconduct an investigation jointly with theHSE or local authority, who will lookspecifically at health and safety offences.

The HSE, Police and Crown ProsecutionService’s joint framework for effective liaisonis set out in ‘Work Related Deaths: AProtocol for Liaison’ [HSE, March 2003]

Managing the investigation

Following a serious incident, it is importantfor any organisation or individual faced withpotential criminal charges to put themselvesin the best position possible to:

a) avoid prosecution

b) defend themselves, should prosecutionensue

c) diminish the severity of any sentencethey may receive if convicted

QBE recommends having detailed plansand procedures in place for handling bothinternal and external investigations.

The accident

The first indication of a serious incident willoften be a distressed call from one of yourmanagers or employees. What you do fromthis moment on lays the foundations for theinvestigation ahead. Your site could soonbecome a designated crime scene whilethe police, HSE or local authorities gatherand assess the evidence. This will clearlyhave an immediate and significant impacton your business.

Acting in the best interests of yourorganisation, its directors, and employeesinvolves striking a balance betweena) protecting your legal position,b) making the necessary changes to preventrecurrence, and c) acting (and being seento act) in an appropriate way towards theinjured person and their family, youremployees, the authorities, and – importantnot to forget – the media.

By providing an overview of the typicalpattern of events following a death orserious injury on site, this guide will helpyou exercise strong leadership and goodjudgement, and coordinate an investigationthat does everything possible to protectall concerned.

Making the site safe

One of the first priorities will be to ensure thesite is safe and take any immediate remedialactions such as isolating power sources.In practice, however, the investigatingauthorities will probably insist that everythingbe left undisturbed. In which case, youshould touch nothing and ensure the area issealed or cordoned off, restricting access toinvestigators only.

A picture, as they say, paints a thousandwords. Photographs taken at this stage maywell become crucial evidence in court. So itis always advisable to have a camera onsite. Keeping a written record of what eachpicture shows is also important. This shouldinclude the date and time taken and theidentity of the photographer.

Visiting the site – gatheringessential evidence andinformation

It is essential you visit the site as soon aspossible after an accident to collate allrelevant schematic drawings, plans andphotographs and so compile a clear pictureof the scene at the time of the incident.The accident scene may be familiar tothose operating it, but will clearly be lessso to others.

Important clues or evidence of unsafeconditions and/or actions may well be foundat the locus of the incident. The longer thedelay in investigating, the greater the chanceconditions will have changed, evidencebeen lost, and vital contributory factorsmissed.

Things to check at the accident scenewould include:

• the condition and appropriate useof tools and equipment

• the cause of any slip or trip claimed (avoidfocusing solely on the immediate cause)

• defects in the work environment e.g.obstructions, holes, depressions orslippery floors

• the suitability, position and effectivenessof all necessary guards

• the condition, location and dimensions ofplant, lighting etc. (take measurements)

If there is no obvious reason for theaccident, then record this fact. Recordinga site in good order, is just important asrecording any faults.

To help capture a full picture of theevents leading up to an incident,we recommend you:

• determine and describe the location ofthose involved and their respective rolesand relationships

• determine and describe the eventspreceding the accident

• if the injured person is not youremployee, ascertain the name of thesub-contractor, the name and contactdetails of their most senior representativeon site and of the relevant contact forfurther information and ongoing liaison

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Supporting your employees

It is clearly advisable to offer immediatesupport and advice to any employeesinvolved in or affected by the incident. Thismight include counselling, line managementsupport, or legal advice – depending on theindividual and how they have been affected.

Having a director or a health and safetyadviser present during the aftermath andthe subsequent investigation can provideinvaluable support. It also shows you takethe incident seriously and care about youremployees’ welfare, as does discussing theincident with employees, even if you do notspecifically require a witness statementfrom them.

Making contact witha victim’s family

The people liaising most closely with thefamily will normally be the immediateemployer and the Police Family Liaisonservice. But even if you are not theemployer, you may still have an importantpart to play in providing support andinformation. If you do want to make contactwith the family of someone killed or injuredon your site, you need not worry that helpingwith funeral expenses or lost wages wouldbe seen as admitting blame.

Controlling the flow ofinformation

Establishing clear lines of communicationhelps everyone, not least the authorities.One senior individual should have soleauthority to speak and act on behalf of yourorganisation. All onsite employees shouldbe aware of this person’s contact details,so they can pass them on to the authoritiesor any other interested parties on request.

This person, or another senior person –preferably someone with media skills –should handle all press enquiries. Dealingwith the media can be a minefield. It isimportant to provide journalists withappropriate information and/or carefullyworded statements in a timely fashion.Inappropriate ‘off the record’ statements ora poorly expressed comments in aninterview can seriously damage yourreputation.

Reporting to the HSE

The Reporting of Injuries, Diseases andDangerous Occurrences Regulations1995 (Riddor) impose a legal duty on theimmediate employer or the company incontrol of the premises to report any deathor serious incident to the relevant enforcingauthority forthwith, by the quickestpracticable means. It is important you keepa record of your report.

You can fulfil your legal duty to report thedeath or 'specified major injury' withoutdelay by contacting the Incident ContactCentre directly by phone, via the internet,by email, or by post.

Telephone: 0845 3009923

Internet: www.riddor.gov.uk (complete andsubmit the form online)

Email: riddor@natbrit.com (download theform, complete it then email it)

Fax: Downloaded or printed forms can alsobe faxed to 0845 3009924

Post: Incident Contact Centre, CaerphillyBusiness Park, Caerphilly CF83 3GG

Specialist legal advice

Once your organisation – and potentially itsdirectors and employees – have becomethe subject of a criminal investigation, it isessential you have access to legal adviserswith the right expertise and resources toguide you through what can be an intenseand stressful process.

The police and HSE inspectors investigatingyou will be trained and experienced incriminal procedure and law. So it is vital yourorganisation can call on similar expertise. AllQBE’s panel solicitors are selected for theirexpertise in this field. Your own nominatedQBE panel solicitor should be your first pointof contact for legal advice.

They can advise you, amongst other things,about the concept of Legal ProfessionalPrivilege. This effectively protects you fromhaving to disclose documentation,statements and reports prepared in theaftermath of an incident to the police orHSE. This is something your own internalinvestigation should be aware of from thevery outset!

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Your investigation

Your internal accident investigator shouldbe on site as soon as possible to begininvestigating the incident’s causes andidentifying any necessary improvementsto current working practices. It is essential,however, that your investigation reflects thefact that a criminal investigation is alsounderway. Taking prompt and pertinentlegal advice can be critically important inthis context.

Key considerations include:

WitnessesRecord the accounts of all witnesseswho are in a fit condition to be interviewedas soon as possible. Ensure those whoare not, receive proper medical attentionand arrange to see them at a moreappropriate time.

Information sourcesThe exact location of persons and/orequipment at the time of the incident willoften be unclear. Equipment, barriers andother items can become displaced in theprocess of helping the injured party –creating confusion as to how an incidentoccurred. Photographs or video footage ofthe scene can help avoid this – particularlywhen accompanied by detailed notes.CCTV footage can also sometimes providevaluable clues.

It is important to preserve all relevantmaterials, plant, equipment and paperwork,as these may be required much later aspart of a civil or criminal investigation.

It is also vital you notify your company'sdirectors, brokers and insurers of anyaccident.

The form and content of your report havelegal implications which could prove crucialif proceedings are subsequently issued. It isimportant your ‘draft’ report is marked assuch at all stages. Each page should alsobe marked ‘without prejudice – preparedfor the purposes of taking legal advice.’

The person undertaking your investigationshould have been trained for the task. If youneed to use health and safety consultantsor other external providers to carry out yourinvestigation, you should maintain closecontrol over how they do so, and/or contactyour nominated QBE claims inspector/QBEpanel solicitor. If the authorities ask for acopy of your report, take legal advice beforeproviding one and ensure you limit thecirculation of your draft report to the fewestpeople possible.

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When the authorities callThe way you communicate with theauthorities can significantly affect thecompany's legal position, your employees'position, and your reputation. In the eventof a death, both the police and HSE willnormally arrive on your premises tocommence their investigations. Both havea legal right to enter under Section 20 ofthe Health and Safety at Work Act 1974.

Under the new corporate manslaughterlegislation, the police are obliged to remaininvolved until they can eliminate thepossibility of bringing charges. It could takeweeks, months, even years for them tosatisfy themselves that your seniormanagers are not culpable.

The police and the HSE have different legalpowers. If in doubt as the extent of theirrespective powers, consult your solicitor.

The police will treat the site as a crimescene. They may insist that all work stopsin the area of the incident while they assessthe scene and gather evidence. Equipmentin use at the time of the accident may beseized and removed from your site. You maybe asked to help dismantle and transportthis equipment.

If possible, it is a good idea to make officefacilities on site available to police officersand inspectors.

Evidence gathering:site documentationPaper and/or computer records for theperiod prior to the incident may well berequested or even seized. This could includemethod statements, risk assessments,inspection documentation, training recordsand any permits to work. Before removingfrom site, we strongly recommend takingthree copies of any relevant documents. Ifthe police or HSE take the only copy of adocument, there is a danger you may losetrack of it.

You should also:

• take legal advice on the categories ofdocumentation seized or copied

• keep a copy of everything removed fromyour premises

• record all documentation taken by theauthorities

• ask any contractor whose employee hasbeen injured on your site for copies ofany documents they provide to theauthorities

It is important to keep allcorrespondence with your legal teamseparate and marked “covered by legalprofessional privilege.” The authoritieshave no right to seize these documents.

Witness interviews

The enforcing authorities will want tointerview eye-witnesses first, followed byanyone else involved in the lead-up to theincident. They will aim to do this at theearliest opportunity and normally write upwitness statements on the spot. It is worthremembering that the evidence provided byyour senior managers will be central to anyinvestigation into either individual orcorporate manslaughter charges.

If you think employees may not be fit to beinterviewed, take legal advice – and be sureto raise the issue with the authorities. Wherepossible, interview all employees as part ofyour internal investigation before they speakto the authorities.

The HSE has powers to force witnessesto answer questions. Your solicitors canestablish the legal basis of employees'interviews and advise accordingly. YourQBE panel solicitor can offer general adviceto your employees on the interview process.For anything more detailed, however, it isbest to consult an independent solicitor.

It is good practice, though by no meansthe norm, for the authorities to provide youremployees with a copy of any statementthey have given. This helps by giving thema record they can check should they haveany concerns about misstatements oromissions. If a witness volunteers a copyof their statement, it may help you identifyissues to address and prepare for anyinterview under caution when theinvestigation nears its conclusion.

InquestsAny sudden death at work will trigger aninquest. Those considered to be interestedparties will include the deceased’s family,their employer, those in control of premiseswhere the fatal injury occurred, and anyoneelse whose conduct is likely to be called intoquestion. Each is entitled to participate inthe inquest process.

Inquests are limited in their scope, butprovide allows all interested parties toexplore the relevant facts and observewitnesses under questioning.

The Coroner's Court is only requiredto establish:

1 who died,

2 when they died,

3 where they died, and

4 under what circumstances they died

Apportioning blame is not part of theCoroner's remit. The facts that unfold atinquest, however, can strongly influence thechances of prosecution. So it makes senseto be represented at inquest – preferably byyour QBE panel solicitor, who can also actfor you later, should proceedings be issued.

In the context of an inquest, your QBE panelsolicitor can:

• ask the coroner what evidence he or sheintends calling or reading

• advise you on questioning witnesses

• help you alert the coroner to anyadditional witnesses with relevanttestimony to add

• appear for you at inquest and makeappropriate representations on legalissues

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PACE – interview undercaution(s)Once the authorities have finished gatheringevidence, they may well ask any employee(s)suspected of an offence – and/or arepresentative of their employer – to attendan interview under caution. Separateinterviews will take place for each partyunder investigation.

Police and HSE interviews may be voluntaryin the first instance. In the case ofmanslaughter investigations, however, thepolice are entitled, if necessary, to arrestsuspects with a view to interviewing themunder caution.

Taking legal advice is essential at this stage.This both enables you to ensure theinterview complies with the law, and givesyou the opportunity to present your positionin the best possible light – either as a denialof liability or an acceptance of fault withmitigation.

At interview you can respond either by:

• answering the questions posed, or

• reading out a prepared statement

Being interviewed under caution does notautomatically mean an employee will beprosecuted. But they will probably needseparate legal advice. So multiple suspectsmay create a need for multiple legal teams.It is a good idea to check your insurancepolicies to establish whether your directorsand senior managers will have access tolegal advice cover in the event of a fatalaccident.

Keeping out of troubleThe best option, of course, is to take allreasonably practicable steps to avoid havinga serious incident in the first place. There issome excellent guidance available on thistopic, and we strongly recommend youfamiliarise yourself with the leaflet INDG417(leading health and safety at work) publishedin October 2007 by the Institute of Directors(IoD) and The Health and SafetyCommission (HSC).

INDG417 contains guidance for boards anddirectors on how organisations of all typescan lead and promote health and safety,structured around the core principles ofplanning, delivery, monitoring and review. Itfeatures a useful checklist of areas in whichto benchmark your health and safetyperformance.

In combination with the following actionpoints, the approach outlined in INDG417should significantly reduce the potential forprosecution.

• Make sure your directors and seniormanagers show strong and activeleadership and a visible commitmentto health and safety

• Get your employees involved, andengage your workforce in promotinghealth and safety in the workplace

• Review your policies and proceduresin the light of our toolkit

• Prepare a major incident responseprocedure

• Train your accident investigation team

• Review your media and counsellingfacilities

• If in any kind of doubt, seek legal advicefrom your QBE panel solicitor.

Further information

You can find additional information onthe HSE website www.hse.gov.uk

and also on the following websites:

www.iod.com/hsguide

www.hse.gov.uk/leadership

Author biographies

Mike Barraclough, Liability RiskManager

Mike joined QBE in 1998 serving as aClaims Inspector for nine years beforejoining the Liability Risk Management teamin 2007. Mike has spent 27 years in theinsurance industry and he holds the NeboshNational Diploma in Occupational Safetyand Health.

Steffan Groch, Partner DWF Solicitors

Steffan qualified as a solicitor in 1995. Heis currently a partner with DWF Solicitors,based at their Manchester offices. Steffanspecialises in advising and representingcompanies, directors, and managers inall types of health and safety prosecutionsfrom the HSE, local authorities and theEnvironment Agency. Steffan and his teamare experts in proactive health and safetymanagement systems and procedures.

DWF, Centurion House, 129 Deansgate,Manchester M3 3AA. Tel: 0161 603 5008

Disclaimer

This Forum has been produced by QBEInsurance (Europe) Limited (“QIEL”). QIEL isa company member of the QBE InsuranceGroup.

Readership of this Forum does not createan insurer-client, advisor-client, or otherbusiness or legal relationship.

This Forum provides information about thelaw to help you understand and manage riskwithin your organisation. Legal information isnot the same as legal advice. This Forumdoes not purport to provide a definitivestatement of the law and is not intendedto replace, nor may it be relied upon asa substitute for specific legal or otherprofessional advice.

QIEL has acted in good faith to provide anaccurate Forum. However, QIEL and theQBE Group do not make any warrantiesor representations of any kind about thecontents of this Forum, the accuracy ortimeliness of its contents, or that theinformation or explanations (if any) given.QIEL and the QBE Group do not have anyduty to you, whether in contract, tort, understatute or otherwise with respect to or inconnection with this Forum or theinformation contained within it.

QIEL and the QBE Group have no obligationto update this report or any informationcontained within it.

To the fullest extent permitted by law,QIEL and the QBE Group disclaim anyresponsibility or liability for any loss ordamage suffered or cost incurred by youor by any other person arising out of or inconnection with your or any other person’sreliance on this Report or on the informationcontained within it and for any omissions orinaccuracies.

QBE Insurance (Europe) Limited andQBE Underwriting Limited are authorisedand regulated by the Financial ServicesAuthority. QBE Management Services (UK)Limited and QBE Underwriting Services (UK)Limited are both Appointed Representativesof QBE Insurance (Europe) Limited and QBEUnderwriting Limited.

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QBE Insurance (Europe) Limited and QBE Underwriting Limited are authorised and regulated by the Financial Services Authority. QBE Management Services (UK) Limitedand QBE Underwriting Services (UK) Limited are both Appointed Representatives of QBE Insurance (Europe) Limited and QBE Underwriting Limited.

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QBE European Operations is a trading name of QBE Insurance (Europe) Limited, no.01761561 ('QIEL'), QBE Underwriting Limited, no. 01035198 ('QUL'), QBE Management Services (UK) Limited, no. 03153567 ('QMSUK') and QBE Underwriting Services (UK) Limited, no. 02262145 ('QSUK'), whose registered offices are at Plantation Place, 30 Fenchurch Street, London, EC3M 3BD. All four companies are incorporated in England and Wales. QIEL and QUL are authorised and regulated by the Financial Services Authority. QUL is a Lloyd's managing agent. QMSUK and QSUK are both Appointed Representatives of QIEL and QUL.

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Dear reader Thank you for taking the trouble to read this publication.

QBE Risk Management believe that best practice organisations are those where senior individuals facilitate and engage in the processes of sensible risk management. We make this document available to all interest parties in an effort to share knowledge and promote good practise.

Our services are available only to clients insured by QBE in Europe. Our insurance products are sold through insurance brokers. We cannot offer advisory services to anyone else, however we would be delighted to hear if you have found this document useful or believe there are risk management issues that do not receive appropriate attention in the media.

Regards QBE Risk Management Team email: RM@uk.qbe.com www.QBEeurope.com/RM

Disclaimer This document has been produced by QBE Insurance (Europe) Limited (“QIEL”). QIEL is a company member of the QBE Insurance Group.

Readership of this Forum does not create an insurer-client, advisor-client, or other business or legal relationship.

This Forum provides information about the law to help you understand and manage risk within your organisation. Legal information is not the same as legal advice.

This Forum does not purport to provide a definitive statement of the law and is not intended to replace, nor may it be relied upon as a substitute for specific legal or other professional advice.

QIEL has acted in good faith to provide an accurate Forum. However, QIEL and the QBE Group do not make any warranties or representations of any kind about the contents of this Forum, the accuracy or timeliness of its contents, or the information or explanations (if any) given.

QIEL and the QBE Group do not have any duty to you, whether in contract, tort, under statute or otherwise with respect to or in connection with this Forum or the information contained within it. QIEL and the QBE Group have no obligation to update this report or any information contained within it.

To the fullest extent permitted by law, QIEL and the QBE Group disclaim any responsibility or liability for any loss or damage suffered or cost incurred by you or by any other person arising out of or in connection with your or any other person’s reliance on this Report or on the information contained within it and for any omissions or inaccuracies.