Dealing with the worst case scenario

One of the events that businesses dread most but perhaps prepare for least, is the occurrence of a reportable accident or, to a greater extent, a workplace fatality. Paul Johnston, Consultant with A&L Goodbody, gives guidance on best practice.

Given the variation in business activity and resulting risks across the range of industries, the post incident response to such events will likely differ in each case, but this article provides a general overview of practice in the case of a reportable occurrence or workplace fatality.

Reportable occurrences include major injuries; accidents where the injured person is unable to work for more than three days as a result; work related diseases; and near miss incidents. Before any business finds itself in the position of handling a reportable occurrence or workplace fatality, it should conduct an evaluation of its business to determine the risk that such incidents will occur and implement procedures to mitigate or prevent such risk. Every company at the very least should have in place a plan that identifies what should, and should not be done if a reportable occurrence or workplace fatality occurs. The plan should also identify who is responsible for implementation in the event of an occurrence. Once the plan is finalised, the company should conduct mock dry runs to identify any gaps in the response process and to confirm that the staff are aware of their responsibilities. Such efforts enhance the ability of the business to effectively respond to a reportable occurrence or workplace fatality and any ensuing investigation that may result. It is recommended that all plans are evaluated by a solicitor to ensure that the business is in compliance with any relevant regulatory requirements and that identified eventualities are accounted for.

The response of the business when such an incident occurs is likely to impact the outcome as regards any regulatory, criminal or civil action taken. A company is potentially subject to convictions for health and safety violations under the Health and Safety at Work (Northern Ireland) Order 1998, as well as conviction under the Corporate Manslaughter and Corporate Homicide Act 2007. The penalties in either situation are substantial and capable of significant impact upon a business. Hence, an agreed response strategy is crucial.

Reporting the Occurrence or Fatality

Upon the occurrence of a workplace fatality or other serious incident, the company must contact the appropriate authority(s) and report the matter. In all likelihood this will be either the Health and Safety Executive (HSE) Northern Ireland or the Environment Agency (NIEA) or both. In some situations the investigation may also involve the police. In the case of fatalities or major injuries, the authorities must be contacted immediately by phone. In addition there are strict requirements regarding the filing of forms and providing written notice to the appropriate authorities within short prescribed time periods. For example in the case of a major injury, a Form NI2508 must be filed within ten days.

Response Team

In addition to contacting the appropriate authorities, a response team, including the company’s solicitor, should be assembled to make the appropriate decisions and ensure implementation by the designated personnel. The response team should ensure that all company procedures are complied with. On occasion, in order to protect others from injury, the business may have to close. Occasionally the purpose will be to preserve evidence. Whatever the reason, such steps should be taken immediately to mitigate any liability.

Once the appropriate authority is contacted, it is likely they will send investigators to the scene of the fatality or accident. It is also possible that other emergency response personnel will report to the scene. Finally, it is possible that family members will also attend the scene of the fatality or major injury, in which case a member of the response team should communicate with all these parties and act as a liaison where needed.

Investigation

In addition to securing information regarding events that lead to the accident, investigators may seek other information if within their remit to do so. The powers can be wide ranging and extend beyond the facts surrounding the actual reportable accident or fatality. Although cooperation is required, each factual scenario is unique and will dictate the manner of such cooperation however, it should be noted that obstruction of an inspector from either the HSE or the NIEA during an investigation or contravention of an inspectors request is punishable by fines, imprisonment or both. If there is any doubt whether you are required to comply, you should immediately secure a solicitors advice – therefore all members of the response team should be provided with details of the solicitor that represents the business and/or any safety consultants the business has engaged.

Witness Statements

The investigators are likely to conduct voluntary interviews and take witness statements from witnesses, including employees of the company. Any statements made can be used against the witness or the company. Hence, in the case of a voluntary interview, witnesses should be made aware that they can terminate the interview at any time, be accompanied (by a solicitor, if they choose) and refuse a voluntary interview. If they are compelled to give an interview, the statement will not be admissible against the individual but may still be admissible against the company.

If at any point an investigator requests an interview under caution, the company or employee of the company should decide whether or not to attend the interview after consulting with a solicitor. The witness or the company should consider submitting a written statement but only if prepared with the assistance of a solicitor.

Document Management

As regards pre-accident documents in whatever format, the response team should gather and maintain them in one place and they should never be altered or destroyed. If anyone outside the company possesses relevant documents, the business should secure them as soon as possible.

The response team should also gather as much information as they can about the occurrence to allow them to make informed decisions moving forward. The response team should never prepare a communication regarding the cause of the accident without ensuring they maintain litigation privilege over the communication. It would be useful if such communications were made with the external legal advisor of the business. Otherwise, they may be compelled to produce those documents when they are not prepared to do so.

The failure to limit the creation of documents related to the occurrence post-accident can lead to additional problems for the business during an investigation or subsequent prosecution and/or litigation. All staff should be reminded not to prepare any new documents or communications discussing the occurrence or fatality post-accident unless absolutely necessary. If they do, the communication should prominently identify the confidentiality and privilege that is attached to the communication.

Whenever a business is requested to produce documents that it believe are legally privileged, it should at the very least consult its solicitors regarding this. The business should be confident when asserting such a privilege that it is not mistaken in their belief.

The response team should immediately review all relevant insurance policies with assistance from its solicitors to determine if there are any notification requirements and to ensure compliance with such contractual obligations.

Media Response

The response team should immediately devise a strategic media response. The company should appoint a designated person to deal with all media enquiries and all employees and management must be reminded not to provide interviews to anyone in the press.

Conclusion

It is impossible to predict when a workplace fatality or major injury will occur. Hence, it is imperative to have an effective plan in place to respond to such an occurrence. Without such a plan, knee jerk reactions are more likely to occur. Those types of reactions are more likely to lead prosecutions and civil litigation.

If you require any further information, assistance or advice contact Paul Johnston at

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