Issues Forum Jan 2009 Major Accidents Toolkit

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Thought leadership insurance document from QBE European Operations.
This guide has been constructed to help you and your staff through the potentially complex aftermath of a serious or fatal accident on site. It covers key areas of the law and offers practical guidance on what to do when organisations and individuals are faced with criminal charges under health and safety and corporate manslaughter legislation.

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Issues Forum Jan 2009 Major Accidents Toolkit

  1. 1. Major accident tool kit Issues forum – January 2009
  2. 2. 1 Major accident tool kit – January 2009
  3. 3. Serious accidents and fatalities at work can trigger interventions from enforcing authorities with significant legal implications for firms and senior managers. Following up our November 2007 Issues Forum on the Corporate Manslaughter and Corporate Homicide Act, we have prepared the following guide to help employers carry out thorough accident investigations. A risk management A liability perspective perspective It is important to strike a balance between, One of the main reasons for conducting using the accident investigation process health and safety investigations is to as an opportunity to audit and modify your build a better understanding of the risks systems and, protecting your legal position. associated with particular work activities. Such investigations can help develop and This guide aims to help you and your staff refine a risk management system that through the potentially complex aftermath of combines targeted risk control measures a serious or fatal accident on site. It covers with effective supervision and monitoring some of the key areas of the law and offers to minimise the risk of prosecution. practical guidance on what to do if you face charges under health and safety or under individual and/or corporate manslaughter legislation or under individual and/or corporate manslaughter legislation.
  4. 4. Health and safety Responsibility for enforcing health and safety Where a HSE inspector believes a breach prosecutions legislation is shared between the Health and of health and safety regulations is ongoing Safety Executive (HSE) and local authorities. or likely to be repeated, an improvement Minor infringements of health and safety These regulatory bodies have a variety of notice may be issued requiring that the legislation will not generally result in options open to them where they believe contravention be remedied within a specified prosecutions. Self-regulation is the health and safety legislation has been period of time. authorities’ primary mechanism for contravened: managing workplace health and safety, Where an inspector believes a particular with a strong emphasis on risk assessment. activity, or the use of a particular area, poses 1. No action a risk of serious injury, a prohibition notice Prosecutions are likely to be considered may be issued requiring that the activity be where: stopped or the area restricted. • there is a need to draw the attention Improvement or prohibition notices do not 2. Written warning of the public, an industry, or a particular in any way preclude prosecution at a later employer to the necessity of complying date. Most prosecutions follow earlier with current laws and standards enforcement notices. Ignoring a prohibition or improvement notice constitutes a breach • prosecution is expected, for example: 3. Improvement notice of that notice, and can result in the company where a breach of duty has led to death being prosecuted or the individual or serious injury responsible receiving a prison sentence. • there is, or has been, potential for considerable harm resulting from a In the event of a subsequent prosecution, breach of duty 4. Prohibition notice having failed to challenge a notice may be regarded as tantamount to admitting unsafe • the significance of the offence merits a practices. If you are served a notice which prosecution, for example: where there you believe may be inappropriate to the have been repeated breaches and a circumstances, you should seek immediate reckless disregard for the law 5. Formal caution legal advice from your QBE panel solicitor on the merits of appealing. The correct enforcing authority is determined primarily by the type of activity 6. Prosecution carried on in a particular workplace. Further information on this can be found in schedules 1 and 2 of The Health and Safety (Enforcing Authorities) Regulations 1998. A formal caution is an officially recorded reprimand for specific failings prior to notification of an incident. Should any further breach occur this caution will be taken into consideration. 3 Major accident tool kit – January 2009
  5. 5. The accident The first indication of a serious incident will often be a distressed call from one of your managers or employees. What you do from this moment on lays the foundations for the investigation ahead. Your site could soon become a designated crime scene while the police, HSE or local authorities gather and assess the evidence. This will clearly have an immediate and significant impact on your business. Work related deaths Managing the investigation Acting in the best interests of your organisation, its directors, and employees The offence of manslaughter can only be Following a serious incident, it is important involves striking a balance between investigated by the police. There is no time for any organisation or individual faced with a) protecting your legal position, limit for such investigations. The Crown potential criminal charges to put themselves b) making the necessary changes to prevent Prosecution Service (CPS), or in Scotland in the best position possible to: recurrence, and c) acting (and being seen the Procurator Fiscal, will then decide a) avoid prosecution to act) in an appropriate way towards the whether a prosecution should proceed. injured person and their family, your b) defend themselves, should prosecution employees, the authorities, and – important Where there is an indication of a serious ensue not to forget – the media. criminal offence, such as individual or c) diminish the severity of any sentence corporate manslaughter, the police will they may receive if convicted By providing an overview of the typical conduct an investigation jointly with the pattern of events following a death or HSE or local authority, who will look QBE recommends having detailed plans serious injury on site, this guide will help specifically at health and safety offences. and procedures in place for handling both you exercise strong leadership and good internal and external investigations. judgement, and coordinate an investigation The HSE, Police and Crown Prosecution that does everything possible to protect Service’s joint framework for effective liaison all concerned. is set out in ‘Work Related Deaths: A Protocol for Liaison’ [HSE, March 2003]
  6. 6. Making the site safe One of the first priorities will be to ensure the site is safe and take any immediate remedial actions such as isolating power sources. In practice, however, the investigating authorities will probably insist that everything be left undisturbed. In which case, you should touch nothing and ensure the area is sealed or cordoned off, restricting access to investigators only. A picture, as they say, paints a thousand words. Photographs taken at this stage may well become crucial evidence in court. So it is always advisable to have a camera on site. Keeping a written record of what each picture shows is also important. This should include the date and time taken and the identity of the photographer. Visiting the site – gathering essential evidence and information It is essential you visit the site as soon as Things to check at the accident scene To help capture a full picture of the possible after an accident to collate all would include: events leading up to an incident, relevant schematic drawings, plans and we recommend you: photographs and so compile a clear picture • the condition and appropriate use of the scene at the time of the incident. of tools and equipment • determine and describe the location of The accident scene may be familiar to those involved and their respective roles • the cause of any slip or trip claimed (avoid those operating it, but will clearly be less and relationships focusing solely on the immediate cause) so to others. • determine and describe the events • defects in the work environment e.g. preceding the accident Important clues or evidence of unsafe obstructions, holes, depressions or conditions and/or actions may well be found slippery floors • if the injured person is not your at the locus of the incident. The longer the employee, ascertain the name of the • the suitability, position and effectiveness delay in investigating, the greater the chance sub-contractor, the name and contact of all necessary guards conditions will have changed, evidence details of their most senior representative been lost, and vital contributory factors • the condition, location and dimensions of on site and of the relevant contact for plant, lighting etc. (take measurements) further information and ongoing liaison missed. If there is no obvious reason for the accident, then record this fact. Recording a site in good order, is just important as recording any faults. 5 Major accident tool kit – January 2009
  7. 7. Supporting your employees This person, or another senior person – Specialist legal advice preferably someone with media skills – It is clearly advisable to offer immediate should handle all press enquiries. Dealing Once your organisation – and potentially its support and advice to any employees with the media can be a minefield. It is directors and employees – have become involved in or affected by the incident. This important to provide journalists with the subject of a criminal investigation, it is might include counselling, line management appropriate information and/or carefully essential you have access to legal advisers support, or legal advice – depending on the worded statements in a timely fashion. with the right expertise and resources to individual and how they have been affected. Inappropriate ‘off the record’ statements or guide you through what can be an intense a poorly expressed comments in an and stressful process. Having a director or a health and safety interview can seriously damage your adviser present during the aftermath and reputation. The police and HSE inspectors investigating the subsequent investigation can provide you will be trained and experienced in invaluable support. It also shows you take Reporting to the HSE criminal procedure and law. So it is vital your the incident seriously and care about your organisation can call on similar expertise. All employees’ welfare, as does discussing the The Reporting of Injuries, Diseases and QBE’s panel solicitors are selected for their incident with employees, even if you do not Dangerous Occurrences Regulations expertise in this field. Your own nominated specifically require a witness statement 1995 (Riddor) impose a legal duty on the QBE panel solicitor should be your first point from them. immediate employer or the company in of contact for legal advice. control of the premises to report any death Making contact with or serious incident to the relevant enforcing They can advise you, amongst other things, a victim’s family authority forthwith, by the quickest about the concept of Legal Professional practicable means. It is important you keep Privilege. This effectively protects you from The people liaising most closely with the a record of your report. having to disclose documentation, family will normally be the immediate statements and reports prepared in the employer and the Police Family Liaison You can fulfil your legal duty to report the aftermath of an incident to the police or service. But even if you are not the death or 'specified major injury' without HSE. This is something your own internal employer, you may still have an important delay by contacting the Incident Contact investigation should be aware of from the part to play in providing support and Centre directly by phone, via the internet, very outset! information. If you do want to make contact by email, or by post. with the family of someone killed or injured on your site, you need not worry that helping Telephone: 0845 3009923 with funeral expenses or lost wages would Internet: www.riddor.gov.uk (complete and be seen as admitting blame. submit the form online) Controlling the flow of Email: riddor@natbrit.com (download the information form, complete it then email it) Fax: Downloaded or printed forms can also Establishing clear lines of communication be faxed to 0845 3009924 helps everyone, not least the authorities. One senior individual should have sole Post: Incident Contact Centre, Caerphilly authority to speak and act on behalf of your Business Park, Caerphilly CF83 3GG organisation. All onsite employees should be aware of this person’s contact details, so they can pass them on to the authorities or any other interested parties on request. 7 Major accident tool kit – January 2009
  8. 8. Your investigation Information sources The form and content of your report have legal implications which could prove crucial The exact location of persons and/or Your internal accident investigator should if proceedings are subsequently issued. It is equipment at the time of the incident will be on site as soon as possible to begin important your ‘draft’ report is marked as often be unclear. Equipment, barriers and investigating the incident’s causes and such at all stages. Each page should also other items can become displaced in the identifying any necessary improvements be marked ‘without prejudice – prepared process of helping the injured party – to current working practices. It is essential, for the purposes of taking legal advice.’ creating confusion as to how an incident however, that your investigation reflects the occurred. Photographs or video footage of fact that a criminal investigation is also The person undertaking your investigation the scene can help avoid this – particularly underway. Taking prompt and pertinent should have been trained for the task. If you when accompanied by detailed notes. legal advice can be critically important in need to use health and safety consultants CCTV footage can also sometimes provide this context. or other external providers to carry out your valuable clues. investigation, you should maintain close Key considerations include: control over how they do so, and/or contact It is important to preserve all relevant your nominated QBE claims inspector/QBE materials, plant, equipment and paperwork, Witnesses panel solicitor. If the authorities ask for a as these may be required much later as Record the accounts of all witnesses copy of your report, take legal advice before part of a civil or criminal investigation. who are in a fit condition to be interviewed providing one and ensure you limit the as soon as possible. Ensure those who circulation of your draft report to the fewest It is also vital you notify your company's are not, receive proper medical attention people possible. directors, brokers and insurers of any and arrange to see them at a more accident. appropriate time.
  9. 9. 9 Major accident tool kit – January 2009
  10. 10. When the authorities call Evidence gathering: Witness interviews The way you communicate with the site documentation The enforcing authorities will want to authorities can significantly affect the Paper and/or computer records for the interview eye-witnesses first, followed by company's legal position, your employees' period prior to the incident may well be anyone else involved in the lead-up to the position, and your reputation. In the event requested or even seized. This could include incident. They will aim to do this at the of a death, both the police and HSE will method statements, risk assessments, earliest opportunity and normally write up normally arrive on your premises to inspection documentation, training records witness statements on the spot. It is worth commence their investigations. Both have and any permits to work. Before removing remembering that the evidence provided by a legal right to enter under Section 20 of from site, we strongly recommend taking your senior managers will be central to any the Health and Safety at Work Act 1974. three copies of any relevant documents. If investigation into either individual or the police or HSE take the only copy of a corporate manslaughter charges. Under the new corporate manslaughter document, there is a danger you may lose legislation, the police are obliged to remain track of it. If you think employees may not be fit to be involved until they can eliminate the interviewed, take legal advice – and be sure possibility of bringing charges. It could take You should also: to raise the issue with the authorities. Where weeks, months, even years for them to possible, interview all employees as part of satisfy themselves that your senior • take legal advice on the categories of your internal investigation before they speak managers are not culpable. documentation seized or copied to the authorities. • keep a copy of everything removed from The police and the HSE have different legal your premises The HSE has powers to force witnesses powers. If in doubt as the extent of their to answer questions. Your solicitors can respective powers, consult your solicitor. • record all documentation taken by the establish the legal basis of employees' authorities interviews and advise accordingly. Your The police will treat the site as a crime • ask any contractor whose employee has QBE panel solicitor can offer general advice scene. They may insist that all work stops been injured on your site for copies of to your employees on the interview process. in the area of the incident while they assess any documents they provide to the For anything more detailed, however, it is the scene and gather evidence. Equipment authorities best to consult an independent solicitor. in use at the time of the accident may be seized and removed from your site. You may It is important to keep all It is good practice, though by no means be asked to help dismantle and transport correspondence with your legal team the norm, for the authorities to provide your this equipment. separate and marked “covered by legal employees with a copy of any statement professional privilege.” The authorities they have given. This helps by giving them If possible, it is a good idea to make office have no right to seize these documents. a record they can check should they have facilities on site available to police officers any concerns about misstatements or and inspectors. omissions. If a witness volunteers a copy of their statement, it may help you identify issues to address and prepare for any interview under caution when the investigation nears its conclusion.
  11. 11. Inquests Any sudden death at work will trigger an inquest. Those considered to be interested parties will include the deceased’s family, their employer, those in control of premises where the fatal injury occurred, and anyone else whose conduct is likely to be called into question. Each is entitled to participate in the inquest process. Inquests are limited in their scope, but provide allows all interested parties to explore the relevant facts and observe witnesses under questioning. The Coroner's Court is only required to 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 the In the context of an inquest, your QBE panel Coroner's remit. The facts that unfold at solicitor can: inquest, however, can strongly influence the chances of prosecution. So it makes sense • ask the coroner what evidence he or she to be represented at inquest – preferably by intends calling or reading your QBE panel solicitor, who can also act • advise you on questioning witnesses for you later, should proceedings be issued. • help you alert the coroner to any additional witnesses with relevant testimony to add • appear for you at inquest and make appropriate representations on legal issues 11 Major accident tool kit – January 2009
  12. 12. PACE – interview under Keeping out of trouble caution(s) The best option, of course, is to take all Once the authorities have finished gathering reasonably practicable steps to avoid having evidence, they may well ask any employee(s) a serious incident in the first place. There is suspected of an offence – and/or a some excellent guidance available on this representative of their employer – to attend topic, and we strongly recommend you an interview under caution. Separate familiarise yourself with the leaflet INDG417 interviews will take place for each party (leading health and safety at work) published under investigation. in October 2007 by the Institute of Directors (IoD) and The Health and Safety Police and HSE interviews may be voluntary Commission (HSC). in the first instance. In the case of manslaughter investigations, however, the INDG417 contains guidance for boards and police are entitled, if necessary, to arrest directors on how organisations of all types suspects with a view to interviewing them can lead and promote health and safety, under caution. structured around the core principles of planning, delivery, monitoring and review. It Taking legal advice is essential at this stage. features a useful checklist of areas in which This both enables you to ensure the to benchmark your health and safety interview complies with the law, and gives performance. you the opportunity to present your position in the best possible light – either as a denial In combination with the following action of liability or an acceptance of fault with points, the approach outlined in INDG417 mitigation. should significantly reduce the potential for prosecution. At interview you can respond either by: • Make sure your directors and senior • answering the questions posed, or managers show strong and active leadership and a visible commitment • reading out a prepared statement to health and safety Being interviewed under caution does not • Get your employees involved, and automatically mean an employee will be engage your workforce in promoting prosecuted. But they will probably need health and safety in the workplace separate legal advice. So multiple suspects • Review your policies and procedures may create a need for multiple legal teams. in the light of our toolkit It is a good idea to check your insurance policies to establish whether your directors • Prepare a major incident response and senior managers will have access to procedure legal advice cover in the event of a fatal • Train your accident investigation team accident. • Review your media and counselling facilities • If in any kind of doubt, seek legal advice from your QBE panel solicitor.
  13. 13. Further information Disclaimer QIEL and the QBE Group have no obligation to update this report or any information You can find additional information on This Forum has been produced by QBE contained within it. the HSE website www.hse.gov.uk Insurance (Europe) Limited (“QIEL”). QIEL is a company member of the QBE Insurance To the fullest extent permitted by law, and also on the following websites: Group. QIEL and the QBE Group disclaim any www.iod.com/hsguide responsibility or liability for any loss or Readership of this Forum does not create damage suffered or cost incurred by you www.hse.gov.uk/leadership an insurer-client, advisor-client, or other or by any other person arising out of or in business or legal relationship. connection with your or any other person’s Author biographies reliance on this Report or on the information This Forum provides information about the contained within it and for any omissions or Mike Barraclough, Liability Risk law to help you understand and manage risk inaccuracies. Manager within your organisation. Legal information is Mike joined QBE in 1998 serving as a not the same as legal advice. This Forum QBE Insurance (Europe) Limited and Claims Inspector for nine years before does not purport to provide a definitive QBE Underwriting Limited are authorised joining the Liability Risk Management team statement of the law and is not intended and regulated by the Financial Services in 2007. Mike has spent 27 years in the to replace, nor may it be relied upon as Authority. QBE Management Services (UK) insurance industry and he holds the Nebosh a substitute for specific legal or other Limited and QBE Underwriting Services (UK) National Diploma in Occupational Safety professional advice. Limited are both Appointed Representatives and Health. of QBE Insurance (Europe) Limited and QBE QIEL has acted in good faith to provide an Underwriting Limited. Steffan Groch, Partner DWF Solicitors accurate Forum. However, QIEL and the Steffan qualified as a solicitor in 1995. He QBE Group do not make any warranties is currently a partner with DWF Solicitors, or representations of any kind about the based at their Manchester offices. Steffan contents of this Forum, the accuracy or specialises in advising and representing timeliness of its contents, or that the companies, directors, and managers in information or explanations (if any) given. all types of health and safety prosecutions QIEL and the QBE Group do not have any from the HSE, local authorities and the duty to you, whether in contract, tort, under Environment Agency. Steffan and his team statute or otherwise with respect to or in are experts in proactive health and safety connection with this Forum or the management systems and procedures. information contained within it. DWF, Centurion House, 129 Deansgate, Manchester M3 3AA. Tel: 0161 603 5008 13 Major accident tool kit – January 2009
  14. 14. QBE European Operations Plantation Place 30 Fenchurch Street London EC3M 3BD tel +44 (0)20 7105 4000 fax +44 (0)20 7105 4019 differently@uk.qbe.com www.QBEeurope.com 288/ISSUESFORUM/MAJORACCIDENTTOOLKIT/JANUARY 09 QBE Insurance (Europe) Limited and QBE Underwriting Limited are authorised and regulated by the Financial Services Authority. QBE Management Services (UK) Limited and QBE Underwriting Services (UK) Limited are both Appointed Representatives of QBE Insurance (Europe) Limited and QBE Underwriting Limited.
  15. 15. 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. QBE European Operations Plantation Place 30 Fenchurch Street London EC3M 3BD tel +44 (0)20 7105 4000 fax +44 (0)20 7105 4019 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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