accident investigating and report writing

Accident investigating and report writing

IOSH South Coast Branch


Welcome and introductions Andy Byers Chair IOSH South Coast Branch


Types of evidence and reliability: how can an accident investigation help or hinder a case? Crispin Kenyon Partner Weightmans LLP

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IOSH SOUTH COAST BRANCH Accident investigating & report writing

Ageas Bowl

Key contact: Crispin Kenyon

Head of London Regulatory Services 0207 822 7151

[email protected]

1 December 2014

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Agenda

Types of evidence

Practical interview techniques - workshop

Legal perspective – what happens in court?

Reliability analysis - workshop

Open forum

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How can accident investigation help or hinder a case?

Too late or not done at all

Lacks the essentials

Illegible/illiterate

Not retained

Out of focus photos

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Reliability of evidence

Honesty or prejudice?

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Claim form

‘I stopped at the traffic lights. The lights changed. Miss P started to

move then stopped (stalled). I had just started to pull away and then

broke. As I stopped I very slightly touched the rear bumper of the car in

front, we both got out. There was no damage and Miss P is a fat chav

who definitely does not have whiplash’.

Without prejudice

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Sketches help

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Any corrupt minds?

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What can you see?

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Seeing what is there?

No preconceptions or assumptions

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A

BIRD

IN THE

THE HAND

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How careful are we? Spot the breaches


Practical interview techniques – workshop/breakout session Crispin Kenyon Partner Weightmans LLP Anne Bartlett Health and Wellness Senior Consultant CGI

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Practical interview techniques

Workshop/breakouts

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Case study - Investigation exercise

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XXXXXXXXXXXXXX

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Jones

office

Single tier racking

High level storage

Delivery bay

Corridor

Drop area

Impact point

Accident locus

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Practical investigation techniques

• Who to interview?

• Why?

• What are we looking for?

• Where are we going with it?

• Chronology

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Human failings

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Reporting our findings

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Determine causes

Immediate causes

Those things that had a direct influence at the time of the incident, either causing it or contributing to it.

Underlying causes

Not directly involved but contributed to the unsafe act and/or condition and found to be “wanting”

Root causes

The primary reason or reasons why the incident occurred.

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Recommendations

Draw conclusions

Make recommendations

Implement corrective actions

Set a time table to complete them

Assign responsibility

Check completion

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Corrective Action Ideas

Physical changes

Procedural changes

Training

Programs

▪ Personnel and selection

▪ Environmental

▪ Behavioral

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Recommendations

Do:

Consider findings of fact

Limit ‘’immediate’’ corrective action to what is necessary

Keep recommendations narrow

Consider wider issues later

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Recommendations

Don’t:

Be overly critical (hindsight wonderful)

Decide there is automatic fault

Be afraid to say no corrective action required

Simply accept IP’s account

Forget contributory negligence

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Write the report

When and where did the accident happen

Who was involved

Injuries sustained

How did it happen

What was the sequence of events

What was the cause

What are the recommendations

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Report writing tips

Provide complete information and details

Description of event

▪ 4 word story - injury, body part, direct cause, object

Did you ID cause(s); direct / indirect

List corrective action(s) to be taken

Identify who will be responsible for follow-up

Sign and date

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Legal privilege – true or false?

• Applies to my draft report?

• Applies to my completed report?

• Applies to advice and communications with lawyers?

• Applies to statements from unhelpful witnesses?

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Standard disclosure documents

Accident investigation & first aid report

Pre and post accident risk assessment and SSoW

Photographs, sketches

Witness statements

Minutes of Health and Safety Meetings

Training records

Any other notes/emails relating to the accident

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Summary – key points

▪ All incidents should be investigated

▪ Apply the six step process

▪ Emphasis on fact finding, not finding fault

▪ Recommendations should be proportionate

▪ Understand the disclosure process

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It’s Coffee Time….


Coffee


Statement-writing and note-taking: tips and traps Anne Bartlett Health and Wellness Senior Consultant CGI

IOSH CONFERENCE

Anne Bartlett MSC (OH), CMIOSH

1st December 2014

STATEMENT TAKING AND NOTE WRITING.

Session 3

Investigation

Reactive process which following an accident/incident/ill health aims to:-

• Gather and establish the facts

• Identify immediate and underlying causes (Reason’s model).

• Learn lessons so that remedial actions can be designed to prevent recurrence.

Why investigate?

Reasons

• Vital part of the monitoring of your risk assessments & management systems.

• Moral obligation to prevent future injuries & ill-health

• In your favour if HSE carries out its own investigation.

BUT MUST BE DONE WELL!

What evidence could we use?

Evidence could be:-

• CCTV footage

• Photographs

• Measurements

• Physical evidence e.g.. machinery involved

• Documents including notebooks.

• Witness statements

Witness statement

• Document recording the evidence of a person, signed by that person to confirm that the contents of the statement are true.

• Records what the witness saw, heard or felt.

• May also open new lines of enquiry or help in corroborating other information.

Witness statements

Plan:

• Who

• In what order

• When

• Where

• Outline questions

ALL WITH OPEN MIND

Witness statements

• Start with notebook interview.

• Note who is present, date and time

• Laptop easier than writing.

• Always written in first person

• Signed to say that they are true.

Structure

• Easy factual questions e.g. how long in post.

• Details of normal day.

• Events on day of the incident.

• Describe the incident - what they saw, heard and felt, as well as what they did. Their own experience, not hearsay.

• What they think caused the incident and actions since.

Do not:-

• Interrupt, but allow free recall and pauses.

• Lead the witness.

• Allow intimidation or blame.

• Allow the witness to incriminate themselves

At the end

• Ask if there is anything they want to add.

• Allow person to read it back and make any amendments necessary.

• Ask questions to add further detail and provide clarification.

• Challenge any inconsistencies.

QUESTIONS?


The legal perspective – what happens in court? Crispin Kenyon Partner Weightmans LLP Anne Bartlett Health and Wellness Senior Consultant CGI

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Crispin Kenyon – Coroner’s Inquests

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Session 3

What happens in the coroner’s court?

▪ Who, when, where and how?

▪ How means what exactly?

▪ What an inquest is not

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Let the Inquest begin

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The Coroner’s Court

Not a criminal court

No sentence can be imposed

But, traps for the unwary

▪ Conclusion of unlawful killing

▪ Risk of self-incrimination

▪ Face to face with the victim’s family and friends

WHAT HAPPENS IN COURT SESSION 4

Which Court?

• Health and Safety cases are generally triable either way but Magistrates Court most likely since penalties for H & S cases were increased to £20,000 per breach

• Possibility of imprisonment

• One third reduction for early guilty plea

• Costs

Preparation

• Prepare your material.

• Reference documents.

• Location.

• Who is who

• Dress appropriately

In the witness box

Do:

• Stay calm.

• Explain clearly

• Stick to facts supported by evidence

• If don’t know, say so.

• Apologise if appropriate

• Have support in court from Senior management.

In the witness box

Don’t

• Speculate

• Stray outside areas of competence

• Attempt to minimise seriousness of events

• Apportion blame

Afterwards

• Do expect media interest and have information prepared

• Brief senior management.

• Make sure lessons are learned to prevent recurrence.

QUESTIONS?

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Sentencing

Guidelines

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Sentencing in H&S cases

▪ HSE statistics, 2013/14

http://www.hse.gov.uk/statistics/

▪ 674 cases 636 convictions (94%)

▪ 1187 offences 1073 convictions (90%)

▪ Average HSE offence £18,944 (total £16.7m)

▪ Average LA offence £8,225 (total £1.6m)



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Broad principles

▪ Seriousness of the offence – culpability and harm

▪ How foreseeable?

▪ How far short of the standard expected?

▪ How common was the breach?

▪ How far up the organisation?

▪ Aggravating and mitigating features in the case

▪ Offender mitigation

▪ Remedial steps

▪ Guilty plea

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Sentencing – examples

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Case #1 - Scaffolding boss jailed

▪ Mr H responsible for tower scaffold. Edge protection missing and no fall arrest harness in place.

▪ Employee, 25, fell 14 metres to his death

▪ Not guilty plea – found guilty after three-day Crown Court trial

▪ 15 month custodial sentence for breach of WAH Regs.

▪ Mr H obstructed investigation by failing to produce paperwork - prosecuted twice during investigation (fined over £15k)

▪ Custodial sentence, to run concurrently with life imprisonment for murdering his brother in family feud

Lessons learned

▪ Assess matters yourself and challenge unsafe methods of work

▪ Relationship with HSE is very important

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Case #2– FLT driver prosecuted

▪ Experienced FLT driver asks co-worker to steady a half tonne load on his forks

▪ Load fell onto colleague - fractured shoulder, shin and ankle.

▪ FLT driver (only defendant) pleaded guilty to Section 7 charge

▪ Fined £237

▪ Summarily dismissed for gross misconduct

▪ Unable to find work or claim benefits

Lessons learned

▪ Load unsteady so obvious risk

▪ Single poor decision with consequences for both driver and colleague, neither of whom acted appropriately

▪ Unsafe help is no help at all

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Case #3 – failings caused own injuries

▪ Demolition of roof – Mr B injured

▪ Plan was to mechanically demolish roof when Mr B’s son, partner and planner of works, returned from leave

▪ Further RAMS required prior to demolition happening

▪ Mr B decided to undertake demolition himself to make progress without son present

▪ Injured when corners timber supports removed, causing collapse

▪ Suffered fractured vertebrae. Returned on light duties.

▪ Guilty plea (CDM Regs) - £500 fine, £868.90 costs

Lessons learned

▪ Making unsafe progress, cutting corners - no RAMS or planning

▪ Effect on the family-ran business?

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What maximum sentence can an individual receive for a health and safety offence? Crown Court

A. A fine limited to £5,000

B. A fine limited to £20,000

C. An unlimited fine

D. Imprisonment for up to 3 months

E. Imprisonment for up to 2 years

F. An unlimited fine and up to 2 years imprisonment

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The maximum prison sentence for manslaughter in the workplace is

A. 6 months

B. 2 years

C. 5 years

D. 10 years

E. Life

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Sentencing of H&S offences made simple

Individuals can be fined an unlimited amount and/or sent to prison for 2 years

Ordered to pay unlimited prosecution costs

Organisations can be fined an unlimited amount

If fatal – fine will seldom be less than £100,000

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Sentencing in 2014 – two very important cases

▪ Network Rail Limited and Sellafield Limited

▪ Court of Appeal

▪ Mid Staffordshire NHS Foundation Trust

▪ Mr. Justice Haddon-Cave

▪ Sentencing Guidelines review consultation paper – watch out fines are likely to increase!

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Manchester CC:£15,000 – litter picker struck by car

Cirencester BC:£12,000 – groundsman thrown off mower

Gateshead BC :£40,000 – tree feller injured when tree fell on railway track

Topcon Construction : £10,000 – fractured ankle from falling concrete pillar (with £10,000 comp order)

Recent reports

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Nursing home (in liquidation)- £5,000 for scalds to elderly resident who then died

Sterecycle explosion : £500,000

Construction company - £150,000 dumper truck roll over plus £28,000 costs

Construction company - £525,000 telehandler toppled over plus £90,000 costs (trial)

Others in court - fatal

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Publicity

Loss of reputation

Staff morale

Disruption of services

Costs

Administration

Insurance

Time spent with lawyers

FFI scheme

Other penalties?

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Can we get our message through?


Lunch


An Inspector calls – how to react and respond Anne Bartlett Health and Wellness Senior Consultant CGI

AN INSPECTOR CALLS SESSION 5

Fee for Intervention (FFI)

• Cost recovery.

• £124 per hour for all time on site plus follow-up.

• Only applies if a material breach is identified.

• Right of appeal.

What is a Material Breach?

A material breach is when in the opinion of an Inspector, there is or has been a contravention of Health and Safety law that requires them to issue notice in writing of that opinion.

Written notification must include:-

• Which law that has been contravened

• Reason for the opinion

• Notification that a fee is payable.

No breach – no fee

Avoid by:-

• Ensuring robust systems are in place to manage risks.

• Monitoring and reviewing these systems to ensure that what you think happens actually happens in practice.

Unannounced Inspection

• Less likely now than in the past as less emphasis on proactive work.

• Targeted at high risk sectors, such as refurbishment in construction, waste.

• May be based on intelligence.

Useful as see businesses as they really are.

HSE Inspector

• Has warrant so automatic right of entry.

• Reception staff should be aware.

• Senior manager will be asked to attend.

• Make staff available if possible.

• Be honest.

• Don’t waste time.

Investigation

• Usually following RIDDOR report, so keep all documents relating to these. The more informative the RIDDOR report the less likely it is to be investigated.

• Triggered by intelligence e.g. from police, GP or hospital.

• Usually notified in advance

Preparation

• Ask what is required.

• Make sure key staff are available if needed.

• Arrange private room

• Make sure key documents are available, with facility to make copies if needed. Include any investigation report and details of remedial action taken.

Don’t

• Try to control events.

• Waste time.

• Try to conceal information

• Try to intimidate or persuade inspector not to implement FFI.

At the end of inspection/investigation

You will:-

• Be told the findings

• Understand what actions are required on your part.

• Understand what further actions may be taken by the Inspector.

• Know the timeframe for actions.

Outcome 1 Remedial action

Inspector must be satisfied that any material breaches identified will be rectified and harm will not result.

Means of achieving this:-

• Instant Visit Report

• Improvement Notice

• Prohibition Notice

Outcome 2: Prosecution

Depending on the extent of the breach and the degree of harm caused.

Involves:

• Evidence gathering/witness statements

• Prosecution report.

• Invitation to PACE interview.

• Approval by Senior HSE Manager.

Outcomes

• Decided by reference to the Enforcement Management model (EMM)

• In line with the Enforcement Policy Statement.

Costs

• FFI applies up to the time charges are laid in the Magistrates Court.

• Court costs apply only to the period after charges are laid, including time spent at Court, so will be lower than in the past.

• FFI paid may be taken into account when determining costs


Reliability analysis (to include workshop/ breakout session) Crispin Kenyon Partner Weightmans LLP

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Code for Crown Prosecutors

▪ Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.

▪ They must consider what the defence case may be, and how it is likely to affect the prospects of conviction.

▪ A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

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Evidential stage

▪ It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

▪ This is a different test from the one that the criminal courts themselves must apply.

▪ A court may only convict if it is sure that the defendant is guilty.

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Evidential stage

▪ Can the evidence be used in court?

▪ Is the evidence reliable?

▪ Is the evidence credible?

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Public interest stage

▪ A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour

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Public interest stage

▪ How serious is the offence?

▪ Level of culpability

▪ Circumstances of harm to any victim

▪ Proportionality

▪ Age of suspect – under 18?

▪ Impact on the community


Tea


Interview under caution Crispin Kenyon Partner Weightmans LLP Anne Bartlett Health and Wellness Senior Consultant CGI

INTERVIEW UNDER CAUTION SESSION 6

Who is cautioned?

• Anyone who is suspected of an offence under criminal (Health and Safety) law.

• May happen at any time during an investigation or site inspection.

• Usually pre-arranged interview at HSE premises

Police and Criminal Evidence Act

PACE 1984

• Covers powers and duties of the police but also rights of suspects and the admissibility of evidence.

• 7 Codes of Practice including Code E on audio recording interviews with suspects.

Purpose of a PACE interview

• May provide important evidence

• May provide information re further lines of enquiry

• May provide relevant information to be considered in the prosecution decision.

• Provides fair opportunity for a potential defendant to answer the allegations against them and give their own account.

Invitation

• Should explain what offences the company or individual is suspected of.

• Broad areas of questioning

• Who should attend.

• Advisability of legal advice

• Practicalities such as date and time.

Do I have to attend if invited ?

Options available

• Refuse

• Ask for further information, then refuse

• Send written representations

• Attend but refuse to say anything

• Attend but simply read out a prepared statement

• Attend and answer questions.

Process

Present:

• 2 officers from HSE

• Potential defendant and legal advisor.

Designated room

• Tape recording equipment.

• Clock

• Documents

Caution

You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.

Person cautioned must be asked if they understand the caution.

Process

• Identity (and letter of authorisation if applicable) checked.

• CD recorder turned on and newly unwrapped discs inserted. Written record also started.

• Date, time and venue stated. All present identify themselves for the recording.

• Caution read.

Process (continued)

• Questioning

• Any documents produced are identified for the recording.

• Breaks can be taken at any time but the time has to be stated before recording stops.

• Recommencement requires reminder of the caution.

• At end, asked whether anything to add.

Conclusion

3 Discs ejected.

• One sealed for safe custody – placed in evidence store.

• Working copy – may be sent for transcription

• Copy for potential defendant.

• Added to Prosecution report for Approval

QUESTIONS?


Review and recap: open forum Crispin Kenyon Partner Weightmans LLP Anne Bartlett Health and Wellness Senior Consultant CGI

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Key Contact

Crispin Kenyon

Partner

DDI: 0207 822 7151

[email protected]

Ranked in Chambers & Partners 2015 and Legal 500 2014

mailto:[email protected]


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