Legal Standpoint: Investigation objectives

and evidence priorities RISSB Major Rail Occurrence Forum

Michael Tooma

Partner – Head of Occupational Health, Safety and Security (Asia Pacific)

28 April 2015

2

1

How you frame the investigation will determine its outcome

2 Being transparent is deceptively dangerous

3

Look on the bright side, it might save some lives

Rethinking our approach to incident investigations

Identify

•People

•Premises

•Plant

•Substances

•Processes

Arrange

•Organisational structure

•Contractual Chain

•Chronology

Benchmark

•Policies

•Laws

•Codes

•Standards

Causation

• Identify event

• Identify High Potential

•Event causal analysis

•Trace cause to source

i A B C

Investigation

team

• conflict of

interest

• Expertise

Investigation

process

• Root cause

• What went

wrong?

• What went

right?

Set

up

Analysis

Avoiding investigation bias

Threat of litigation

Judging people for what should’ve been done

Hindsight bias

And… The full story rarely

emerges…..

Cherry-picking to fit narrative

Self-preservation

Protectionism

Subconsciously

Distorted truthStrategically

Distorted truth

Can be improved

through Just

culture

Requires

rethinking of

investigation

approach

Why don’t we learn the lessons from

disasters?

Rational decision-making

Model for existing analysis

Perfect Information

Infinite time

Information asymmetry

Time pressure

Ambiguity

Safe behavior based on rational

decision-making

Real World

Conflict of interest when gathering evidence

6

Factors weighing against full investigation Factors weighing for a full investigation

Elements of Proper Incident Investigation

7

Waiver of Legal Professional Privilege

8

Is the document privileged?

9

Incident No injury

outcome

What went right?

What went right?

What went right?

What went right?

What went right?

Near

Miss

What went

right?

Near Miss

What went right?Environment what if?

Near Miss

What went right?Environment What if?

Plant What if?

Near Miss

Why?Environment What if?

Plant What if?

Process What if?

Near Miss

What went right?Environment What if?

Plant What if?

Process What if?Operator What if?

What went right?

Near Miss

Environment What if?

Plant What if?

Process What if?Operator What if?

Consequences What if?

Questions and Discussion

17

18

International

19

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