ENA SHE12 Major Incident H&S Aspects a Lawyer s perspective. Kevin Bridges Partner and Chartered Safety and Health Practitioner

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1 ENA SHE12 Major Incident H&S Aspects a Lawyer s perspective Kevin Bridges Partner and Chartered Safety and Health Practitioner

2 Implement an Incident Response Protocol Covering: - Escalating incidents internally - RIDDOR reporting - Accident investigations / internal s / reports - Managing requests for documents - HSE/Police interviews (voluntary, compulsory and PACE) - Communications with third parties (clients and media) - Notifying and communications with insurers - Appointing specialist regulatory criminal lawyers 2

3 Why Investigate Accidents? No express legal duty Reg 5 MHSWR: Duty on employer to: make and give effect to such arrangements as are appropriate. for the effective planning, organisation, control, monitoring and review of the preventive and protective measures ACoP and Guidance to MHSWR suggests need for investigation

4 Investigations A Good One Consider the mechanics of the incident factually Take and analyse witness statements, documents and photographs Identify / challenge inconsistencies, but do not speculate on them Identify gaps in evidence but do not fill them May require expert assistance Establish immediate, underlying and root causes based on evidence

5 Investigations Root Causes Chronology / timeline of events causation (immediate and root causes) Root causes Procedural: the process being followed Operational: human / behavioural failures Managerial: management failings Environmental: the physical environment Technical: engineering failures which led to the event

6 Investigations Underlying Consider: Procedural: Relevant standards legal / BS EN / industry; Risk assessments; Company policies based on what? Operational: Training and competency Managerial: Knowledge by whom / when Environmental: Copper theft Technical: Inspection and maintenance (quality, frequency & records)

7 Be aware of the Pitfalls - Documents Personal Injury Claims: Personal Injury pre-action protocol Lists the documents claimants should request before bringing a claim: Accident investigation report Particulars of negligence Criminal Investigation (HSE/Police etc): Duty to co-operate Section 20 HSWA powers PACE interviews account for findings

8 Investigation Reports Take care: Not to admit liability Not to blame individuals Not to shoot from the hip avoid speculation/opinion Keep it in draft and factual Avoid ambiguity, use clear language not jargon Take care when recording recommendations and conclusions Root causes or gold plating?

9 Dilemma! Balance Investigating root cause of accident and lessons learnt, so as to prevent a recurrence Against Making admissions of liability 9

10 Legal Privilege Privileged documents do not have to be disclosed to third parties Briefing lawyers for the purpose of obtaining legal advice? 10

11 Legal Privilege TEST: Dominant purpose was in contemplation of legal proceedings: a document which was produced with the dominant purpose of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation should be privileged and excluded from inspection 11

12 Do you have? Internal policy on accident investigations why do them? Protocol to follow exercising judgment What is the primary/dominant purpose of this particular investigation? Clear guidance on investigation techniques and writing reports immediate, underlying and root causes 12

13 Questions Kevin Bridges (Partner) Tel: Mobile:

14 Working hard to make it easier LONDON DUBAI BEIJING SHANGHAI HONG KONG SINGAPORE OTHER UK LOCATIONS: BIRMINGHAM EDINBURGH GLASGOW LEEDS MANCHESTER Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) and regulated by the Solicitors Regulation Authority. The word 'partner', used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who is a lawyer with equivalent standing and qualifications. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP's registered office: 30 Crown Place, London, EC2A 4ES, United Kingdom. We use 'Pinsent Masons' to refer to Pinsent Masons LLP and affiliated entities that practise under the name 'Pinsent Masons' or a name that incorporates those words. Reference to 'Pinsent Masons' is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. For important regulatory information please visit: Pinsent Masons LLP

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