After the accident

HSM DELIVERED a special two-hour webinar from leading health and safety law firm DAC Beachcroft, focussing on the legal lessons you need to learn in the aftermath of an accident in the workplace. The paid-for-content gave attendees a real insight into the importance of getting the response to an accident right, when to consider an accident investigation, and how the response and documents created in the immediate aftermath of an incident are frequently used against organisations in a prosecution. 

The webinar was presented by Mat Breakell, a partner and head of health and safety commercial solutions at DAC Beachcroft and Chris Baranowski who is also a partner and head of regulatory at DAC Beachcroft and while this is only a snapshot of what was discussed on the day, if this whets your appetite, for just £99+VAT you can obtain full access to this webinar at https://tinyurl.com/yus27hns.

The webinar kicked off by looking at managing the immediate aftermath of an accident. 

• Assess whether the emergency services are required

• Make sure the area is safe and everyone is accounted for

• Emergency services access/specialist team deployment

• Managing the site

• Contacting internal assistance

Mat points out that there is often a lot of hesitancy on when to call the emergency services and also whether they are required at all. He says, “Not calling Emergency Services properly can actually impact in sentencing at the end of the case. So when we talk about managing the immediate aftermath of an accident, even just thinking about who's calling 999 can be referenced in sentencing remarks at the end of the case by a judge.”

Throughout the webinar, a catalogue of legal cases are discussed by the experts so you can see where they went wrong. This is very useful as it is often by others' mistakes that we can learn and put processes into place to do things differently if you are ever in a similar position. We can not be certain how individuals will react in situation – however, we can put plans in place to ensure employees know what to do in the event of an accident.

Matt says, “In health and safety, we're very good at foreseeing risk, doing risk assessments and thinking about the work and then creating safe systems of work. But we're not always very good at doing a test of our internal systems to respond to an incident and for consultants thinking about how they can challenge their customers about a response in the event of a major incident and what sorts of systems are there in place.”

How an incident is managed at the time can become directly relevant to the judge at sentencing. A good example provided in this webinar was the Alton Towers case.

In his sentencing remarks of Merlin Attractions, who owned Alton Towers, His Honour Judge Michael Chambers Q.C. Stated: 'The injured passengers state that there appeared to be a delay before those members of staff on the ground appreciated the enormity and severity of what had happened. It then took time for some sort of scaffolding platform to be erected. It was 17 minutes before a 999 call was made. It was between four to five hours before all could be released and rescued.'

The judge imposed a huge £5 million fine – this was a massive fine for an organisation that had a turnover of £250 million in 2015. The fact that it took 17 minutes to call 999, gave the judge the perception that it wasn't being managed properly. 

Mat comments, “What we tend to find in criminal law is that perception is absolutely everything. Ultimately, we get to a trial we're asking a jury to perceive our organisation and our people as being competent. We want them to perceive our paperwork as being good and in order and detailed and suitable and sufficient. All phrases that we use on a daily basis, sometimes without realising that what we do on a day to day basis, although compliance lead, could be evidence in the event of an incident and thereafter, then thinking about the perception the jury have of the actual response and the judge of the response itself.”

After the accident

The webinar then moved on to look at starting and managing the investigation and what you should expect. There's going to be a focus on witnesses, there's going to be a focus on documents. And there's going to be potentially a lot of focus on experts.

On the point of experts, Chris says, “If there's an incident which has some mechanical potential cause to it, there's machinery involved or we're not quite sure of the precise mechanics of how it's happened, then it's a good case to say we should be getting an expert involved from day one, because the likelihood is the HSE will either bring with them, their own experts in that particular area from the outset.

“What we will don't want to do is miss out on some of the testing or examinations that have been undertaken by the HSE experts in particular, if they've altered things, moved things or tested things then that opportunity to undertake our own testing and measurements may have be lost. So it's crucial to consider that at an early stage and the HSE will will often expect companies to have an expert lined up and arrange for that expert to be present when their own expert is undertaking the testing and examinations on site. So it's not it's not something unusual – it is something that we think is crucial often to preserve an understanding of how that incident may have happened.”

The webinar gave the opportunity for those watching live to take part in polls and the results were discussed by the experts. One of these asked when you start taking statements? With the options being straight away, when witnesses are ready to speak with you and at a later stage. 

84% believed it was straight away with the rest opting for when the witness is ready. No one chose the third option.

On this, Chris said, "It's an interesting outcome there, I think there's there's an element of each one is probably the right answer. In terms of getting statements straight away the advantage of that is that it's fairly recent after the incident so it's more likely to contain accurate information from one perspective. Also, statements that are taken within minutes of the incident, are not going to be subject to legal privilege in the vast majority of cases.”

This led on to some interesting points about the dangers of witness evidence – which is opinion led rather than fact led. 

Mat put a real emphasis on documents and how important they are. He says, “Can't get over enough how important it is to make sure that if we have systems and processes and procedures in place, that we follow them and that we make sure that we're getting our teams to understand the importance of capturing that information at the time, completing risk assessments or work training records and permits to work. Today's compliance is tomorrow's evidence.”

There is a lot more information in this webinar than I have been able to cover here. It explored the importance of getting the response to an accident right, when to consider an accident investigation, and how the response and documents created in the immediate aftermath of an incident are frequently used against organisations in a prosecution. These experts provide clear lessons and advice from things that have gone wrong in the past and what you need to do in the aftermath of an accident. You can still benefit from this webinar for just £99+VAT at https://tinyurl.com/yus27hns.

For more information, visit www.dacbeachcroft.com