Episode 1: What do I do if...I have to manage an accident in the work place? Part 1

00:00:04 David Lee, Host

Hello and welcome to Podcasts by Brodies, my name is David Lee and in this series we take an in depth look at some common and not so common questions and scenarios Brodies lawyers have faced over the years. In each episode, we talked to Brodies experts to hear their insights and experiences that allow them to take the right approach when they're asked that deceptively simple but often hugely complex question, “What do I do if?”

The focus in this part of the series is on health and safety and land and rural business.

And in this episode we hear from two health and safety experts, senior associate, Victoria Anderson and senior solicitor, Emma Dyson.

They will address a question no one wants to have to ask, but which everyone needs to be prepared for, "What do I do if I need to manage an accident at work?"

So Victoria, first of all, what do we mean by an accident at work? It can presumably cover many different scenarios, so can you give us a few?

00:01:07 Victoria Anderson, Senior Associate, Brodies LLP

I suppose the focus for discussion is not so much how do I manage the accident, but how do I manage the aftermathof the accident?

We are probably all sadly quite familiar with accidents at work be those ranging from minor incidents, to cut fingers, up to the serious end involving fatalities and it looks different in every single business depending on the nature of your business, the type of activity that you're undertaking. But the most common, generally in Health and Safetyterms, come from sectors such as construction or manufacture, where people are injured either by machinery or in the course of an operation. So your common ones are falls from height, either parts of the body coming into contact with moving or dangerous parts of machinery, so that involves factories, production lines, things like that.

But I think what we would really like to get across to those listening and to our clients is that it's not just the most serious accidents where you have to have a plan, it is very good opportunity and training to think about, even in the less serious circumstances where perhaps you're not going to be involved with health and safety regulators or the police, but all smaller incidents also need to be well managed internally because even small incidents can really shake a workforce up.

00:02:45 David Lee, Host

Ok so Emma, talking about that preparation that Victoria just touched on, what should a business do to prepare? What should they get in place? What systems should they have and why does it matter?

00:02:58 Emma Dyson, Senior Solicitor, Brodies LLP

You can't eradicate all risks of an accident happening in a workplace. Businesses will obviously have systems in place to keep people safe, things like risk assessments for example, but I think it's important to also still have in place where an accident has occurred, something like an emergency response protocol and somebody who is ultimately trained to step into the role of an incident manager if an accident does occur.

A good emergency response protocol will deal with all types of accidents, so dealing from relatively minor ones up to, , potentially very serious ones and fatalities. And the response protocol should be bespoke and it should be looking at the type of business that you have, the industry you're in, what kind of risks do exist. A good legal team will obviously be able to draft something bespoke to you on that with specific advice, particularly as well regarding who you should contact if an accident does take place and the specific regulators you might come across if an accident does take place.

As soon as an accident has taken place, then your immediate next step will be to consult your protocol. You might forget to contact important people such as your insurers in the immediate aftermath of an accident. And often after an accident, the environment will be chaotic and incredibly stressful for everyone involved. If you've got a good protocol in place immediately after, it will focus your mind on the next steps that you need to take, and provide you with a level of protection before you have the chance to actually investigate the accident yourself. In terms of keeping the situation calm, it also will help you to manage your employees to show that you're as controlled and calm as possible and give your employees reassurance that you're ultimately managing the situation.

00:04:57 David Lee, Host

OK, so Victoria, you've got all the processes in place as Emma's described there. Let's look at the reality of something actually does happen, the worst case scenario.

What is that immediate response? What should you be doing in the immediate aftermath of an accident? What about the scene? Preserving the accident scene? Making things safe? What are those first steps?

00:05:20 Victoria Anderson, Senior Associate, Brodies LLP

I have to caveat all of this by saying, almost every single accident will be different in some shape or form, to a previous accident you've had. It is very unusual to find two that are identical, so each business will have to react to the circumstances that they are presented with.

Now obviously the initial priority is care for the injured person. If we are dealing with a situation where the person has been injured but not fatally so, then you will want to instantly treat the person if possible.

If you have trained first aiders within your business, they need to be notified, brought to the scene and depending on the level of severity of the injury, you'll be assessing things like whether or not you need to contact the emergency services, whether that's an ambulance, in more serious circumstances that might require the fire brigade, if somebody is trapped.

Generally speaking, in terms of caring for the casualty, you will find that when speaking to the responders on the 999 call, they can offer fantastic advice in terms of what you should be doing. It is a bit of a judgment call, you can't go in all guns blazing and start trying to move things. Sometimes that can be detrimental to the person injured, depending on the circumstances. So you want to make sure that you've contacted the appropriate people, if that is the emergency services, sometimes it will be possible simply to administer first aid on site, get the person into a car and drive them to hospital that might be the quickest response.

You then have to look slightly further, something wider and consider whether there is anything about the scene that needs to be preserved, now, in serious incidents again the emergency responders on your 999 call will probably advise you whether or not pieces of equipment should be moved or should not be moved, that will primarily be for the health and safety of the casualty. But in a serious incident it's actually very important that you do not move things, you leave as much in place as you possibly can. The obvious caveat to that is if things have to be moved to allow access for the emergency services, then of course that will be permitted.

There are certain legal duties in respect to scene preservation and the police and/or the health and safety executive, if they are due to attend, can issue legal orders requiring you not to disturb a scene. Again, react to the circumstances with which you are presented but make sure you have somebody who's a central point of contacting your business. As Emma mentioned, your incident manager, that person will in effect be left standing at the scene. The casualty will leave site and they will have to take the next steps and that does involve contacting your insurers, contacting your legal team, but it also involves informing people internally within the business who need to know if a serious incident has occurred. That might be your senior management.

You will also want to have regard for the injured persons next of kin if they have on their HR file somebody who can be contacted in the event of an emergency. Either your HR team, if we're talking about a business big enough to have one of those, or somebody in office management or site management needs to have access to that material to be able to contact people to let them know something has happened. Often and fortunately casualties are regularly in a position to make that call themselves, but they might ask to have their mobile phone brought to them. For example, if it's not on their person. So, these are the initial considerations that you need to have.

00:09:19 David Lee, Host

And Victoria, presuming that you are allowed to remove things from the scene, you don't have to preserve it, what should your considerations be in in removing items or anything from the scene?

00:09:37 Victoria Anderson, Senior Associate, Brodies LLP

It's important to think about gathering as much evidence as you can, as close to the time of the accident. Memories fade, particularly following something that's been an unexpected or shocking incident. So you want to preserve physical evidence, now that might be pieces of machinery or work equipment that were somehow involved in the accident itself. Even if the police and or the health and safety regulator has been involved in inspecting that equipment already, remember that that's only one half of the story.

What we'll come on to look at in part two of this podcast is the potential for accidents at work to end up in a prosecution situation and if that happens to your business, you or your defence team will need access to the same evidence that the police and or the HSE have examined and they might want to make their own investigations of that so, it's really important to look at things like that.

You also want to look at the "stuff in the background" as we would call it. So things like the documentary evidence involved in the work task which will show the history leading up to how these people came to arrive in the circumstances that they did. That might be things like training records, risk assessments, safe systems of work, etcetera and the other thing which is hugely important in any accident circumstances is witness evidence, what did everybody see and hear? And you want to be in a position to be able to record that evidence.

So quite a good tip in the immediate aftermath is to get all of your witnesses, now that's your workforce, to gather somewhere where they are easily accessible for either the police if they wish to take statements and/or the health and safety executive but have them sitting somewhere where they can provide their own statements without wandering home at the end of the day and make sure you've got control of where people are going and know where people are.

00:11:45 David Lee, Host

OK so Emma, Victoria talked there a little bit about evidence maybe we can just build on that a little bit.

How important is it to get that kind of reliable evidence together, particularly if it might form part of a subsequent investigation?

And what about those different kinds of evidence that Victoria touched on a little bit there, the physical evidence and the witness evidence?

00:12:07 Emma Dyson, Senior Solicitor, Brodies LLP

The very first thing to remember is that when you're gathering the evidence, initially it will form part of an internal investigation for yourselves to understand potentially what caused this accident, but also that evidence is being gathered to potentially be available to a regulator later on. So although it's you internally gathering it, it's also looking at what might be gathered by others and as Victoria said, there's essentially two parts to that; there's the physical evidence and the witness evidence.

So again, physical evidence can be obtained immediately after the accident. It could be a physical object, a piece of machinery, it could also be things like photographs immediately after the accident, CCTV footage, as well as documents. The gathering of that physical evidence, as well as helping you to understand how the accident has happened, it will also be available to the regulator, if you can gather that evidence immediately after the accident it can also help build your legal case from the off. So if you have preserved the scene properly and gathered the correct evidence available to you, then your legal team can also see what's been available to the police or the HSE or the regulator and what they have or what they might have access to later on.

And again, witness evidence obviously will come from people who were direct eyewitnesses to the accident itself, but it can also come from anyone else that has any involvement in what's happened. So for example, if you have a health and safety director in your company, or a supervisor who might not have seen the accident themselves but could speak to different documents such as risk assessments, systems that were in place at the time, the training that the injured person has undertaken, that's really vital too.

Obviously it's important to make sure that you take witness statements as soon as possible after the accident to make sure that everybody has a fresh account of events in their mind. You also want to be sensitive about the fact that people might still be in shock, or they might need some time to process what they've seen, so you can always come back and take statements from them later.

Often, if police are the first people on the scene, they'll want to speak to the witnesses first, there's nothing wrong with that. You can allow them access to your witnesses before you speak to them first, but you can also be an advocate for your employees and say if you feel that that person is in shock and could probably benefit from some time.

When conducting your internal investigations, you are going to speak to witnesses yourself and a lot of the time you might not have been in that position before where you have had to conduct an investigation and take a witness statement. So, we would recommend involving your legal team as soon as possible because they understand the information that's required to defend a claim and the level of detail that's needed from a witness, they know how to take witness statements accurately. So for example, things like having your witness sign and date each page of their statement and allowing them to read it over and correct any mistakes they might have made. And if your witness has already spoken to the police, then there's no harm in asking them what the police asked them so that you can have a view of any particular areas of interest the police or regulator might be looking at.

00:15:25 David Lee, Host

OK, and you touched on this a little bit there Emma but what are those common mistakes that the legal team can help you with?

From your experience and the experience of the wider firm, what mistakes do organisations make in the aftermath of an accident that hampers the subsequent investigation, whether that's internal or internal and external?

00:15:48 Emma Dyson, Senior Solicitor, Brodies LLP

Yeah, there are common mistakes that we see time and time again and we have touched on some of those - things like disturbing the scene or providing too much information or documentation to police or authorities, maybe not understanding the limit of your regulators authority on site and other things like not retaining documents properly or keeping good records.

By good record keeping we mean obviously of the accident itself, but also of the systems in place prior to the accident, and that will ultimately assist you in proving that there were good systems in place and there is a culture of health and safety compliance within your company and that this incident was ultimately an anomaly.

And the general advice we give is to retain documents for three years or more, and this is because somebody has a statutory deadline of three years to raise a personal injury claim from the date of the accident, but that's only for personal injury claims. Health and safety investigations, and fatal accident inquiries have no statutory deadline and can take a long time.

So if you've got a good system in place to retain all of the documents for as long as you can, we that's something that we would encourage.

Another common mistake we tend to see is providing an internal report which has an opinion on the cause of the accident before a full investigation is taking place.

But ultimately I think the number one common mistake we tend to see, and that in the chaos after an accident people don't really turn their minds to, is the failure to take legal advice to set up legal privilege as soon as possible.

00:17:23 David Lee, Host

OK, and you've brought us nicely on to legal privilege there. So Victoria, when you're actually looking at documents after an accident, why is legal privilege important, and what advice would you give a client about legal privilege if the regulators and police are involved?

00:17:44 Victoria Anderson, Senior Associate, Brodies LLP

So legal privilege is one of the very few tools that a business who has encountered an accident at work has to try to protect itself.

I always find it very interesting chatting to clients because their biggest fear is usually all the police have arrived, that must mean we're in serious trouble and actually, from a workplace point of view, the police aren't actually your biggest problem. The HSE arguably have more power in that situation than the police do, and again, we'll talk about this a bit more, in part two of this podcast, but it comes down to the fact that the HSE can enter any premises they wish, if they believe that there is a risk to health and safety and that there might be evidence that they can obtain within those premises. The police, however, would require a warrant to do so in most circumstances.

So, what legal privilege does, in a nutshell, is it creates a barrier, a veil, around a certain class of material, and it's the one thing that the HSE cannot obtain from a company. So they very often will come to a company and say, "we expect you as a responsible employer, to have carried out an investigation following this accident, have you done so?" And nine times out of ten the answer is, "yes, of course we have, we are responsible and we understand our duties." And they say "OK, could we have a copy of that please?" Now that to me and I always say to a client - the alarm bells should be ringing loud at that point.

If you have in the immediate aftermath of an accident, contacted your legal team and have them help you set up a legally privileged accident investigation, then that investigation report is not recoverable by the HSE. It is a very powerful tool because what we have seen in the health and safety industry since the big oil and gas disasters in the 1980s and 90s, we saw the health and safety industry decide that the best way to tackle it was to find a root cause analysis - "what has gone wrong here and why?" And what tends to happen with certain training systems, is that a company's health and safety team will swing into action immediately following an accident and they will produce a report, sometimes very quickly, which concludes what they believe the cause of the accident has been.

Now often those reports are excellent, but if they express an opinion which could in some way implicate the company as having had wrongdoing, it's important to take pause and to test internally whether the conclusions of that report are correct.

Has it been an assumption? Has there been enough time to actually establish the evidence to reach that conclusion? Because if it's not, and if it's not the subject of legal privilege, what's going to happen is the health and safety executive or other health and safety regulator will seize a copy of that report and they will use that as the basis of a criminal prosecution, potentially against the company.

So legal privilege is the one thing that stops the HSE having access to your internal investigation report. It can be a little bit tricky, we'll not go into the sort of ins and outs of it on this podcast, but the important thing to remember is two fold. One, it has to be established by a lawyer and two, it is not retrospective. So if you forget to contact your legal team at the outset, they cannot come in at a later date and extend legal privilege to a document which is already in existence.

So it has to have been created after the accident, and it has to have been requested by you legal team. Those are the two really important points to be aware of. There are other, more delicate details that we will cover with clients as and as and when needed, but always bear that in mind.

00:22:00 David Lee, Host

OK, and finally, we talked earlier on about having this responsible person to coordinate the business response to any accident or incident who typically might not be in the business. What kind of training do they need to be able to respond appropriately in these situations?

00:22:21 Victoria Anderson, Senior Associate, Brodies LLP

Again, it depends on the size of your organisation. So if you work within an organisation that has a dedicated health and safety team, then most often it will be a member of that health and safety team who will carry out any investigation.

They will act as the point of contact for the health and safety executive, which is very important because you only want one central point of contact. That keeps everything much clearer and avoids unnecessary delays or duplication of work in terms of requests being made by the regulator if they're asking for specific pieces of information. If everything is being channeled through one person, then life is generally a bit easier to manage.

There's no specific training required of the person, and I think that's an important thing to highlight, but if possible, you would want somebody who understands the health and safety legislative background and who would understand what documentation can and cannot be requested by your health and safety regulator.

It's important that the person who's appointed is at least a sort of middle management level. I would say the reason for that being they need to have the authority within the business to have access to certain documentation, they need to know where certain documentation will be stored and they also need to have a direct reporting line to senior management and/or the board of directors, depending on the company's organization.

The only thing that I would say, as something to be aware of, or a bit of a red flag to avoid, would be making sure that whoever is appointed is not involved in the direct line management of the individual who has been injured. The reason for that is that as the direct line manager and or supervisor, they are potentially going to be asked to provide a witness statement themselves at some point by the regulator and or the police depending on the circumstances. That witness statement might be very straightforward, it might only be to confirm the person employment, their history, their level of training, etcetera. But when we take a step back and we look at the potentials for prosecution and why we are investigating this accident to prevent re-occurrence, you don't want any individual witnesses knowledge of events tainted by having been involved in an investigation, after the fact that has supplemented their knowledge as it was at the time that the accident actually occurred.

00:25:01 David Lee, Host

OK, thank you very much to Victoria Anderson and to Emma Dyson for some terrific advice and insights there. This is just part one of 'What do I do if I need to manage an accident at work?'

Listen out for part two which covers how to deal with the emergency services, the regulators, the media and more.

You've been listening to Podcasts by Brodies, where some of the country's leading lawyers share their Enlightened Thinking about the issues and developments having an impact on the legal sector and what they might mean for organisations, businesses and individuals across the various sectors of the UK economy.

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