Monday, 22 April 2013

Dealing with serious accidents



 
In the events industry the risk of a serious accident can never be discounted. 2013 will bring unprecedented changes in the way events are regulated by enforcement agencies so responsible boards should be scrutinising their arrangements to deal with the legal consequences of a crisis of this nature

. This update revisits the key essentials for preparing to handle such a situation.

An organisation’s response to a serious accident in the first few hours can often determine how well an organisation or those individuals implicated come out of it. What is done cannot be undone, but failing to manage the aftermath professionally can make the difference between a controlled crisis and an uncontrolled disaster.

Due to the nature of the events business, event managers on a day to day basis deal with compensation claims for relatively minor injuries and the mistake that is often made is to gear up to deal with a civil law suit. Civil claims, however large, are by definition, limited by insurance cover and will almost certainly come down to an agreed out of court settlement which could include a confidentiality clause to limit reputational damage. In the event of a serious accident the potential claimant is in no position to begin legal proceedings, so other than a timely call to the insurance company, that issue can be dealt with later. Crisis managers would be better to focus on the prospect of the potential for unlimited fines and, in very serious situations, prosecution of individuals accompanied by unfavourable exposure in the media and on social media platforms.

The authorities may respond quickly and will often, in a matter of only hours, decide whether or not to pursue criminal proceedings. In the event of a fatality (or sometimes a serious injury) the police will send a scene of crime officer to determine whether or not the death was an accident or a crime in the sense that it involved foul play. Having established that it is a genuine work related accident (though not the cause) this still leaves the option of a police prosecution for manslaughter against an individual or the corporation
1.

Recent updates have covered the HSE’s intention to involve itself directly in event construction and so they could be the lead enforcement agency as well as the local authority in whose jurisdiction the event falls. It must be remembered that the fire

authorities have enforcement powers and would be involved in an incident that was related to fire safety.

First Response



It goes without saying that the welfare of the injured party and those directly involved must be catered for. Harsh as it may seem however, someone has to take a step back and begin to assess and prepare for the legal and reputational consequences that may follow.

The powers of the authorities when it comes to accident investigation are broadly similar so I will cover them together. It is worth noting however that the involvement of the police in a manslaughter investigation is likely to be very intrusive and disruptive and could lead to arrests (a power that the ‘civilian’ agencies do not have).

The first order of business is for duty staff to recognise that this is a major incident that cannot be handled by the event team alone and requires a company level response which must include obtaining professional legal advice.

The investigation



It is vital that those involved carry out their own investigation as soon as it is practical to do so. Events are by their nature transient and key witnesses may be hard to trace later so obtaining their details must begin immediately. The first priority is to establish the facts of the accident.

Happily first aiders have little to do on a day to day basis but when they are confronted with a serious accident they are sometimes prone to speculation; thus a very painful leg twisted out of position becomes ‘a break’. Medical details need to be confirmed by medical professionals at the point of treatment not by first aiders who lack facilities such as X-Ray scanners. A ‘fall from 3m’ may actually have been 2m so someone needs to measure it to confirm. After a delay, data protection concerns may get in the way of establishing the facts so the company needs to act fast to obtain this data. Record the scene with video and stills, take measurements and make comprehensive notes or use a digital voice recorder.

The interview process



The authorities are likely to want to interview individuals and can do so either as ‘witnesses’ or ‘suspects’. The first task is to find out who they wish to interview and if possible in which category. Before a witness interview you are allowed to brief the individual about the likely format and reassure them that the questions they will be asked are just intended to help detail the events in question. You are not allowed to coach them in how to answer the questions. A colleague can sit with them if it makes

them less apprehensive. The interviewee is allowed to ask for a written copy of their statement at the end of the interview although it will be their property not the employer’s. During such an interview they cannot incriminate themselves but can incriminate others including the employer.

If during an interview the authorities form the view that the interviewee is now a suspect or they have decided that an individual is a suspect from the outset they will be cautioned. If anyone is interviewed under caution they will be formerly ‘cautioned’ to advise them of their rights
2. They are entitled to legal representation at the interview which should be separate to the legal representation for the employer because of the potential for conflict of interest. Be under no illusions. Health and safety law is criminal law and anyone interviewed under caution in these circumstances is a suspect in a criminal investigation with all that this portends. The interviewer will be trying to secure a conviction and will be well trained in the art of getting interviewees to reveal evidence that will incriminate them or others. It is vital that they have legal representation.

If it is the company itself that is the suspect then the authorities will ask to interview an individual, probably a senior manager to represent the organisation. They will be cautioned but in these circumstances it is the company that is the suspect rather than the individual.

It follows that major incident plans must include the ability to obtain relevant legal advice quickly.

Organisations often make the mistake of leaving the interviews to the authorities. It will be an important part of the response for an organisation to conduct its own interviews of staff and witnesses to assist with its investigation. An employer has no powers to compel employees and others to be interviewed however employees have a legal duty to cooperate with reasonable requests made by an employer on health and safety issues.

There is a detailed article on the techniques police may use to gain information in interviews under caution at www.healthandsafetyatwork.com/hsw/content/talking-out-turn.

The paper trail



The police and other enforcement authorities have powers to demand documents as evidence and this could be extended to computers and hard drives on which they are stored. When dealing with these requests;

 filter all requests for documentation to a single point of contact

 

 make sure that the agency has the power to take the documents requested and that documents/information requested is not protected by legal privilege (see below)

 provide only what is requested, do not simply hand over everything

 keep copies and make a record of all requests.

Legal Privilege



A organisation’s own lawyers will request to see documentation to assess the best way to defend against criminal proceedings. Communications between a lawyer and client are legally privileged and need not be disclosed. Organisations should anticipate which documents may fall into this category and make sure that they are protected before they are seized by the authorities.

This was the subject of an earlier update and a detailed explanation is still available on the X-Venture blog site.

Conflicts of interest



Event management is about teamwork and as event managers we are naturally disposed towards cooperation which is essential for good risk management. It must be recognised however, that in the instance of a serious accident with the potential for prosecution, the venue, organiser, exhibitors contractors and individual employees involved will have competing and conflicting interests not least a strong desire for the outcome of the investigation by the authorities to find that other parties were culpable. It stands to reason that a legal defence will be a lot stronger if all parties involved cooperate, however in the febrile atmosphere of a criminal investigation it is quite likely that this cooperation will break apart. If individuals are being interviewed under caution they will rightly prioritise their own defence over that of their employer or any other individual or company. Organisations must recognise this. There is no simple way of dealing with this however ownership of information, establishing the facts of the case and keeping up to date with the progress of the official investigation is a key element of managing the company’s defence.

How to prepare



It stands to reason that an organisation with a robust health and safety policy and event planning processes centred on risk assessment, which is diligently followed by competent event managers who have received health and safety training is less likely to find itself compromised. A health and safety file should be compiled for every event with key health and safety documentation which will be crucial to a legal defence.

Being on the receiving end of a criminal investigation is likely to be unnerving. In preparing to deal with it there is no substitute for scenario based training even to the point of conducting mock interviews under caution.

These circumstances are fortunately rare but in the events industry the risk of a serious accident can never be discounted. 2013 will bring unprecedented changes in the way events are regulated by enforcement agencies so responsible boards should be scrutinising their arrangements to deal with a crisis of this nature.

Notes

1. The UK Corporate Manslaughter and Corporate Homicide Act facilitates the prosecution of a company following a fatality. (the Corporate Homicide Act is the Scottish law)

A new offence will have been committed if the way in which the company’s activities are managed;

 causes a person’s death and

 amounts to a gross breach of negligence of a relevant duty owed by the organisation to the individual

It does not define what is meant by ‘management failure’ but can be broadly interpreted as systemic failures in the system where standards have fallen far below what can reasonably be expected of an organisation in the circumstances.

Gross Negligence Manslaughter is brought against individuals for a breach of duty which causes death

2. Caution wording in England and Wales is as follows
: "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." It is not the same in Scotland where an adverse inference cannot be drawn from a suspects failure to answer a question as it can in England and Wales

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