Workplace Accident Investigation: Liability and Preventive Measures

1. Delivering the Promises Welcome

2. Investigation of accidents • Graham Ward LLB(Hons) ACII ACILA • Regional Director (South) • Complex Loss

3. This is taking staged accidents a little far!

4. One way of getting into difficult corners

5. What gas canister?

6. I can just stretch round here……

7. Is that the broadband cable?

8. Where do I go from here?

9. Accidents - 2013 • Workplace accidents - 646,000 • Over 3 days absence - 231,000 • Over 7 days absence - 175,000 • What does this tell us?

10. Accidents 2013 • Of the over 7 day absences 58,515 were reported under RIDDOR • There were also 148 fatal accidents at work

11. Time Lost accidents

12. Lost Time accidents • Over half the fatal injuries to workers were of three kinds: falls from height; contact with moving machinery; and being struck by a vehicle; • An estimated three million working days were lost due to handling injuries and slips & trips

13. RIDDOR Reporting of Injuries Diseases Dangerous Occurrences Regulations 2013 What must be reported; All deaths to workers and non-workers, with the exception of suicides, must be reported if they arise from a work-related accident, including an act of physical violence to a worker.

14. RIDDOR – Regulation 4 • fractures, except fingers, thumbs and toes • amputations • any injury likely to lead to permanent loss of sight or reduction in sight • any crush injury to the head or torso causing damage to the brain or internal organ • serious burns (including scalding) which: • covers more than 10% of the body • causes damage to the eyes, respiratory system or other vital organs

15. RIDDOR – Regulation 4 • any scalping requiring hospital treatment • any loss of consciousness caused by head injury or asphyxia • any other injury arising from working in an enclosed space which: • leads to hypothermia or heat-induced illness • requires resuscitation or admittance to hospital for more than 24 hours

16. RIDDOR – 7 day rule • Accidents must be reported where; • employee or self-employed is away from work, or unable to perform their normal duties for more than seven consecutive days • period does not include the day of the accident, • does include weekends and rest days. • report must be made within 15 days of the accident

17. Work Accidents • Why do insurers investigate accidents at work? • To understand why an accident has occurred • To ensure that all information is collected • To prevent a recurrence • To act as a deterrent • To protect their client’s interests • To save themselves money

18. Scenario • Metal bashing business of 20 employees making steel sections for the car industry - 17 year old suffering an injury to his eye when a section of metal came off whilst he was grinding the edge of the metal in the fabrication shop. Hospitalised, possible partial loss of sight in one eye. • I am instructed 5 days after the incident to investigate the accident and whether there is a liability upon the company

19. Immediate Issues • Age of the individual • Lack of eye protection? • Lack of supervision? • Maintenance? • Training? • Is it RIDDOR reportable? Was it reported? • Is he still in hospital? • What is the culture like – accidents waiting to happen?

20. Investigation • Information gathering • Employers Liability Claim • CV • Contract • Application form • medical questionnaire

21. Investigation (Cont) • Contemporaneous Documents; • Accident Book entries for whole of site, not just the incident and going back 12 months – anything similar? • RIDDOR Report • external H&S consultants • statements already taken/provided locally (more about that later)

22. Investigation • Training Documents - injured party’s training file • confirmation of “on the job” training – statement from trainer to show this – specific to the use of the grinder • Details of any other training attended - course content –proof of attendance meaningless w/o showing relevance of the actual course • Generic Training documents/H and S documents

23. Investigation • Mentoring – in view of his age • Workspace – what was his workstation like? Did he have to work in cramped conditions? • Photos and CCTV – Pre-accident and post-accident – was there anything of relevance, were photos taken post accident? • Risk Assessments – were any assessments drawn up for this operation?

24. Investigation • Protection • Was eye protection provided? • Was it worn? Always? • Is there an enforcement regime? • Has the regime ever been set in motion – ie is it robust? • What is the position throughout the workplace? • Risk assessment?

25. Investigation • Machinery • Inspection of the grinder. Was the grinding wheel/disc defective? • Important to preserve evidence and ensure not disposed of. • Maintenance records • Any issues with the workbench or the vice in which the metal was held

26. Investigation • Metal being worked on – where was this sourced from? Was this defective? Was this as supplied/described – steel is sometimes supplied of an inferior quality and is more brittle, fracturing easily. • Secure evidence as there may be a prospect of recovery. • We may instruct forensics to examine the material or machinery

27. Investigation • HSE investigation • Have they been to site? • What sort of a relationship does the company have? Have they made a call to the HSE? • Have any employees/management been cautioned/interviewed under PACE

28. Investigation • Immediate aftermath of accident • Who found the IP? • What treatment did he receive? Eye wash/eye bath • First aider? Statement • Taken to hospital – how quickly – ambulance or private car?

29. Investigation • Photographs • Need to be in focus • Relevant • Preferrably timed and tagged or mounted and tagged • I will take my own photos and/or video of the operation, but contemporaneous photos show how it was at the time not a week or two later, when all tidied up.

30. Investigation • General Site issues • As part of the investigation look at the site generally – much information can be gleaned from the remainder of the site • Is it tidy or have they just tidied up the accident area? • Are others wearing eye protection away from this area? • How is similar work being carried out elsewhere?

31. Investigation • Statement taking • Page 1 – The cover sheet: • Party – will primarily be completed as the Defendant. • Witness – name of the person who is giving the statement. • Statement number – state whether it is the 1st, 2nd etc statement taken from the witness.

32. Investigation • Statements (Cont) • Exhibits – these should be the initials of the witness and numbered consecutively to correlate with the order in which they have been identified in the statement. E.g. JN1, JN2 • Date – the date on which the statement was taken

33. Investigation • Statement (Cont) • Number each new paragraph. • Number each page. • The use of numbers should be in figures not words. • Any alterations initialled by the witness. • Every page signed. • Incorporate exhibits with initials of the witness and numerically

34. Investigation • Statements (Cont) • STATEMENT OF TRUTH – I believe that the facts stated in this witness statement are true. • What does it mean and why do we need to explain its importance?

35. Investigation • Statements – Why are they important? • Contemporaneous – change of mind later? • Shows a state of affairs as it was at the time • Could be simple and negative – “I saw nothing” • Could link to other evidence – photos, videos • Could relate to training • Enables us to assess if a person is believable • Enables us to assess their character

36. Investigation • Statements – Who should we interview? • Direct witnesses • Indirect witnesses – first aiders etc attended after the event, where was the IP relative to the machine? • Supervisor – what instructions were given, what training? • Health and Safety Officer – training • Other parties – negative statements, especially in a litigious workplace

37. Investigations • The Interview – How I would do it. • Comfortable surroundings. Inasmuch as this is possible, on site • Identify myself. Explain who I represent and why I am involved • Engage in general conversation to put them at ease. • Don’t be over familiar. Be aware of my professional responsibilities, but try to understand their level. • Allow them to have someone present if they ask for it. • Non-english speakers – creates issues, use an interpreter or member of the family • Remember this is not an interrogation. They are guilty of nothing and simply know something about the incident • Give them confidence and encourage them to talk. They could divulge something you hadn’t considered or been aware of.

38. Investigation • Interview – How I would do it (cont) • Keep them on a logical train of thought. • Don’t lead the witness. Ask open questions, which require a narrative response, then stop them to seek clarification or to catch up with your notes. • Be precise. Avoid ambiguity, or opinion e.g. “in my view” • Avoid Jargon - at least explain the first use in the statement • Use their words whenever possible; but unless they relate to words spoken at the time/after the incident, do not include expletives. • Don’t be selective. If it’s relevant to the issues of the case but to the detriment of the party you are representing, it must still go in. Better to know now, than at an expensive Trial.

39. Investigation • Interview – How I would do it (cont) • Go back over any point that doesn’t make sense or isn’t clear. • Rephrase questions if the answer is unconvincing • If evidence conflicts with others, consider any motivation. • If they then convince you, you may need to go back to the others to re-question them. “Seek clarification” don’t refer to conflict. • On completion, invite them to make any comment they wish and ask if ‘I’ have covered everything? They may disclose more • Explain you will read the statement back to them but at any time they can stop you to add/delete/amend anything they wish before you will ask them to sign the statement to validate its contents. • Invite them to initial all alterations and sign each page. Countersigned by their representative/adult/translator if relevant.

40. Issues Arising • Management of Health and Safety at Work Regulations 1999 – S19 • responsibility to ensure that young people (under 18) employed by them are not exposed to risk due to: • lack of experience • being unaware of existing or potential risks and/or • lack of maturity

41. Issues Arising • The Employer must consider; • the layout of the workplace • the physical, biological and chemical agents they will be exposed to • how they will handle work equipment • how the work and processes are organised • the extent of health and safety training needed • risks from particular agents, processes and work

42. Issues Arising • Management of Health and Safety at Work Regulations 1999 • S3(1) Every employer shall make a suitable and sufficient assessment of— • (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work;

43. Issues Arising • Capabilities and training • S13 • (1) Every employer shall, in entrusting tasks to his employees, take into account their capabilities as regards health and safety. • (2) Every employer shall ensure that his employees are provided with adequate health and safety training; • (a) on their being recruited into the employer’s undertaking; and • (b) on their being exposed to new or increased risks

44. Issues Arising • Provision and Use of Work Equipment Regulations 1998 • Suitability of work equipment – S4 • Work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. • Regard to the working conditions and to the risks to the health and safety of persons which exist • Work equipment is used only for operations for which, and under conditions for which, it is suitable.

45. Issues Arising • PUWER • S5 - Maintenance • Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. • Stark v Post Office (2000) – strict liability • Enterprise and Regulatory Reform Act 2013 – S69 – claims now effectively have to be advanced in negligence

46. Issues Arising • PUWER • S6 - Inspection • Work equipment exposed to conditions causing deterioration should be inspected at suitable intervals • So that any deterioration can be detected and remedied • That inspection shall be recorded

47. Issues Arising • PUWER • S8 – Information and Instruction • Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment

48. Issues Arising • PUWER • S9 – Training • Employees should be provided with adequate training in methods to be adopted • Supervisors also need to be adequately trained

49. Issues Arising • Personal Protective Equipment at Work Regulations 2002 • S4 Provision of PPE • suitable personal protective equipment is provided • Other means of prevention exhausted eg guarding, noise attenuation

50. Issues Arising • Personal Protective Equipment at Work Regulations 2002 • S5 Compatibility of personal protective equipment – where using two types of equipment • S6 Assessment of personal protective equipment – is it the right equipment? • S7 Maintenance and replacement of personal protective equipment • S9 Information, instruction and training • S10 Use of personal protective equipment – arguments of con neg if not worn