Delivering the Promises

Welcome

Investigation of accidents

Graham Ward LLB(Hons) ACII ACILA

Regional Director (South)

Complex Loss

This is taking staged accidents a little far!

One way of getting into difficult corners

What gas canister?

I can just stretch round here……

Is that the broadband cable?

Where do I go from here?

Accidents - 2013

Workplace accidents - 646,000

Over 3 days absence - 231,000

Over 7 days absence - 175,000

What does this tell us?

Accidents 2013

Of the over 7 day absences 58,515 were reported under RIDDOR

There were also 148 fatal accidents at work

Time Lost accidents

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

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.

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

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

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

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

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

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?

Investigation

Information gathering

Employers Liability Claim • CV• Contract• Application form• medical questionnaire

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)

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

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?

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?

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

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

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

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?

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.

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?

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.

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

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

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?

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

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

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.

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.

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.

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

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

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;

Issues Arising

Capabilities and trainingS13

(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

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.

Issues Arising

PUWERS5 - 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

Issues Arising

PUWERS6 - 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

Issues Arising

PUWERS8 – 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

Issues Arising

PUWERS9 – Training• Employees should be provided with adequate

training in methods to be adopted• Supervisors also need to be adequately trained

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

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

Contributory Negligence

We consider each case on its merits, but looking for;

• Training/instruction• Length of time on job• Knowledge of risk• Position – supervisor?• Ignoring warnings?• Provided with protective equipment?• Previous failings/warnings?

Contributory Negligence - Examples

h Robb-v-Salamis (M&I) Ltd (2006) h Robb was in accommodation on an offshore

platform, equipped with two tier bunk beds with removable ladders providing access to the top bunk.

h It was accepted that employees frequently moved the ladders and when the claimant went to descend from the top bunk, the ladders gave way and he fell, sustaining personal injury.

Contributory Negligence - Examples

h Robb-v-Salamis (M&I) Ltd (2006) (Cont)h The Defendant was held in breach of Regulations

4 and 20 0f PUWER. h House of Lords held that the claimant knew of the

risk and should have checked that the ladders were secure. He was held to have been contributorily negligent for his injuries and damages were reduced by ??%.

Contributory Negligence - Examples

h Sherlock-v-Chester City Council (2004). h Sherlock lost his thumb and index finger whilst

using a circular saw provided by his employer. No risk assessment had been carried out and the employer was held in breach of Regulation 3(1) of the Management of Health & Safety at Work Regulations 1999.

h There were also breaches of Regulations 8 and 9 of PUWER 98. The Court of Appeal held that these breaches were not merely technical, but they were a cause of the accident.

Contributory Negligence - Examples

h Sherlock-v-Chester City Council (2004) (Cont) h A proper risk assessment, communicated to

employees, would have reminded the claimant of the need for additional safety measures and extreme care whilst operating dangerous equipment.

h On the available evidence, the employee was held to be ??% contributorily negligence. Lord Justice Latham stated it was not a momentary lapse in concentration but a conscious acceptance of an obvious risk by an experienced tradesman.

Contributory Negligence - Examples

h D Milstead -v- Wessex Roofline Ltd (2005) h The claimant was employed by the defendant by a

fitter of UPVC cladding and fascias. He was working at a house with a trainee, who failed to foot the ladder. The Claimant was the senior person on site and had instructed the trainee to foot the ladder

h The defendant failed to demonstrate that they had done everything possible to instruct and train their employees and there was finding of ??% contributory negligence.

Contributory Negligence - Examples

h Rita Burgess -v- Plymouth City Council (2005) h Burgess was employed by Plymouth CC as a

school cleaner, working after hours, when all pupils had gone home. She tripped and fell on a plastic lunch box container, which had been left on the floor.

h There was a system in place at the school where containers were stored away at the end of the day but, for unknown reasons, this one container had been left on the floor.

Contributory Negligence - Examples

h Rita Burgess -v- Plymouth CC (2005) (Cont)h Plymouth CC was held in breach of Regulation

12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992, as the object had been left on a pedestrian route and was capable of causing a person to trip. However, the box was clearly visible and Burgess was held ??% to blame.

h Plymouth CC appealed against the decision at first instance, but it was dismissed by the Court of Appeal.

Conclusions Drawn

• This was similar to an actual case with a 15 year old boy on school work experience

• He was watching someone removing rivets from a steel section, looking under a bench

• Serious eye injury, sufficient sight for him to deal with day to day issues, difficulties in strong light or working close up

• Risk assessments inadequate and not followed• Possibility of involving the school although

contractually onus on employer in this case• No eye protection

Conclusions Drawn

• H and S Issues all round the workplace• Insurers declined renewal – difficulties getting

insurance• HSE prosecuted • Serious health issues for the business owner• Business folded a year or so later as a result of his

health issues, the prosecution and civil case• No prospect of securing contribution due to age of

claimant

How Much?

The previous slides show why it is essential for businesses to get it right in the first place with the assistance of health and safety professionals. The results can be catastrophic!

Ask BP - $35bn and climbing!

And finally……watch for the paper cuts!

Scaling the Heights

No risk there then

Last Heathrow baggage handlers strike

Questions