Accident

investigating
and report writing
IOSH South Coast Branch
Accident investigating and report writing

Welcome and introductions

Andy Byers
Chair
IOSH South Coast Branch
Accident investigating and report writing

Types of evidence and reliability: how

can an accident investigation help or
hinder a case?

Crispin Kenyon
Partner
Weightmans LLP
IOSH SOUTH COAST BRANCH
Accident investigating & report writing
Ageas Bowl
1 December 2014 Key contact:
Crispin Kenyon
Head of London Regulatory Services
0207 822 7151
Crispin.kenyon@weightmans.com

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Agenda
 Types of evidence

 Practical interview techniques - workshop

 Legal perspective – what happens in court?

 Reliability analysis - workshop

 Open forum

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How can accident investigation help or
hinder a case?

 Too late or not done at all

 Lacks the essentials

 Illegible/illiterate

 Not retained

 Out of focus photos

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Reliability of evidence
 Honesty or prejudice?

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 Claim form

‘I stopped at the traffic lights. The lights changed. Miss P started to

move then stopped (stalled). I had just started to pull away and then
broke. As I stopped I very slightly touched the rear bumper of the car in
front, we both got out. There was no damage and Miss P is a fat chav
who definitely does not have whiplash’.

Without prejudice
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Sketches help

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 Any corrupt minds?

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 What can you see?

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Seeing what is there?

No preconceptions or
assumptions

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 A
BIRD
IN THE
THE HAND

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How careful are we? Spot the breaches

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Accident investigating and report writing

Practical interview techniques –

workshop/breakout session

Crispin Kenyon
Partner
Weightmans LLP
Anne Bartlett
Health and Wellness Senior Consultant
CGI
Practical interview techniques
Workshop/breakouts

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© Weightmans LLP
 Case study - Investigation exercise

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Accident locus Delivery bay

Single tier racking

XXXXXXXXXXXXXX
Impact point

Drop area

Corridor

Jones
office

X X X
X X XXX
X X
X X

High level storage

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Practical investigation techniques

• Who to interview?

• Why?

• What are we looking for?

• Where are we going with it?

• Chronology

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Human failings

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Reporting our findings

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Determine causes
Immediate causes
Those things that had a direct influence at the time of the
incident, either causing it or contributing to it.

Underlying causes
Not directly involved but contributed to the unsafe act
and/or condition and found to be “wanting”

Root causes
The primary reason or reasons why the incident occurred.

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Recommendations

 Draw conclusions

 Make recommendations

 Implement corrective actions

 Set a time table to complete them

 Assign responsibility

 Check completion

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Corrective Action Ideas

 Physical changes ▪ Personnel and selection

 Procedural changes ▪ Environmental

 Training ▪ Behavioral

 Programs

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Recommendations
Do:

 Consider findings of fact

 Limit ‘’immediate’’ corrective action to what is

necessary

 Keep recommendations narrow

 Consider wider issues later

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Recommendations
Don’t:

 Be overly critical (hindsight wonderful)

 Decide there is automatic fault

 Be afraid to say no corrective action required

 Simply accept IP’s account

 Forget contributory negligence

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Write the report
 When and where did the accident happen

 Who was involved

 Injuries sustained

 How did it happen

 What was the sequence of events

 What was the cause

 What are the recommendations

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Report writing tips
 Provide complete information and details

 Description of event

▪ 4 word story - injury, body part, direct cause, object

 Did you ID cause(s); direct / indirect

 List corrective action(s) to be taken

 Identify who will be responsible for follow-up

 Sign and date

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Legal privilege – true or false?

• Applies to my draft report?

• Applies to my completed report?

• Applies to advice and communications

with lawyers?

• Applies to statements from unhelpful

witnesses?

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 Standard disclosure documents

 Accident investigation & first aid report

 Pre and post accident risk assessment and SSoW
 Photographs, sketches
 Witness statements
 Minutes of Health and Safety Meetings
 Training records
 Any other notes/emails relating to the accident

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Summary – key points

▪ All incidents should be investigated

▪ Apply the six step process

▪ Emphasis on fact finding, not finding fault

▪ Recommendations should be proportionate

▪ Understand the disclosure process

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It’s Coffee Time….

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Accident investigating and report writing

Coffee
Accident investigating and report writing

Statement-writing and note-taking: tips

and traps

Anne Bartlett
Health and Wellness Senior Consultant
CGI
 IOSH CONFERENCE

Anne Bartlett MSC (OH), CMIOSH

1st December 2014
STATEMENT TAKING AND NOTE
WRITING.

Session 3
Investigation
Reactive process which following an
accident/incident/ill health aims to:-

• Gather and establish the facts

• Identify immediate and underlying causes
(Reason’s model).
• Learn lessons so that remedial actions can be
designed to prevent recurrence.
Why investigate?
Reasons
• Vital part of the monitoring of your risk
assessments & management systems.
• Moral obligation to prevent future injuries &
ill-health
• In your favour if HSE carries out its own
investigation.

BUT MUST BE DONE WELL!

What
evidence
could we use?
Evidence could be:-
• CCTV footage
• Photographs
• Measurements
• Physical evidence e.g.. machinery involved
• Documents including notebooks.
• Witness statements
Witness statement
• Document recording the evidence of a
person, signed by that person to confirm that
the contents of the statement are true.

• Records what the witness saw, heard or felt.

• May also open new lines of enquiry or help in

corroborating other information.
Witness statements
Plan:
• Who
• In what order
• When
• Where
• Outline questions

ALL WITH OPEN MIND

Witness statements
• Start with notebook interview.
• Note who is present, date and time
• Laptop easier than writing.
• Always written in first person
• Signed to say that they are true.
Structure
• Easy factual questions e.g. how long in post.
• Details of normal day.
• Events on day of the incident.
• Describe the incident - what they saw, heard
and felt, as well as what they did. Their own
experience, not hearsay.
• What they think caused the incident and
actions since.
Do not:-
• Interrupt, but allow free recall and pauses.

• Lead the witness.

• Allow intimidation or blame.

• Allow the witness to incriminate themselves

At the end

• Ask if there is anything they want to add.

• Allow person to read it back and make any
amendments necessary.
• Ask questions to add further detail and
provide clarification.
• Challenge any inconsistencies.
QUESTIONS?
Accident investigating and report writing

The legal perspective – what happens in

court?

Crispin Kenyon
Partner
Weightmans LLP
Anne Bartlett
Health and Wellness Senior Consultant
CGI
Crispin Kenyon – Coroner’s Inquests

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Session 3
 What happens in the coroner’s court?
▪ Who, when, where and how?
▪ How means what exactly?
▪ What an inquest is not

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 Let the Inquest begin

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The Coroner’s Court

 Not a criminal court

 No sentence can be imposed
 But, traps for the unwary
▪ Conclusion of unlawful killing
▪ Risk of self-incrimination
▪ Face to face with the victim’s family and friends

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WHAT HAPPENS IN
COURT

SESSION 4
Which Court?
• Health and Safety cases are generally triable
either way but Magistrates Court most likely
since penalties for H & S cases were
increased to £20,000 per breach
• Possibility of imprisonment
• One third reduction for early guilty plea
• Costs
Preparation
• Prepare your material.
• Reference documents.
• Location.
• Who is who
• Dress appropriately
In the witness box
Do:
• Stay calm.
• Explain clearly
• Stick to facts supported by evidence
• If don’t know, say so.
• Apologise if appropriate
• Have support in court from Senior
management.
In the witness box
Don’t
• Speculate
• Stray outside areas of competence
• Attempt to minimise seriousness of events
• Apportion blame
Afterwards
• Do expect media interest and have
information prepared
• Brief senior management.
• Make sure lessons are learned to prevent
recurrence.
QUESTIONS?
Sentencing
Guidelines

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Sentencing in H&S cases

▪ HSE statistics, 2013/14

http://www.hse.gov.uk/statistics/

▪ 674 cases 636 convictions (94%)

▪ 1187 offences 1073 convictions (90%)
▪ Average HSE offence £18,944 (total £16.7m)
▪ Average LA offence £8,225 (total £1.6m)

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Broad principles

▪ Seriousness of the offence – culpability and harm

▪ How foreseeable?
▪ How far short of the standard expected?
▪ How common was the breach?
▪ How far up the organisation?
▪ Aggravating and mitigating features in the case
▪ Offender mitigation
▪ Remedial steps
▪ Guilty plea

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Sentencing – examples

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Case #1 - Scaffolding boss jailed
▪ Mr H responsible for tower scaffold. Edge protection missing
and no fall arrest harness in place.
▪ Employee, 25, fell 14 metres to his death
▪ Not guilty plea – found guilty after three-day Crown Court trial
▪ 15 month custodial sentence for breach of WAH Regs.
▪ Mr H obstructed investigation by failing to produce paperwork
- prosecuted twice during investigation (fined over £15k)
▪ Custodial sentence, to run concurrently with life imprisonment
for murdering his brother in family feud

Lessons learned
▪ Assess matters yourself and challenge unsafe methods of work
▪ Relationship with HSE is very important

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Case #2– FLT driver prosecuted
▪ Experienced FLT driver asks co-worker to steady a half tonne
load on his forks
▪ Load fell onto colleague - fractured shoulder, shin and ankle.
▪ FLT driver (only defendant) pleaded guilty to Section 7 charge
▪ Fined £237
▪ Summarily dismissed for gross misconduct
▪ Unable to find work or claim benefits

Lessons learned
▪ Load unsteady so obvious risk
▪ Single poor decision with consequences for both driver and
colleague, neither of whom acted appropriately
▪ Unsafe help is no help at all

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Case #3 – failings caused own injuries
▪ Demolition of roof – Mr B injured
▪ Plan was to mechanically demolish roof when Mr B’s son, partner
and planner of works, returned from leave
▪ Further RAMS required prior to demolition happening
▪ Mr B decided to undertake demolition himself to make progress
without son present
▪ Injured when corners timber supports removed, causing collapse
▪ Suffered fractured vertebrae. Returned on light duties.
▪ Guilty plea (CDM Regs) - £500 fine, £868.90 costs

Lessons learned
▪ Making unsafe progress, cutting corners - no RAMS or planning
▪ Effect on the family-ran business?

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What maximum sentence can an individual receive for
a health and safety offence? Crown Court
A. A fine limited to £5,000
B. A fine limited to £20,000
C. An unlimited fine
D. Imprisonment for up to 3
months
E. Imprisonment for up to 2
years
F. An unlimited fine and up
to 2 years imprisonment

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The maximum prison sentence for manslaughter in
the workplace is
A. 6 months
B. 2 years
C. 5 years
D. 10 years
E. Life

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 Sentencing of H&S offences made simple

 Individuals can be fined an

unlimited amount and/or sent
to prison for 2 years

 Ordered to pay unlimited

prosecution costs

 Organisations can be fined an

unlimited amount

 If fatal – fine will seldom be

less than £100,000

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Sentencing in 2014 – two very important cases
▪ Network Rail Limited and Sellafield Limited
▪ Court of Appeal

▪ Mid Staffordshire NHS Foundation Trust

▪ Mr. Justice Haddon-Cave

▪ Sentencing Guidelines review consultation paper –

watch out fines are likely to increase!

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Recent reports

 Manchester CC:£15,000 – litter picker struck by car

 Cirencester BC:£12,000 – groundsman thrown off
mower
 Gateshead BC :£40,000 – tree feller injured when
tree fell on railway track
 Topcon Construction : £10,000 – fractured ankle
from falling concrete pillar (with £10,000 comp
order)

© Weightmans LLP
Others in court - fatal

 Nursing home (in liquidation)- £5,000 for scalds to

elderly resident who then died
 Sterecycle explosion : £500,000
 Construction company - £150,000 dumper truck
roll over plus £28,000 costs
 Construction company - £525,000 telehandler
toppled over plus £90,000 costs (trial)

© Weightmans LLP
Other penalties?

 Publicity
 Loss of reputation
 Staff morale
 Disruption of services
 Costs
 Administration
 Insurance
 Time spent with lawyers
 FFI scheme

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Can we get our
message through?

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Accident investigating and report writing

Lunch
Accident investigating and report writing

An Inspector calls – how to react and

respond

Anne Bartlett
Health and Wellness Senior Consultant
CGI
AN INSPECTOR CALLS
SESSION 5
Fee for Intervention (FFI)
• Cost recovery.
• £124 per hour for all time on site plus follow-
up.
• Only applies if a material breach is identified.
• Right of appeal.
What is a Material Breach?
A material breach is when in the opinion of an
Inspector, there is or has been a contravention
of Health and Safety law that requires them to
issue notice in writing of that opinion.
Written notification must include:-
• Which law that has been contravened
• Reason for the opinion
• Notification that a fee is payable.
No breach – no fee
Avoid by:-

• Ensuring robust systems are in place to

manage risks.
• Monitoring and reviewing these systems to
ensure that what you think happens actually
happens in practice.
Unannounced Inspection
• Less likely now than in the past as less
emphasis on proactive work.
• Targeted at high risk sectors, such as
refurbishment in construction, waste.
• May be based on intelligence.

Useful as see businesses as they really are.

HSE Inspector
• Has warrant so automatic right of entry.
• Reception staff should be aware.
• Senior manager will be asked to attend.
• Make staff available if possible.
• Be honest.
• Don’t waste time.
Investigation

• Usually following RIDDOR report, so keep all

documents relating to these. The more
informative the RIDDOR report the less likely
it is to be investigated.
• Triggered by intelligence e.g. from police, GP
or hospital.
• Usually notified in advance
Preparation
• Ask what is required.
• Make sure key staff are available if needed.
• Arrange private room
• Make sure key documents are available, with
facility to make copies if needed. Include any
investigation report and details of remedial
action taken.
Don’t
• Try to control events.
• Waste time.
• Try to conceal information
• Try to intimidate or persuade inspector not to
implement FFI.
At the end of inspection/investigation
You will:-
• Be told the findings
• Understand what actions are required on
your part.
• Understand what further actions may be
taken by the Inspector.
• Know the timeframe for actions.
Outcome 1 Remedial action
Inspector must be satisfied that any material
breaches identified will be rectified and harm
will not result.

Means of achieving this:-

• Instant Visit Report
• Improvement Notice
• Prohibition Notice
Outcome 2: Prosecution
Depending on the extent of the breach and the
degree of harm caused.
Involves:
• Evidence gathering/witness statements
• Prosecution report.
• Invitation to PACE interview.
• Approval by Senior HSE Manager.
Outcomes
• Decided by reference to the Enforcement
Management model (EMM)

• In line with the Enforcement Policy

Statement.
Costs
• FFI applies up to the time charges are laid in
the Magistrates Court.
• Court costs apply only to the period after
charges are laid, including time spent at
Court, so will be lower than in the past.
• FFI paid may be taken into account when
determining costs
Accident investigating and report writing

Reliability analysis (to include workshop/

breakout session)

Crispin Kenyon
Partner
Weightmans LLP
Reliability analysis – to prosecute or not?

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Code for Crown Prosecutors

▪ Prosecutors must be satisfied that there is sufficient

evidence to provide a realistic prospect of conviction
against each suspect on each charge.
▪ They must consider what the defence case may be,
and how it is likely to affect the prospects of
conviction.
▪ A case which does not pass the evidential stage must
not proceed, no matter how serious or sensitive it
may be.

© Weightmans LLP
Evidential stage

▪ It means that an objective, impartial and reasonable

jury or bench of magistrates or judge hearing a case
alone, properly directed and acting in accordance
with the law, is more likely than not to convict the
defendant of the charge alleged.
▪ This is a different test from the one that the criminal
courts themselves must apply.
▪ A court may only convict if it is sure that the
defendant is guilty.

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Evidential stage

▪ Can the evidence be used in court?

▪ Is the evidence reliable?

▪ Is the evidence credible?

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Public interest stage

▪ A prosecution will usually take place unless the

prosecutor is satisfied that there are public
interest factors tending against prosecution
which outweigh those tending in favour

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Public interest stage

▪ How serious is the offence?

▪ Level of culpability
▪ Circumstances of harm to any victim
▪ Proportionality
▪ Age of suspect – under 18?
▪ Impact on the community

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Accident investigating and report writing

Tea
Accident investigating and report writing

Interview under caution

Crispin Kenyon
Partner
Weightmans LLP
Anne Bartlett
Health and Wellness Senior Consultant
CGI
INTERVIEW UNDER
CAUTION
SESSION 6
Who is cautioned?
• Anyone who is suspected of an offence under
criminal (Health and Safety) law.

• May happen at any time during an

investigation or site inspection.

• Usually pre-arranged interview at HSE

premises
Police and Criminal Evidence Act
PACE 1984
• Covers powers and duties of the police but
also rights of suspects and the admissibility
of evidence.
• 7 Codes of Practice including Code E on audio
recording interviews with suspects.
Purpose of a PACE interview
• May provide important evidence
• May provide information re further lines of
enquiry
• May provide relevant information to be
considered in the prosecution decision.
• Provides fair opportunity for a potential
defendant to answer the allegations against
them and give their own account.
Invitation
• Should explain what offences the company or
individual is suspected of.
• Broad areas of questioning
• Who should attend.
• Advisability of legal advice
• Practicalities such as date and time.
Do I have to
attend if invited ?
Options available
• Refuse
• Ask for further information, then refuse
• Send written representations
• Attend but refuse to say anything
• Attend but simply read out a prepared
statement
• Attend and answer questions.
Process
Present:
• 2 officers from HSE
• Potential defendant and legal advisor.

Designated room
• Tape recording equipment.
• Clock
• Documents
Caution
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.

Person cautioned must be asked if they

understand the caution.
Process
• Identity (and letter of authorisation if
applicable) checked.
• CD recorder turned on and newly unwrapped
discs inserted. Written record also started.
• Date, time and venue stated. All present
identify themselves for the recording.
• Caution read.
Process (continued)
• Questioning
• Any documents produced are identified for
the recording.
• Breaks can be taken at any time but the time
has to be stated before recording stops.
• Recommencement requires reminder of the
caution.
• At end, asked whether anything to add.
Conclusion
3 Discs ejected.
• One sealed for safe custody – placed in
evidence store.
• Working copy – may be sent for transcription
• Copy for potential defendant.

• Added to Prosecution report for Approval

QUESTIONS?
Accident investigating and report writing

Review and recap: open forum

Crispin Kenyon
Partner
Weightmans LLP
Anne Bartlett
Health and Wellness Senior Consultant
CGI
Remember Safety first!
Review & recap:

Open forum

© Weightmans LLP
Key Contact
 Crispin Kenyon
 Partner
 DDI: 0207 822 7151
 crispin.kenyon@weightmans.com
 Ranked in Chambers & Partners 2015 and Legal
500 2014

© Weightmans LLP
Accident investigating and report writing

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