delivering the promises welcome. investigation of accidents graham ward llb(hons) acii acila...
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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
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!