Fatal accident – what to do

What happens when there is a fatal accident at your workplace and how should you manage it?

 DID YOU KNOW?

• All fatal work placed accidents are initially investigated by the police.
• The police initially investigate and decide whether an offence of corporate manslaughter or gross negligence manslaughter has taken place. 

 
Background

 This article outlines how a fatal accident is dealt with and also how to manage a work placed accident.

Introduction

Under the Joint Protocol for Work-related Deaths, when there is a work placed fatal accident, the police and Health and Safety Executive (HSE) will jointly investigate the accident. The police investigation will take primacy. When the police are satisfied that no “criminal” offences have been committed, i.e. corporate manslaughter by the company or gross negligence manslaughter by any of the individuals involved, then the police will hand over the investigation to the HSE.

 
What is corporate manslaughter and who can be prosecuted?

Corporate manslaughter is an offence committed by an organisation if the way in which its activities are managed or organized both:

 i) caused the person’s death; and

 ii) amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased.

An organisation is guilty of an offence only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach.

The company will be asked to provide an account by way of an interview under caution by the police as to what their response is to the allegation that the company has committed an offence of corporate manslaughter.

Insurance policies will typically provide cover for such investigations so that the company’s directors and senior managers who represent the company for the purposes of the investigation can be properly advised and represented by a specialist regulatory solicitor.

Next month, Safety Smart will report on a case where an organisation has recently pleaded guilty and was sentenced to two counts of corporate manslaughter. This case demonstrates how this offence is approached within the new sentencing regime. In summary, the company was fined £250,000 per each count of corporate manslaughter, so fined a total of £500,000 for these offences, plus £50,000 for the breach of the Section 3 Health and Safety Act 1974 offence. 

Which individuals can be prosecuted for gross negligence manslaughter?

Gross negligence manslaughter is an offence that is committed where the death is a result of a grossly negligent act or omission by the individual defendant. There is a four stage test for gross negligence manslaughter:

a) the existence of a duty of care to the deceased;

b) a breach of that duty of care;

c) the breach causes (or significantly contributes) to the death of the victim; and

d) the breach should be characterised as gross negligence, and is therefore a crime.

If an individual is suspected of committing an offence of gross negligence manslaughter, then they will be arrested and interviewed under caution at a designated police station.

Clients often naively assume that if they ask to speak to a solicitor, then it appears as if they have “done something wrong” and that they have something to hide, whereas if they just co-operate with the police and tell them what they know, then the investigation against them will end. The reality is that the opposite is true: as clients do not necessarily fully appreciate the nature of the offence and the causes of the accident, they are not able to ensure that anything they say will not be damaging to them.

The police are used to suspects who are arrested and interviewed for this offence to ask to speak to a solicitor given the serious nature of the allegation and the fact that a prison sentence often results from a conviction. So if you or someone in your organisation is arrested for this offence, it is essential that they are represented by a specialist regulatory solicitor to try to ensure that if there is a defence to the allegation then it is properly put forward.

An example of a recent case of gross negligence manslaughter.

The Inquest Process

In most cases, an inquest takes place before the HSE or relevant regulator make a decision on prosecution. The Coroner’s remit is to reach a conclusion, previously known as a verdict, regarding who the deceased was, where the accident happened, how it happened and often the more difficult question of why it happened. The Coroner’s investigation of the circumstances of the death is assisted by the police officer in the case, who takes witness statements and briefs the Coroner accordingly. It is for the Coroner to decide the appropriate scope of the inquest and what issues are relevant to assist him determine the four key questions. A work based accident requires a jury to be present for the inquest.

If an organisation’s directors and/or employees are requested to attend to give evidence then they are required to do so. The Coroner can issue a witness summons if necessary.

HSE’s Decision to Prosecute

If the police investigating the fatal accident decide that no criminal offence has taken place, then they hand over primacy to the HSE or appropriate regulator to investigate whether any regulatory offences have been committed by the organisation or individuals.

The HSE will often wait to make their prosecuting decision until they have heard witnesses give evidence at the inquest hearing. Therefore, the evidence given by witnesses at the inquest hearing can play a pivotal role regarding which organisations are eventually prosecuted.

Managing the Police/Regulator’s Investigation

Legal Professional Privilege

The importance of properly managing and complying with the requests of the police and regulator when under investigation for these offences is key. As stated in our earlier article, invoking legal professional privilege is essential, as otherwise an internal investigation report can and often is disclosed to the HSE, which is then the cornerstone of the prosecution against the organisation.

Single Point of Contact (SPOC)

It is also important to ensure that there is effective control and a properly managed paper trail of all requests made by the police, so that all disclosed documentation and conversations with the police and HSE/regulator are recorded and copy files produced. Often prosecutions occur several years after an incident has happened, when personnel have changed and memories of what has been given to who and conversations between parties are vague, if not forgotten. However, if a Single Point of Contact (SPOC) at the organisation has been appointed and properly briefed regarding the requirement of their role in the investigation, then all requests are dealt with by him or her and all documentation disclosed is copied for the organisations records and therefore monitored. It is then much easier to anticipate how the HSE/regulator are likely to deal with the investigation and therefore how to effectively argue the flaws in the evidence against the organisation by way of written representations, which makes it less likely that the investigation will result in a prosecution.

Safety Smart Message

As stated in previous Safety Smart articles, it is essential that all organisations appreciate the importance of ensuring that there are proper systems in place to deal with a work placed accident, albeit a fatal accident or a minor one, to reduce the likelihood of it happening but at the same time, understanding that if one does happen, relevant personnel including the single point of contact (SPOC), are all prepared and briefed and aware of how to run an internal investigation and manage any requests by external/investigatory parties.

 Summary of Safety Smart Message:

• Ensure that you have identified and nominated a specialist regulatory solicitor to represent your company’s interests and those of any personnel who may be being investigated for gross negligence manslaughter or individual health and safety offences, in case a serious or fatal work placed accident happens.

• Ensure that in conjunction with your nominated solicitor, you have set up a privileged internal investigation as part of your suit of crisis management measures.

• Nominate a Single Point of Contact (SPOC) at your organisation to liaise with the regulator.

• Ensure that all senior managers, directors and the SPOC have received adequate training so that they aware of their responsibilities with regard to reporting an accident (as failure to report is an offence in itself), investigating the accident and co-operating with the fatal/serious investigation and keeping a paper trail of all requests made, responses given and disclosure provided.

• All requests by the police/regulator should be checked with the nominated solicitor to ensure that they are legitimate (for example, how to respond to a request for a privileged document)and have been properly and adequately complied with, so that there is no suggestion of a lack of co-operation in the future.