Rural Safety, Accident Investigation & Claims

South Cumbria Occupational Health & Safety Group

SCOHSG members attended the annual joint meeting of the IOSH Manchester & NW Districts' Branch at Barton Grange, Preston on Tuesday 10th June 2008.

Paul Eyre, Branch chairman, welcomed delegates and explained that the format was different from previous years; the programme had been extended to encourage members to attend morning and/or afternoon sessions.

Topic 1: Managing Visitor Safety in the Countryside
Speaker: Andy Stokes, Health and Safety Manager, RSPB

Paul then introduced the first speaker. Andy explained that Visitor Safety in the Countryside was slightly different from workplace safety. He outlined the areas his talk would focus on which included:
- A range of outdoor environments,
- The work of 'Visitor Safety in the country-side Group',
- Working with Regulators and external groups,
- Risk control measures and
- Managing safety in practice using case studies.

Andy's first set of slides showed the diverse environments managed by the RSPB, these included coasts, mountains, uplands, rural locations, woodland, urban parks and historic structures.

Andy then outlined the work of the 'Visitor Safety in the country-side Group' (VSCG) which was formed in 1995. More information about the group can be found at www.vscg.co.uk The members of the group all own and/or manage land, buildings and property, have heritage, conservation and landscape objectives, are committed to public access and are duty holders under the Health and Safety at Work Act 1974. Andy explained how the group was formed and identified the founding members. Current members include Historic Scotland, English Heritage, The National Trust, RSPB, Royal Parks, Environment Agency some local authorities and British Waterways.

He explained VSCG's guiding principle is the phrase 'No nasty surprises'. He said the purpose of the group was to find a balance with maintaining their conservation, heritage, recreation, cultural and landscape objectives without taking away peoples sense of freedom and adventure avoiding restrictions on access. To do this a range of people were involved and there was a need to be pragmatic. In his experience safety people tended to be over cautious.

Andy used a number of photographs to demonstrate how risks were being managed and essentially this was about providing information to ensure people know the risks they face. He suggested it was important to inform and educate visitors about the nature and extent of hazards, the risk control measures in place, and the precautions visitors need to take themselves.

Andy outlined the issues facing multi-use sites saying it was important to recognise that people taking part in different activities will access different levels of risk and the risk control measures for one visitor group may create problems for others. It was important to work with visitor groups to promote understanding and resolve conflict. It was important to strike a balance between user self reliance and management intervention.

Andy showed the risk matrix developed by the group which identified the level of risk controls that should be put in place. He suggested that it was reasonable to expect visitors to exercise responsibility for their own safety and not to put others at risk. It is also reasonable to expect parents, guardians and leaders to supervise people in their care.

Risk controls are developed by assessing the risks and developing safety plans for each site. Andy suggested it was important to monitor the behaviour and experiences of visitors in order to review visitor safety plans. Risk control measures should be consistent and it was important to ensure work activities are undertaken to avoid exposing visitors to risk.

Andy moved on to talk about working with Regulators and external groups. He said the VSCG had links with different sectors and policy groups in HSE. There is a lead authority partnership agreement and close working with local groups e.g. kite flyers and fishermen. The group had a voice in the sensible risk management debate and provided comments on draft documents produced by HSE.

Andy spoke about the risk hierarchy which is
- Remove the hazard
- Prevent access
- Restrict access/adapt routes/manage visitor behaviour
- Provide information, education and interpretation
- Reliance or emphasis on the skills and abilities of visitors
- Emergency procedures and rescue facilities

Andy demonstrated the hierarchy with a number of photographs of examples e.g. Tintagel Castle in Cornwall. He then showed the different approach used in Iceland at their top visitor attraction a hot water geyser, which emits boiling water. The photos showed only a piece of rope around the geyser and yet it worked.

In conclusion Andy emphasised that the approach has to be sensible and highlighted the case involving a tree at Dunham Massey which killed a child. The National Trust is still waiting to find out if they are being prosecuted. Andy responded to several questions.

Then, due to a change in the programme Andy gave a second talk:

Topic 2: Handling Visitor Claims: a case study
Speaker: Andy Stokes, Health and Safety Manager, RSPB

He outlined his experience of defending a claim brought by a visitor who sustained an eye injury which prevented him from practising as a dentist. First Andy reminded the meeting about the common law position and the Occupiers Liability Act and the number of common law defences which are:
- Volenti
- No duty of care owed
- Duty of care not breached
- Not foreseeable
- Freak accident

Andy's case study took place in a valley 9 miles outside Swansea. A visitor was walking along a woodland path in late November, when he fell and got something in his eye. Unfortunately the injury was serious. The claim was estimated to be between £1 and £1.2 million. The site had been visited by 2-3 visitors in November and the injured party claimed the path was in a poor state. Photographs were shown of the path and Andy provided background factual information.

The findings in Court were:
- The claimant failed to satisfy the court that he had fell and became impaled on a jagged stump on the trail as alleged
- It was not reasonable to expect that an injury of this nature would occur
- Even if there had been a reasonable foreseeable risk, it would not be fair, just or reasonable to impose such a duty. This would require unreasonable and disproportionate action or responses.

Andy said that he had inherited this claim when he joined the RSPB and that it had not been taken seriously when it was first received. His advice to organisations receiving apparently unsubstantiated claims was to:
- Take all initial calls and letters seriously and start gathering information straight away
- Take photos ASAP
- Keep an open dialogue with insurers
- Obtain as many records as possible
- Take barristers, solicitors and judge on a site visit
- Don't rely on insurers to gather all appropriate information/evidence
- Support any staff involved in run up to trial

Andy finished by reiterating that the VSCG principles are key to responding to HSE and defending claims. Andy responded to several questions. Paul then presented Andy with a small gift as a token of appreciation and the meeting thanked Andy in the usual way with a round of applause.

Topic 3: Accident Investigation & enforcement
Speaker: Graham Piggot, Principal Inspector, HSE, Preston Office

Paul introduced Graham who manages an HSE operational team working in Lancashire and Cumbria, which covers the public sector as well as industrial, recycling, furnishing and the timber trade.

Graham explained that he undertook accident investigation as part of his enforcement role and that there was a 60% procative/40% reactive split, although major incidents could upset that balance. Graham�s first slide showed the different elements and stakeholders involved in an investigation. The remit of an investigation can be very broad but it starts with an 'event' which can be:
- An injury accident
- A case of ill-health or
- An adverse incident

Graham said he would expect there to be an internal investigation of adverse incidents, which would look to prevent recurrence, learn wider lessons and identify business improvements. Safety Representatives may be involved or do their own investigation. Graham suggested this was a sign of a healthy safety culture. There may also be some civil litigation (compensation claim). The H & S regulator, HSE or Local Authority, tend to investigate serious or selected accidents to prevent recurrence, deal with breached of law and for policy development. HSE also learns a lot through investigation and this can lead to policy development.

Graham explained that the Police deal with fatal accidents and there is a work related death protocol used by HSE and the Police.

He then asked Can HSE do better? � the answer will always be yes because incidents are always different and the experience gained dealing with them is used to refine incident investigation methods so this would be the theme of his presentation 'Accident Investigation - doing it better'.

Graham outlined the reasons for doing an investigation, these are:
- Continuous improvement
- Takes stock of current practice
- Identifies strengths, areas for improvement and barriers
- Determines own priorities
- Provides a framework for doing this that can be used as a tool for the future

Graham suggested that the framework can be used:
- For benchmarking strengths
- Identifying good practice - what does it look like?

Graham said that there are many good sources of information including the Management Regulations, HSG 65 and HSG 245 as well as research reports, publications by experts on accident investigation and the HSE website.

Graham then asked "Should there be a legal duty to investigate accidents?" The answer is YES! This is implicit in Regulation 3 of the Management Regulations and, in the event of an incident review of relevant Risk Assessments: see page 14 of the ACOP under 'monitoring adequately'

Graham explained that an investigation should answer the questions - What happened? Who was involved? When did it happen? and How did it happen? Once this has been established the investigator should be able to define the appropriate purpose, scope and content of the incident investigation.

What happened?
- Identify sources of problem and take remedial action on immediate risks
- Decide on appropriate level of investigation
- Investigation should include immediate analyses of underlying and root causes
- Explore all reasonable lines of enquiry
- The purpose of the investigation should be prevention of future incidents; not blame
- The investigation should be structured and compare conditions and practices found with expected standards for similar tasks
- Relevant Risk assessments should be reviewed and amended if necessary - should provide workable recommendations for improvement
- Ensure that recommendations are implemented.

Who should be involved in the investigation? - People involved?
- Managers must understand purpose and value of an internal investigation and commit appropriate resources: time, training and investment (if appropriate)
- Any investigation needs to be seen as a line management function, not just devolved to a H & S professional
- It is important that everyone involved takes 'ownership' of the investigation
- A joint approach involving Trade Unions, H & S, any injured person plus specialist input as necessary.
- Ideally the investigation needs to be supported by someone with sufficient investigatory skills
- The investigation co-ordinator needs to understand the role and powers of enforcing authorities as well as taking account of the needs of the organisation.
When should the investigation take place?
- The urgency and speed of response depends on the severity of actual harm and level of immediacy of risk arising from the incident.
- Timely preservation and recording of conditions, facts and information is important ie before before the memories of those involved fade or become influenced by gossip and speculation and before equipment and/or the surroundings have been �tidied up�.
- Judgement about appropriate timelines for the investigation will be dependent on the severity of the incident; for example, whether there is a need for forensic investigations and whether or not reuse of equipment is urgently needed etc...

How to report the investigation
- There are a number of approaches and techniques that can be used; the one chosen will depend on the depth of investigation needed and the knowledge and skills of the investigator.
- A good starting point is the Step by step approach outlined in HSG 245 - gather information, analyse information, identify risk control measures, implement remedial action
- Potential worst consequence influences level and speed of any investigation
- There should be an adequate system for recording and analysing information e.g. adverse event report and investigation form
- Whatever system is selected it should be properly used: right questions asked
- Formal methods to assist systematic analysis should be used proportionality eg route cause analysis trees

Key components of the incident report should include:
- A concise incident description and a schematic representation of the incident
- Identification of critical events, failures and conditions
- Systematic investigation of management and organisational factors
- Recommendations for remedial action with implementation dates and/or summary of remedial action implemented

Graham then spoke about how HSE identified incidents that they needed to investigate. He explained that HSE has an operational procedure for investigations which identifies incident selection criteria, clear objectives and investigation management. HSE Inspectors are also trained in analytical techniques for use in fatal and major incidents.

Graham suggested the following areas for improvement in internal incident investigations:
- Investigations often focus on the immediate causes the what, rather than the why.
- There often seems to be a desire to �short cut� to the disciplinary process rather than to identify possible systematic failings.
- Potential subjective bias by the investigator (intentional or unintentional) needs to be addressed.
- Investigators need to be trained to use systematic techniques and to analyse information gathered objectively.
- H & S professionals and managers needed training in the application of structured methods to incident investigations.
- Investigations are often treated in isolation; lessons learned need to be applied to other workplace tasks if appropriate.

Graham responded to several questions. Paul gave the vote of thanks presenting Graham with a gift as a token of appreciation. The meeting thanked Graham in the usual way. Graham agreed to provide a copy of his presentation for display on the Manchester and NW Districts' Branch website alongside the minutes.

Topic 4: Accident and Claims - employers guide
Speaker: Julian Dexter, Keoghs, Legal Advisers

Paul introduced the final speaker, Julian Dexter from Keoghs, Legal Advisers.

Julian explained that he hoped his presentation would offer practical hints and remind employers how they are involved in claims. He first gave a brief resume of his experience having dealt with claims for over 10 years with considerable experience of investigation, defending claims and prosecutions by HSE.

He said his presentation would cover accidents at work, accident prevention, documentation, what happens when there has been an accident, HSE investigation/enforcement and the claims process. He gave out some stark statistics from 2006/7 indicating there had been 241 fatalities, 141,350 serious injuries (RIDDOR) and 36 million working days lost due to work related absence - more information available at www.hse.gov.uk/statistsics

Julian identified the main causes of accidents:
- Slips and trips,
- Manual handling,
- Falls from height,
- Workplace transport and
- Handling harmful substances.

The high-risk employment sectors are agriculture, construction, transport and communications and manufacturing. The main injuries and complaints are Muscular Skeletal Disorders (MSDs), stress, respiratory problems and skin problems.

Julian moved onto accident prevention advising that the best way to achieve is by:
- Risk assessment, which describes a process and advises how to remove and/or reduce the risk to �as low as reasonably practicable� (ALARP).
- Safety procedures - devising, implementing and enforcing a procedure that takes into account risk assessment and
- Training to ensure safe procedures are adhered to.

Clear documentation is an important aid in accident prevention and the defence of claims and prosecutions. It should include:
- The organisation�s H & S policy - setting the overall approach to H & S. Julian recommended each employee receives a copy and signs for it
- Risk assessments - should accessible to all employees and they should be asked to read and sign them to say that they have seen and understand them.
- Method statements and working procedures should provide clear guidance about how the work activity is done; the employee needs to understand what they have to do to work safely
- Training records - often training on the job isn't documented. Julian said a lot of companies use training matrices. The trainer and trainee should sign all training records. Any extended training should also be documented. It is very difficult to prove training has taken place without records
- Accident book - it is important that everyone knows the procedures and Julian suggested a copy of accident form should be kept in the injured employees' personnel file. Julian said in his experience there were always problems with accident records and people may lie at the end of the day.

Julian then turned to the action that should be taken following an accident at work. Julian recommended that if there was doubt about whether an accident should be reported under RIDDOR then it should be reported as it is a criminal offence not to. Reporting is done on form F2508 either on line or to the call centre. Insurers should also be notified - reporting late to insurers can lead to a decline in cover. Carry out an investigation as soon as possible.
Julian said there were very few accidents where lessons could not be learnt and accident investigation was a very important process. The insurers, who may use specialist claims investigators, may also investigate the accident.

Julian then provided advice on dealing with the HSE should they decide to investigate. He reminded the meeting of the powers HSE have and suggested co-operation rather than obstruction as this a criminal offence. Julian then outlined the actions HSE can take:
- No action
- Serve an Improvement Notice
- Serve a Prohibition notice, this stops work until action taken to comply with the notice
- Charge under an offence - this may involve attending an interview under PACE. If this happens Julian said it was advisable to notify your insurers. Your EL cover may entitle legal representation. He stressed that it was important to be represented.

Julian suggested that given the current climate of 'compensation culture', if HSE take action then there is a strong possibility that a civil claim will follow. Julian described the protocol involving claims:
- The claim is instructed by a letter of claim.
- There is a pre-action protocol for personal injury claims
- 21 days to acknowledge
- 3 months for a decision on liability
- There is an investigation and either an admission or denial of liability.
- There is also a half way house, for example contributory negligence or proportion thereof.

The reasons for denying liability need to outlined and relevant documents disclosed e.g. risk assessments, training records etc... Julian then outlined the pre-action disclosure procedures and explained that there was additional information in the pack given to those in attendance at the meeting. The first page describes the essential documentation required.

If there is failure to comply with the pre-action protocol, the claimant's solicitors are entitled to apply to the court for a pre-action disclosure. This can also be done if the claim is denied and there is no supporting documentation. This is done with legitimate purpose to get sight of relevant documentation at an early stage; it can be easy money for the claimant's solicitors! In the worst case scenario, the defendant can be stopped from defending the claim. In general if liability accepted then claim is settled.

The claimant has three years from the date of the accident to issue proceedings. There is also another four months to serve papers, which can give a false sense of security to the organisation where the accident occurred. Julian suggested it was only prudent to close the file if claim settled or if there were no proceedings after three years and four months

Claimants need the following documentation:
- Claim form and description of the claim
- Statement of expected value of the claim
- Statement setting out the facts and how the accident happened
- Allegations need to be particularised
- Brief details of injuries suffered
- Schedule of loss eg. out of pocket expenses, loss of earnings
- Medical evidence from medical expert, including prognosis, rehabilitation, permanent injury etc...

The insurers nominate a solicitor to accept the documentation. The employer may not see the documentation that has been submitted but should hear from the solicitors representing the claimant. If the claim is not acknowledged within 14 days the claimant�s solicitor is entitled to ask for a judgement so, in effect, the employer cannot defend the claim.

There is a further 14 days to file a defence - during this time the insurers produce a statement which sets out the defendant�s version of events. Extensions of time are available; both parties can agree up 28 days or more.

The defence needs to be signed and will contain a lot of legal language and jargon. At the end of the document there is a statement of truth and whoever signs it must be happy with it. If, at a later date, the statement of truth is found to be untrue, then person who signed it can be in contempt of court.

Julian moved on to allocation and directions. Claims can be allocated in three different ways:
1. Small claims court
2. Fast track up to 15k
3. Multi-track - more complicated generally over 15K and likely to take more than one day in court. The court will make directions and set the timetable. Often these are agreed between parties and rubber stamped by court. Directions can be done by conference phone

Disclosures - each party must disclose or state whether a document exists or has existed. Each party has the right to inspect. The definition of a document is 'anything in which information of any description is recorded' - this now includes emails and computerised records. The main process is called standard disclosure and you still need to disclose 'smoking guns'.

Specific disclosure is when the other side think you have documents you don't wish to disclose. At this stage you will be asked to sign a list of documents. There is also privilege which means you do not have to disclose any documents prepared in advance of litigation

Julian then outlined the documentary evidence that was required in each personal injury claim:
- Documents relating to the incident eg relevant Risk Assessments, method protocols etc...
- Witness statements based on fact
- Expert evidence
- Medical evidence
- Non-medical evidence
- Information on care, adaptations and medical support

The evidence needs to be factual not opinionated. Where parties have experts who differ then a joint statement must be produced identifying where the parties agree and where they don't and any underlying factors.

Settlements - the majority of cases are settled out of court. Part 36 sets out the process for making the offer to settle. This normally involves negotiation to reach agreement.

ADR i.e. a mediation/joint settlement meeting allows a deal to be thrashed out and the airing of views - basically a deal is struck.

When a claim is settled - a consent order is drawn up which outlines what the agreement is - this tends not to be controversial and needs to be filed in court. It is signed on behalf of both parties and is a binding document - application can be made to court to enforce it if either party does not follow through. Insurers tend to settle most claims for commercial reasons

There is always a litigation risk - and witnesses may not stick to their statements and judges are not consistent. Julian outlined the pre-trial procedure. If there is anything controversial then there may be a pre-trial review. Counsel and special advocates explore and decide if going to fight it.

If a witness is summoned to court - they have to attend otherwise they will be �in contempt�. Finally there is the trial which is a rarity according to Julian. Julian finished his presentation by outlining the trial process, openings, oral evidence, submissions and judgement. The judge gives a reasoned explanation and no judge likes to be appealed.

Julian then responded to several questions. Paul gave the vote of thanks and presented Julian with a small gift as a token of appreciation. The meeting thanked Julian in the usual manner. Paul commented that the day's event had been very successful and thanked all for attending in particular the speakers and for the help and support provided by the volunteers. Paul provided details of the next Branch meeting, which is the annual joint meeting with BOHS on July 8th.

The meeting closed at approximately 16:35