Ian
If you carry out an accident investigation and write a report you can not class it as priverledged information unless it was produced at the request of your legal advisor.
I have spoken to various HSE Inspectors that have said if you refused to give over such a document as your own internal accident investigation report (which you are legally required to carry out) they would seek a Court injunction to obtain it(not a good move).

HSC press release: C002:03 - 31 January 2003

The Health and Safety Executive (HSE) will issue new guidance later this year to help employers investigate incidents that cause injuries and ill health in the work place.

The decision to issue the guidance, rather than to recommend legislation to require employers to investigate incidents, was taken by the Health and Safety Commission (HSC) at its meeting last month after taking views in response to a wide-ranging consultation exercise.
http://www.hse.gov.uk/press/2003/c03002.htm

Ian

You must however gain prior request as MEden states for each and every investigation report BEFORE investigation takes place. Separate the report from the recommendations and the problems start to disappear - hand over the report with relative impunity. You need to set up a formal protocol with your legal advisers and ensure that privileged information is tightly controlled to a small identified set of persons. If everybody can access it then the claim of privilege then begins to evaporate as it becomes public knowledge.

You really need to set out some framework as even small accidents will become entangled and the system is then unwieldy and counterproductive

Bob

PH2

Wide but NOT absolute. Even in criminal cases information between lawyer and client is privileged

Bob

We had a contractor incident a couple of years ago, which led to an investigation and then a decision to prosecute by the HSE.

They of course wanted sight of all relevant documents such as the accident report, which they duly got.

I was also asked to produce an “internal report” at the time, which I was initially reluctant to do because it would not have painted us in the best light should the HSE have got sight of it.

Our lawyers told me to go ahead with the report, because we would not have to disclose it as a result of legal professional privilege, because our lawyers had asked for it

In the end, the HSE didn’t ask for it, probably because I am not sure they knew it existed. Didn’t matter anyway, we still got fined!

I would always defer to your legal advisors in such matters, and as a previous post has suggested I would look separate any accident reports, from investigation findings when “appropriate”

See the advice given to HSE Inspectors in the Enforcement Guide at

http://www.hse.gov.uk/en...l-obtaining.htm#P62_9900

In particular paragraph 44

that was me asking the question Jake!

the previous session was excellent and what started this thread idea

I am aware of a large multi-national who adopted this approach after a fatality around 2004/5.

They were a competitor of the organisation that I worked for, but both were members of the industry trade association which promoted H&S within the industry and ran regular H&S seminars.

As the same machine on which the incident happened was found in most members of the trade association, all the H&S practitioners were keen to learn from this incident in order to prevent the same thing happening again. The trade body was very good at communicating safety alerts amongst members and we expected the same following this incident.

Instead there was a wall of silence, as the company concerned were advised by the legal team not to share any information. This was because they had originally fully co-operated with the HSE, providing copies of the investigation report and witness statements only for this to be used as the principle evidence against them by the HSE. The company pleaded guilty, but I understand that the way a number of the statements were worded made it impossible for the company to make any claim of mitigation and they received a substantial fine as a result.

They then adopted a policy where they would only release documents to HSE etc in the future if formally requested through the company solicitors.

I was told by an employee of this company that this was adopted not to hinder the HSE investigation, but to ensure that the information was properly and formally handed over and for the solicitors to check that the investigation/statements were sufficient and complete before handing over.

He said basically the solicitors check that the investigation/statements do not include any emotive words or language, that they do not include any theories on possible causes, instead that they stick to the facts that are known or witnessed. He said that if the solicitors are not happy, they insist on statements being re-taken or further investigation carried out and only handing over once it is complete.

He told me that if they had done this for the fatality, even though they knew they were and pleaded guilty
that they believe they would have received a much smaller penalty.

Something no one has mentioned is that, if your investigation report is priviledged, then you can't use it as the basis for communicating any 'lessons learned, to prevent similar events' to others - inside or outside the organisation. As the main point of any H&S-led investigation is to do exactly that, that's a big snag! The IOSH Guide 'Learning the Lessons' covers the point, and also hasn't been mentioned above.

My own experience (with various major hazards employers) is that having a lawyer comment on draft wording is as far as you need to go. It's also of interest that soon after a couple of lawyers had an article recommending investigations under priviledge for events such as Deepwater Horizon, BP openly published their internal report into that event - and don't seemed to have suffered as a result, even though USA is where the practice is most used.

Jake has it mostly right I think and imwaldra has it spot on.

HSE cannot use opinion to prosecute. The anecdote about a company who believes that they would have had less of a fine had all statements gone through the solicitors is interesting but only a lay opinion. HSE cannot build a case on emotive statements. Whatever you think of individual inspectors, on the whole they have much more experience of taking statements than most. What they are really saying is that the solicitors may have been able to hide things.

Some people do think that LP can be used to hide things. The idea that HSE need the internal report and could not find out the same information without it is a little naive, as is the idea that without the evidence to back up a breach, the internal report (and any statements) could be used as evidence. What people are saying is either 1) that Inspectors are so incompetent that they would not be able to investigate the root cause of an accident and whether there is a breach without looking at the company's own report. Hmm. Or rather 2) there must be a way for us to use our internal report to hide evidence.

As a former magistrate if I'd heard that a company was claiming legal privilege over a document that they should have produced without a request by a solicitor that would immediately make me think they had something to hide and that their management systems are not up to much if someone else had to tell them to do it.

What you can't do is obfuscate the investigation by hiding documents. I've seen that tried many times and that is certainly not covered by LP. I know of a few times where that has resulted in obstruction charges.

I agree that if they don't ask for something then don't give it. If it is not primary evidence it could be used as an aggravating factor but if the evidence is there (or not there in some cases) there is not a lot you can do about it. Any report worth it's salt should contain valuable mitigation about what the company has done since the accident that will have to come out at some stage (and should be in the company's interests to come out) before court in any event.

As part of the management system (and ACOP reg 5 of the Management Regs off the top of my head) you should be carrying out investigations and part of HSE's remit is to see that the company has put measures in place to prevent recurrence. That is the main reason why they ask to see it. It is certainly not to save valuable thinking time.

If I had known I'd have said hi!

Agreed, a good day with lots of points taken on board, excellent value for money.