Rank: Forum user 
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Good evening
On behalf of my client (who was going on holiday at the time), I reported an accident under RIDDOR using the online form; the injury was to a resident in a housing association property.
The HSE have now emailed me asking for further details, such as a copy of the investigation report, photos of the scene, extent of injuries and the injured person's contact details.
Basically the client is at fault as he left a shallow trench exposed, and the resident tried to step over it and slipped injuring her shoulder; the trench was not guarded.
I assume the client is obliged to send the information requested, but how much information should they send, particularly if the HSE decide to prosecute; is some of it not protected by legal professional privilege, although I am no expert here, as this is the first time this has happened to one of my clients. Should the client contact his solicitor for advice or is the request standard procedure; From my experience the information requested is not unusual
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Rank: Forum user
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Hi,
Is this really a RIDDOR?
This sounds to me that the person who has been injured ( a non-employee) should make a claim against your client for their negligence?
Your client's solicitor should be informed and the claimant should make preparations i.e. full details of the incident - report - photos - names ( including witnesses) - etc.
Cheers
Andy
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Rank: Forum user
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Accidents to members of the public or others who are not at work must be reported if they result in an injury and the person is taken directly from the scene of the accident to hospital for treatment to that injury
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Rank: Forum user
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Andy, All you say has been done; but according to RIDDOR, the accident was reportable as the IP was taken to hospital by ambulance from the scene, x-rayed and then treated.
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Rank: Forum user
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Bazzar (and others)
First of all, apologies for the long post, not all of which is by way of an answer to your question.
In short, none of the information requested is legally privileged and your client would be well advised to notify his insurer (to ensure cover is not avoided) and he should seek legal advice.
It is worth noting that while the insurer may insist on one of its Panel Solicitors being instructed, section 2 of the Insurance Act provides that an insured is entitled to a solicitor of his choice. The insurer has no right to insist on a Panel Solicitor. The insurer can however insist on only paying the chosen solicitor the same rate as it would pay its Panel Solicitor.
On the issue of privilege, legal professional privilege to give it its full title only applies to communication between a client and his legal adviser (solicitor and/or barrister) and it only applies where the lawyer has been engaged to provide legal advice (i.e. this post would not be legally privileged). Even when a lawyer is instructed, existing documents e.g. an accident investigation report cannot be covered by privilege.
I am happy to provide you with more detailed advice should you need it. Just drop me a message.
Again, sorry for the long post but I hope it helps.
DJ
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Rank: Super forum user 
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That is interesting DJupnorth
Where you have "Even when a lawyer is instructed, existing documents e.g. an accident investigation report cannot be covered by privilege"
You use the term "existing documents"
I was under the impression that if your lawyer instructed you to create and send them a report on an accident, that could then be privileged ? As it is communication between you and your legal counsel.
You may have contacted your lawyer immediately following something serious happening, so nothing created naturally at that point.
Is this then not true ?
Chris
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Rank: Forum user
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Chris,
Yes. I use the term "existing" as anything that exists before a lawyer is instructed cannot by definition be privileged as it was not created with the sole (or occasionally the main) purpose was not for the giving or receiving of legal advice. However, if it is the case that you are legally, or contractually required e.g. to provide an incident report, even if requested by a lawyer, that report cannot be privileged, as is the case with NHS trusts, or other healthcare organisations. These organisations have a statutory duty to investigate incidents and as such, the report cannot be privileged.
If as you say, your lawyer instructs you to prepare a report for the sole, or dominant purpose of the giving and receiving of legal advice, the report will be privileged. This is why experts reports are generally privileged. However there are risks and privilege can easily (and inadvertently) waived.
This is a complex area of law and all practitioners should be aware of the law in this respect so that they do not inadvertently assist in any prosecution.
In short, unless you are sure it will be privileged, assume it will be shared with the prosecution and claimants.
I hope this clarifies things.
DJ
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Rank: Forum user
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For what's it's worth an ex inspector advised me that legal privilege can only be applied when the document was created, not retrospectively ?
Any truth?
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Rank: Forum user
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David Thomas wrote:For what's it's worth an ex inspector advised me that legal privilege can only be applied when the document was created, not retrospectively ?
Any truth? As another Ex Inspector, that is my understanding as well, but it's been a while since I've looked at it, and it's a complex area of legal debate. If your client holds photos etc. I'd imagine the Investigating inspector will, if they have not already, use their Section 20 powers to get the photos. Probably best not to leave excavations uncovered..... Al
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Rank: Forum user
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David,
Your inspector colleague is correct. Non-privileged documents that exist prior to the lawyer being instructed cannot be covered by privileged.
DJ
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Rank: Super forum user 
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There seems to be confusion here. The OP asked about HSE requesting information and never mentioned civil claims.
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Rank: Forum user
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As I noted, HSE my use S.20 powers if they decline to make them available
Whether it's best to just so-operate or not is always a debate. as an Inspector I always found investigations were much more smoothe when dutyholders were open.
Al
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Rank: Forum user
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As I noted, HSE may use S.20 powers if the dutyholder declines to make them available
Whether it's best to just so-operate or not is always a debate. as an Inspector I always found investigations were much more smooth when dutyholders were open. failure to disclose info could be included in any future report as a mitigating factor
Al
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Rank: Super forum user
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Thanks Djupnorth
I was wondering if the training I had on claims which included this subject had changed. In a previous employment we were instructed to start the report with "privileged information" for a particular incident.
I would not have thought section 20 would allow the HSE access to privileged communication between you and you legal representative. Even if you murdered someone. Does it ?
My concern would be that from DJupnorths comment "In short, unless you are sure it will be privileged, assume it will be shared with the prosecution and claimants."
Could be read as "be light on information in the report!" some may be tempted to bias the report or not create one. Is there an absolute duty ?
TBH the OPs scenario I would just hand it over, this is all for something more serious.
Chris
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Rank: Super forum user
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never had to worry about privileged information, eventually if push came to shove it would be an argument between sets of solicitors.
My understanding is that the information can only be privileged if it is something your solicitor asks you to produce. So unless you get a solicitor involved with every investigation I believe DJ is correct the HSE/LA could use section 20 to request copies of your investigation.
If however part way through an investigation where it becomes clear that some kind of legal or civil action may be imminent and you solicitor asks you to produce another report, or gather further information then that may be privileged.
Hope that make some sense.
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Rank: Super forum user 
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Bazzer
I would suggest - as you have yourself indicated - that this is somewhat of an open and shut case where your client is clearly at fault. A member of the public has been injured, and the HSE (correctly) have been made aware via a RIDDOR report.
Your client therefore needs to prepare themselves for a) an HSE visit (and possible enforcement action) and b) a civil claim from the injured party. I personally would forget about legal privilege (the circumstances and outcome - being somewhat "minor" in the general scheme of things - don't warrant it on this occasion in my 'umble opinion), and instead I would cooperate fully with the HSE investigation.
I would provide them with the information they've requested, along with a (grovelling) explanation as to how/why the trench was left exposed, and therefore how the accident came to happen. I would also explain exactly what you/your client have done to ensure that it will never, ever happen again (..as well as covering what action your client has taken against the person responsible for leaving the trench exposed in the first place !) If you're lucky, this may help mitigate any action the HSE decide to take.
As has already been mentioned, your client's insurers also need to be made aware of the incident, and they are likely to also require the information you provide to the HSE in preparation for the inevitable PI claim.
One of those cases where the bullet has to be bitten I think ?
Only my opinion for what it's worth...
ED09
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