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Mersey  
#1 Posted : 13 March 2019 14:35:48(UTC)
Rank: Forum user
Mersey

I've just audited a site and asked to view their accident / incident investigations to see what standard they are up to and whether they have addressed the causes implemented corrective and preventative measures etc..

In my opinion the investigations are not up to an acceptable standard despite recent training.

If a HSE inspector was going to give them an improvement notice what laws would he cite?

  • Management of Health and Safety at Work Regulations 1999 ?
  • HASAWA ?

Anything else?

stevedm  
#2 Posted : 13 March 2019 15:35:31(UTC)
Rank: Super forum user
stevedm

All employers have a legal duty to investigate an accident at work: RIDDOR (Reporting of Injuries, Diseases & Dangerous Occurence Regs) 1995 Social Security Act 1998 (Section 29 - the claimant needs proof he had an industrial accident or benefits will be affected). Management of Health & Safety at Work Regs 1999 (Reg 5 - accident investigation is a duty placed on the employer by the "monitoring" requirement. Woolf Reforms - a full report and investigation must be done in the event of a future claim by the employee.

thanks 1 user thanked stevedm for this useful post.
Mersey on 13/03/2019(UTC)
Mersey  
#3 Posted : 13 March 2019 15:39:13(UTC)
Rank: Forum user
Mersey

Originally Posted by: stevedm Go to Quoted Post

All employers have a legal duty to investigate an accident at work: RIDDOR (Reporting of Injuries, Diseases & Dangerous Occurence Regs) 1995 Social Security Act 1998 (Section 29 - the claimant needs proof he had an industrial accident or benefits will be affected). Management of Health & Safety at Work Regs 1999 (Reg 5 - accident investigation is a duty placed on the employer by the "monitoring" requirement. Woolf Reforms - a full report and investigation must be done in the event of a future claim by the employee.

Thanks a lot much appreciated

grim72  
#4 Posted : 13 March 2019 16:19:54(UTC)
Rank: Super forum user
grim72

PUWER/LOLER/WAHR?

A Kurdziel  
#5 Posted : 13 March 2019 16:40:30(UTC)
Rank: Super forum user
A Kurdziel

There is no legal duty to investigate any accidents or incidents as such. Which means that the hypothetical HSE inspector would not issue any sort of Improvement Notice. The Social Security Act requirements are simply about recording incidents for the purpose of claiming benefits the other legislation is about recording and reporting, not investigating.

There is a duty to review a risk assessment after an accident but that again is not the same as a specific duty to investigate. The Woof reforms are entirely to do with civil claims nothing to do with the HSE. The Woolf reforms do not require anybody to investigate they just require that any investigation findings are made available to the claimant.

If there was a legal requirement to investigate: to what level would that be? Would it be enough to say ‘operator error’ every time or would we look more deeply into the culture of the organisation? What would such a statutory investigations look like and when would it be enough?

Of course all significant incidents should, be investigated since without that you won’t  achieved anything important in Health and Safety terms but Health and Safety is more than just a set of legal requirements and it is a way of doing business.  Smiling at people at work helps the business but there is no law requiring that it should happen nor should there be.

thanks 4 users thanked A Kurdziel for this useful post.
Xavier123 on 14/03/2019(UTC), Dave5705 on 21/03/2019(UTC), jwk on 26/03/2019(UTC), Mersey on 28/03/2019(UTC)
Woolf13  
#6 Posted : 14 March 2019 12:13:54(UTC)
Rank: Forum user
Woolf13

To ensure you are operating your organisation within the law the Management of Health and Safety at Work Regulations 1999, regulation 5, requires employers to plan, organise, control, monitor and review their health and safety arrangements. Health and safety investigations form an essential part of this process.

Following the Woolf Report6 on civil action, you are expected to make full disclosure of the circumstances of an accident to the injured parties considering legal action. The fear of litigation may make you think it is better not to investigate, but you can’t make things better if you don’t know what went wrong!

The fact that you thoroughly investigated an accident and took remedial action to prevent further accidents would demonstrate to a court that your company has a positive attitude to health and safety. Your investigation findings will also provide essential information for your insurers in the event of a claim.

Xavier123  
#7 Posted : 14 March 2019 13:03:45(UTC)
Rank: Super forum user
Xavier123

Yup, as above. No strict legal duty as such.

Any notice in this neck of the woods would be on basis of management arrangements under Reg 5 for which one might reasonably anticipate that following guidance in HSG65 would be mentioned as a good means of ensuring compliance.  One might mention in the opinion justifying the service of the notice that accident investigations are currently poor/ineffective.

A Kurdziel  
#8 Posted : 14 March 2019 13:40:49(UTC)
Rank: Super forum user
A Kurdziel

The word “investigate” in relation to accidents does not appear in the Management of Health and Safety at Work regulations- regulation 3 which relates to risk assessment (3) Any assessment such as is referred to in paragraph shall be REVIEWED by the employer or self-employed person who made it if:

(a)         There is reason to suspect that it is no longer valid; or

(b)         There has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.

As I have said if they (the HSE) said you had to investigate they would have to describe the sort of investigation that they wanted- it would be too easier for the employer to simply conclude that it is the fault of the employees etc.  People say that there is an implied duty to investigate but the courts only apply the law as it is written not implied.

The Woof Reforms are part of the Civil Procedure Rules. These were introduced to speed up civil actions in the courts and stop cases being dragged out by defendants.  They allow for certain sanctions to be imposed on parties who mess up the process as set out in the Rules.

These sanctions are not criminal sanctions. Sanctions include:

•            pay some or all of the costs of another party

•            pay a higher rate of interest on particular damages awarded, or for a particular period.

•            forgo interest on a particular item of damages or for a period.

The rules states that certain documentation must be provided on time to the claimant, including any reports of an investigation into the accident. Nowhere does it say that such an investigation must take place.  If an investigation takes place after a claim is lodged as a result of a request by the defendant’s solicitor, it can, apparently, be treated as confidential and does not have to be disclosed to the claimant.

I am not saying that you should not investigate and if a case is found against you then the judge can take into account the lack of any sort of investigation as evidence that you do not take Health and Safety seriously and they will adjust any fines etc accordingly. But you cannot be prosecuted or otherwise held legally to account simply for not having carried out an investigation.

In a civil case the amount of compensation that is paid out is based solely on the amount of loss that the claimant suffered.  British courts do not issue any punitive damages, in simple negligence cases. Note that the sanctions under Woolf refer to the additional costs not the level of compensation.

 

thanks 2 users thanked A Kurdziel for this useful post.
Dave5705 on 21/03/2019(UTC), jwk on 26/03/2019(UTC)
stevedm  
#9 Posted : 20 March 2019 12:03:24(UTC)
Rank: Super forum user
stevedm

Originally Posted by: stevedm Go to Quoted Post

All employers have a legal duty to investigate an accident at work: RIDDOR (Reporting of Injuries, Diseases & Dangerous Occurence Regs) 1995 Social Security Act 1998 (Section 29 - the claimant needs proof he had an industrial accident or benefits will be affected). Management of Health & Safety at Work Regs 1999 (Reg 5 - accident investigation is a duty placed on the employer by the "monitoring" requirement. Woolf Reforms - a full report and investigation must be done in the event of a future claim by the employee.

All of these including a number of others places a DUTY on employers, although there is no special provison made it is implicit....or if you don't agree try using your argument to get out of doing an investigation for anything that is RIDDOR reportable...!

The overriding objective of the reform was, simply, to enable the court to deal with cases justly...it shifted the conduct of cases from the litigant to the judge. So not just about speeding it up...This means:

  • ensuring that the parties are on an equal footing;
  • saving expense;
  • dealing with a case in ways which are proportionate to the nature of the case;
  • ensuring that a case is dealt with expeditiously and fairly; and
  • allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
Dave5705  
#10 Posted : 21 March 2019 21:41:02(UTC)
Rank: Forum user
Dave5705

Steve, I agree with what you are saying, on all counts, nobody is saying you shouldn't do an investigation.

The question was: what law would an HSE inspector cite if issuing an improvement notice for not having investigated accidents (and RIDDOR wasn't mentioned by the OP). I don't think he would cite one, because I'm not sure he could, but I think he could issue one under reg 3 for not reviewing safety arrangements after the accident. But a review is not the same as an investigation. The reviewer could just take the view that the activity should be stopped without actually getting to the bottom of why the accident occurred, though it would be lousy practice and nobody would do it. This company is obviously not managing its safety.

It's splitting hairs, but in the literal sense, I think Andy's right.

Edited by user 21 March 2019 21:43:37(UTC)  | Reason: it didn't make sense!

thanks 1 user thanked Dave5705 for this useful post.
A Kurdziel on 22/03/2019(UTC)
toe  
#11 Posted : 25 March 2019 23:21:01(UTC)
Rank: Super forum user
toe

The answer is The Health and Safety (Sharp Instruments in Healthcare) Regulations 2013.

No one likes a smart arse but I believe section 7 of the above regulation states “an employer must investigate the circumstances and cause of the incident”.  If an employee suffered an injury form a medical sharp and the employer did not investigate the circumstances an enforcement notice could be served.

In general Mr Kurdziel is correct, notwithstanding the above, there is no other H&S legislation that required an investigation.

thanks 1 user thanked toe for this useful post.
jwk on 26/03/2019(UTC)
toe  
#12 Posted : 25 March 2019 23:27:30(UTC)
Rank: Super forum user
toe

Originally Posted by: Mersey Go to Quoted Post

I've just audited a site and asked to view their accident / incident investigations to see what standard they are up to and whether they have addressed the causes implemented corrective and preventative measures etc..

In my opinion the investigations are not up to an acceptable standard despite recent training.

If a HSE inspector was going to give them an improvement notice what laws would he cite?

  • Management of Health and Safety at Work Regulations 1999 ?
  • HASAWA ?

Anything else?

Just out of intrest, I would be really intrested to see or be refrenced to the acceptible standards that you refer to in your post. Or what investigation methodology you would expect to see.
stevedm  
#13 Posted : 26 March 2019 12:24:35(UTC)
Rank: Super forum user
stevedm

Originally Posted by: Dave5705 Go to Quoted Post

Steve, I agree with what you are saying, on all counts, nobody is saying you shouldn't do an investigation.

The question was: what law would an HSE inspector cite if issuing an improvement notice for not having investigated accidents (and RIDDOR wasn't mentioned by the OP). I don't think he would cite one, because I'm not sure he could, but I think he could issue one under reg 3 for not reviewing safety arrangements after the accident. But a review is not the same as an investigation. The reviewer could just take the view that the activity should be stopped without actually getting to the bottom of why the accident occurred, though it would be lousy practice and nobody would do it. This company is obviously not managing its safety.

It's splitting hairs, but in the literal sense, I think Andy's right.

so we ignore the implicit terms in your legal argument...don't think so..but hey free to try it...it isn't how my law degree was taught..  :)
DavidGault  
#14 Posted : 26 March 2019 14:21:41(UTC)
Rank: Forum user
DavidGault

Regulation 4 of the Safety Representatives and Safety Committees regs gives the function of investigating hazards and dangerous occurrences.  If you interpret an accident as a dangerous occurrence that is one possible way forward.  Of course that doesn't specify a standard for investigation.  I don't think any regulation does that specifically.

Edited by user 26 March 2019 14:23:43(UTC)  | Reason: Explanding on the original answer.

toe  
#15 Posted : 27 March 2019 23:35:47(UTC)
Rank: Super forum user
toe

My learned friend, The Safety Representatives and Safety Committees Regulation 1977 is an old piece of legislation that is primarily out of date and is pretty much superseded by the Health and Safety (Consultation with Employees) Regulations 1996. We have to be reminded that safety representatives have functions and not duties. Some of those function may involve investigations of complaints or potential hazards, there is no duty for them to investigate accidents.

An enforcement officer would [could] not issue a notice relating to this regulation.

I really like how safety professional are able to interoperate and discuss legislation on these forums. Of which, in the past, I have myself learned or been enlightened to change my viewpoint on such stuff.

Edited by user 27 March 2019 23:58:52(UTC)  | Reason: Not specified

toe  
#16 Posted : 27 March 2019 23:55:48(UTC)
Rank: Super forum user
toe

so we ignore the implicit terms in your legal argument...don't think so..but hey free to try it...it isn't how my law degree was taught..  :)

No... we must respect and apply the law as we understand it and see fit. In my view, we apply the spirit of law and not necessary the letter of the law. Managers, laypersons, CEO’s, safety professionals have to do what the law asks of them in the circumstances that apply. The ultimate deciders are Judges in a court of Law. But… we are not Judges and we must do our best. Dave5705 was simply answering the OP question and in no way suggesting to ignore any point in his legal argument.

In my work, I often question people with law degrees! In which an understanding of the law’s of the land differs from the implied terms of the legislation. In essence, apart from the Sharps Regulation, there is no legal requirement in H&S law to investigate accidents implied or not. Period.

Edited by user 27 March 2019 23:56:51(UTC)  | Reason: Not specified

thanks 2 users thanked toe for this useful post.
Dave5705 on 28/03/2019(UTC), A Kurdziel on 29/03/2019(UTC)
Dave5705  
#17 Posted : 29 March 2019 11:31:13(UTC)
Rank: Forum user
Dave5705

Originally Posted by: toe Go to Quoted Post
I really like how safety professional are able to interoperate and discuss legislation on these forums. Of which, in the past, I have myself learned or been enlightened to change my viewpoint on such stuff.

I agree, it's why I read them. So much better than discussions on 'who's got the biggest Dip.?!

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