Accidents and incidents

Andrew Pozzobon (Submitted photo)

The main goal of health and safety programs is to reduce workplace injuries and deaths. However, even worksites that have comprehensive health and safety programs may have serious incidents that result in a worker injury or death. The steps taken by an owner, prime contractor or contractor following a serious incident are critical to minimizing the legal risk related to the serious incident.

REPORTING THE INCIDENT

If a serious incident occurs, the first step that should be taken is to contact the appropriate authority. If there is a death or workplace violence at the worksite, the police should be immediately contacted. In most provinces, there is also an obligation to contact occupational health and safety and workers’ compensation following a serious incident. Depending on the nature of the incident, insurers may need also need to be contacted and informed of the incident.

SECURING THE WORK SITE

Following a serious incident, it is necessary to ensure that the scene is not altered or disturbed, and no further work is conducted in that area. Further, no equipment should be moved or removed from the scene. The scene should not be disturbed or altered unless directed by the police, emergency services, or occupational health and safety, or where it is necessary to attend to a worker that was injured or killed; prevent further injuries or incidents; or protect property that is endangered as a result of the injury or incident.

DEVELOPING A CHAIN OF COMMAND

Following a serious incident, it is important to develop a chain of command and designate a person authorized to speak on behalf of the company. The designated person should be the spokesperson for any investigation into the serious incident. The designated person will also be the one who will deal directly with the police, occupational health and safety, lawyers, and insurance companies. While other persons at the worksite may have to provide information to authorities, having a designated person will ensure there is a consistent path for information to follow.

GATHERING EVIDENCE

Following a serious incident, evidence should be preserved to ensure that all of the key information is available for any investigation. Information that should be collected include emails, videos, and photographs of the scene of the incident, among other things.

Any relevant policies, procedures, training records, employment records, hazard assessments, and other similar documents should also be collected. These documents will often be requested by occupational health and safety, so it is important to have them available, if requested.

Witnesses should also be interviewed, and witness statements should be completed. Any interview or witness statement should focus exclusively on the facts, namely what the person witnessed. The witness statements should not include any speculation by the witness as to the cause or possible causes of the incident, nor any type of root cause analysis.

PREPARING OF INVESTIGATION REPORTS

In most provinces, following a serious incident, there is a requirement to complete an investigation report. However, the contents of the investigation report should be carefully considered. Further, it is recommended that two separate investigation reports be completed.

The first investigation report is the report that may need to be provided to the authorities. This investigation report should focus on the facts and the steps taken to ensure a similar serious incident does not occur again in the future. It should not include a root cause analysis or speculation as to what occurred.

The second investigation report should be completed with the involvement of legal counsel and be subject to privilege. This investigation report would likely be more comprehensive and would include a root cause analysis. The purpose of this type of investigation report is to ensure that the company has all of the necessary information to fully respond to any claims related to the serious incident.

PRIVILEGED COMMUNICATIONS

Legal counsel should be immediately involved to try to ensure that the investigation and communications are privileged. Any communications that do not involve legal counsel may have to be disclosed as part of any litigation or to occupational health and safety, if prosecuted. However, companies cannot claim blanket privilege over materials or claim that materials are privileged simply because legal counsel is involved. Your legal team can advise where privilege may exist.

Serious incidents can happen at any worksite. Ensuring that there is a plan in place following a serious incident is key to ensuring any legal risk is minimized.

Andrew Pozzobon is a partner practicing in commercial litigation and employment at Borden Ladner Gervais LLP. He regularly advises on occupational health and safety matters. This article provides an overview and is not intended to be exhaustive of the subject matter contained therein. Although care has been taken to ensure accuracy, this article should not be relied upon