Investigating claims - the dos and don'ts

The importance of the accident investigation process in the context of potential future claims cannot be over emphasised.

The importance of the accident investigation process in the context of potential future claims cannot be over emphasised.

Accident investigation should only be carried out by individuals who have been properly trained in this process. Such training is widely available from external sources.

It is vital to have in place a mandatory accident reporting system whereby all staff are required to report any accident or near miss as soon as is practicably possible. This instruction needs to be imparted to all new employees upon induction.

Accident report/investigation forms should be clear and easy to understand and to complete. Apart from the details of the injured party there should be provision for a summary of the events and circumstances surrounding the accident itself. Whoever completes the accident report document needs to do so with the assistance of the injured party. The summary of what occurred must be a summary of the actual words used by the injured party and their description of what happened. Clearly it is not going to be possible to write down everything that someone says as to the events leading up to and involving an accident but the summary should reflect what has been reported as closely as possible. Further, there should be provision for the injured party to sign the accident report immediately below the description.

Accident investigation also needs to be completed contemporaneously. If for some reason an accident is not reported immediately but only some hours or even days after it occurred then an accident investigation report still needs to be completed and as much information gleaned about the accident circumstances as is possible even though the investigation may have been prejudiced by the delay in reporting. It is better to have some information obtained at that stage than none at all months or years down the line when the claim becomes litigated and no evidence can be offered in defence of it.

Whilst an accident investigation should be comprehensive, naturally the more significant the injury the greater detail that should be expected to be found in the report. A camera should be available for accident investigation so that pictures of the scene can be taken as soon as possible after the event.

If an accident report makes little sense or involves machinery which it is known behaves in a certain manner and yet is contradicted by the accident description, then this can and should be challenged. However, the initial description of the accident should be as is alleged by the injured party. Only after that has been completed and signed off should any further mention be made of a challenge to that description by reference to machinery or a process of work which makes the accident description seem unlikely or implausible.

It is clearly important to preserve the scene of an accident before an investigation is undertaken. The area should either be cordoned off or a barrier put in place to prevent the accident scene from becoming disturbed. Once photographs have been taken of the area, and assuming that it is safe to do so the barrier/cordons can be removed.

Witness statements are vitally important at this stage and a short statement, again using the witnesses own words, should be taken from anyone who was in the vicinity of the accident and either heard or saw it. Further, consideration should be given to taking statements from those witnesses who were in the vicinity of the alleged accident but say they did not hear or see anything. If an accident did occur why was that person not aware of it? All too often, witnesses appear out of the woodwork several years after the event who provide detailed statements supporting a Claimant in a civil claim whom we were told at the time said they did not see anything but there is no written evidence to confirm that.

There is always a question as to whether an accident occurred because of a machinery defect or due to operator error. It is rare that an operative will admit to having carried out a task inappropriately or incorrectly and often the machinery will be blamed. Any such accidents need to be carefully investigated with the assistance of a maintenance engineer so that machinery can be checked to confirm that there are no defects and it is operating correctly. All of this needs to be written into the accident investigation report.

If an accident investigation determines that the accident occurred due to operator error and this involves a failure to follow instruction and training and their responsibility for their own health and safety then consideration must be given as to whether or not the injured party should be subject to disciplinary action. This needs to be conducted with the assistance of your HR team. This may be something as simple as a decision to counsel the individual about their unsafe behaviours and perhaps provide refresher training in certain areas. At the other end of the scale the breach may be so severe, such as deliberately undermining machine guarding or exposing other employees to a significant risk of injury, that the only course of action is dismissal. Any such disciplinary action needs to be properly recorded within the individual’s personnel records and reference to it should be made within the accident investigation report.

We are seeing an increasing rise in fraudulent claims. These are becoming ever more sophisticated. The motor insurance industry has made great strides with potentially fraudulent claims such that these organised groups are now looking at alternative revenue streams. Employer’s liability claims and public liability claims are now being heavily targeted.

Proper investigations should expose potentially fraudulent claims and at least raise suspicions which can be passed on to your Insurers for further consideration and investigation by them. The Insurers retain various procedures, processes and access to fraud databases to assist them in exposing fraudulent claims.

Finally, any investigation report should conclude with the lessons to be learned from an accident which is the primary purpose for it being reported and investigated. Corrective actions should be carefully considered before being put into an accident investigation report and ideally this should be done by a health and safety professional such as the Health and Safety Manager for the site. It is totally inappropriate for a Line Manager who carries out the accident investigation to consider what, if any, corrective action should be appropriate in response to an accident. This is best done by someone who has a better understanding of health and safety and an overview of the whole of the site in a professional safety role.

Corrective actions should be measured and considered and not a knee-jerk reaction to a one off incident. Any corrective actions suggested should be reasonable and practicable in the circumstances.

If all reported claims are properly investigated, statements taken from witnesses where appropriate and photographs made available for your Insurers and perhaps lawyers should litigation arise’ this will greatly assist with the potential defence of claims. Further, this will provide useful information for the company in order to learn from past claims and how to improve upon accident investigations in the future.

There is a substantial direct and indirect or hidden cost which arises out of claims for accidents at work. Apart from the damages payable to an injured party there are the injured party’s solicitors legal costs [which will often exceed the damages paid] together with sick pay, the cost of replacement staff or overtime for existing staff during an injured persons absence. Lost time from production, the lost time spent on investigation and dealing with Insurers and their investigations correspondence together with lost stock which may have been damaged as the consequence of an accident. It is estimated that the actual cost of claims will be ten times the direct costs in terms of damages and legal costs paid.

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