In health and safety law, a near-miss may constitute a significant event and should be responded to in a similar way to any incident which may cause injury or death. However, some organisations inevitably take near-misses less seriously because the organisational impact is less significant. This may lead them to not investigating a near-miss, or investigating less thoroughly than they usually would if a fatal or serious incident would occur.
However, a near-miss is very important from an investigative standpoint. It can signal where health and safety controls need to be tightened, or management oversight needs to be more robust. In some cases, particularly if combined with other near miss events, it can signal significant operational and legal deficiencies which requires immediate attention at senior management / Board level.
What is a near miss incident?
A near miss can be summarised as an incident that did not result in injury, illness or damage, but had the potential to do so. Sitting at the intersection of risk management, legal compliance, workplace culture and incident prevention, near misses provide an early warning that controls may be failing and that a more serious incident could occur in the future.
Examples of near misses at work:
A warehouse pallet falling from racking but lands in an empty aisle;
A vehicle narrowly avoids colliding with a pedestrian in a depot;
A crane load swings close to workers but causes no injury;
Health and safety law is concerned about the creation of risk, not risk that has eventuated. Although many organisations are prosecuted in high profile fatal and serious injury incidents, organisations can also be prosecuted for creating a risk of harm. Simply ignoring a near-miss incident can lead to significant regulatory risk both for the near-miss itself and for any future fatal or serious injury incident which is more likely to eventuate if controls are not implemented following that near-miss.
We would recommend that organisations review their incident response procedures to ensure that near-misses are included and are broadly defined. Similar investigative responses will be required in the same way as an incident causing injury or death, even if the business disruption is not as significant.
A near-miss has the potential to involve a breach of health and safety law. Penalties for offences under health and safety legislation include unlimited fines for businesses and up to two years in prison or unlimited fines for responsible individuals. Therefore, we would recommend that an independent legally privileged internal investigation is conducted following a near-miss incident. For many organisations, this will mean the instruction of external specialist legal counsel. Legal professional privilege is particularly beneficial where there is external law enforcement involved, or anticipated litigation.
For many organisations, an independent internal investigation can help understand:
What recurring hazards are emerging.
Whether the near-miss is illustrative of wider compliance issues?
Identifying regulatory risk within the organisation;
Allow an organisation to investigate thoroughly and insulate the Board/senior management from criticism.
For many organisations, a protective legally privileged investigation can help understand all of the above, whilst also allowing an organisation to investigate thoroughly, obtain timely legal advice which will inform litigation strategy moving forward and insulate the Board or senior management of the organisation from criticism of an investigation not being impartial.
Weightmans internal investigations team is well placed to responding to significant incidents including near-misses and conducting legally privileged internal investigations in such cases. We also work with organisations at the initial stages of preparing or amplifying their incident response protocols.
