The steps a business should take following a workplace accident are sometimes unclear, particularly in light of the abundance of safety consultants and lawyers that practice in areas covered by the Occupational Safety and Health Act 1984 (WA) (OSH Act). Whilst larger organisations may have clear procedures that identify the steps to be taken, small and medium sized businesses often, for various reasons, do not. This is particularly the case when the business lacks a dedicated occupational safety and health manager.
If you are one of these businesses and you experience a workplace fatality, the immediate necessity of responding to danger, contacting emergency services and speaking to family members usually occurs automatically.
However the best approach to the tasks of:
- complying with the obligation to notify the appropriate regulator (WorkSafe WA or the State Mining Engineer);
- investigating the incident; and
- making appropriate and timely changes to the workplace;
can be daunting, particularly given the trauma your employees have just been through.
It is at this point that the assistance of a lawyer can add real value. They can provide a clear direction for preventing further incidents and limiting the liability that you and your business may face as a result of a WorkSafe investigation and prosecution.
Do you need a lawyer involved in your workplace accident investigation?
Businesses should engage lawyers to assist them to manage all serious workplace incidents. We consider an incident to be a serious workplace incident whenever the employer is obliged to report it to the appropriate regulator (Worksafe WA or the State Mining Engineer).
Regulation 2.4 of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations) sets out the types of injuries that must be reported to WorkSafe WA. It includes fractures and amputations (specific to certain body parts) and the loss of sight to an eye. It also includes any injury that a doctor believes will require the employee to be off work for 10 days.
If a lawyer manages the investigation of a serious workplace incident then the materials generated from it (assuming they are created for the dominant purpose of providing advice to the employer on OSH Act liability) will be subject to what is known as “legal professional privilege”. That means those documents will not have to be disclosed to third parties such as WorkSafe WA.
In the context of an incident investigation report this is quite important, as the report itself may identify inadequacies or failures of the workplace systems that caused the serious workplace incident. It would be undesirable if such a report was then used against the organisation in any WorkSafe prosecution.
Legal professional privilege can be “waived” in certain circumstances, thus both the client/business and their lawyer need to ensure that the information contained within the report is handled in a manner that will enable legal professional privilege to be maintained. In a practical sense this means that:
- the report should not be:
- distributed to other parties (or even referenced when speaking to other parties); or
- used for a purpose other than for obtaining advice on OSH Act liability;
- any actions taken by the business to manage any hazards (that contributed to the accident) are identified and remedied as a matter of urgency, not following the provision of the report.
Actions outside of the above could result in WorkSafe WA gaining access the report, likely after a significant and expensive court battle over whether the privilege has been waived.
For more information on this Update or any workplace health and safety or serious workplace accident contact partner Tom Darbyshire on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.