Damage control: how to minimise the fallout from a serious injury

Analysis

Damage control: how to minimise the fallout from a serious injury

When someone is seriously injured at work, helping the injured person is the top priority. But sooner or later, the unwelcome question will be asked: What’s our liability here?

When someone is seriously injured at work, helping the injured person is the top priority.

Depending on what has happened, ensuring the safety of the site may be equally urgent – for example, in the case of structural failure and collapse, explosion or fire. Accounting for all personnel, dealing with required notifications, and liaising with paramedics, safety inspectors and others as needed will all demand time and attention. Debriefing traumatised staff may also be necessary.

But sooner or later, the unwelcome question will be asked: What’s our liability here?

Serious accidents can have serious financial consequences for the bottom line. Fines of up to $3 million are possible for Category 1 offences (reckless disregard for health and safety). But pecuniary penalties are not the only costly consequence – other possible penalties including imprisonment of directors, publicising their wrongdoing and court-ordered undertakings may also be imposed on the business.

This is in addition to the damage to corporate reputation and the massive blow to productivity.

Minimising legal liability


Of course, the most effective ways of managing the risk of liability due to a serious incident involve actions taken before any accident happens. If a business is to be prosecuted for breach of work health and safety laws, measures put in place by the company before an incident occurred are often taken into account by the courts and considered to be mitigating factors.

It will be a major advantage to a business if it can demonstrate that polices, risk management procedures, safe working methods, adequate training, instruction and supervision were all in place and monitored with due diligence.

Evidence of good corporate citizenship can also help to reduce a company’s liability.

However, risk control strategies established after an incident or injury can also improve a company’s position in the event it is prosecuted for a breach of WHS laws.

Compliance with notification and non-disturbance requirements


In the event of a prosecution, it can help if a company can show evidence that incident notification requirements were fully complied with. The WHS regulator must be notified of incidents such as a death, serious injury or other dangerous occurrences, as specified in the regulations.

As far as is reasonably practicable, the site of a work-related death, serious injury or other dangerous occurrence must not be disturbed until the site inspection by the regulator is completed.

Providing full cooperation to the investigation


The business should give its full cooperation to the regulator’s safety inspectors during their investigation. Under the law, inspectors have powers to enter premises, obtain documents and gather other evidence. If a company helps inspectors with their task – for example, by giving them information they might not otherwise have, even if it reveals a degree of culpability on the part of the organisation – this can make a discount more likely when the court is deciding on the appropriate fine or other penalty.

Actions taken to prevent similar incidents in future


Judgments handed down by the courts often make particular mention of steps an employer took after the incident to try to prevent anything similar happening in future.

Such steps might involve, for example, changing certain work procedures, providing relevant training to employees, or adopting new management reporting requirements to ensure the implementation of modifications to plant, process or systems. Such post-incident remedial measures can stand the business in good stead with the court. Increased attention to health and safety generally can help to reduce the level of the fine.

Acknowledging responsibility and showing remorse


Attempts to deny responsibility and blame others without solid grounds to substantiate such claims generally do not go down well in a prosecution. The courts’ judgments often explicitly take into account evidence of remorse and contrition for the incident and its consequences, and efforts to assist injured workers and their families. An early guilty plea can result in a considerable reduction of liability.

All of these post-incident strategies can improve the likelihood of discounts on fines handed down by the courts for beaches of WHS laws. But needless to say, they cannot fully compensate for establishing good safety management systems in the first place.
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