Introduction
When an accident occurs on a vessel, an investigation is necessary. As safety is always a primary concern, it is important to determine what happened, how it happened and how it can be prevented from happening in the future. Although determining how to prevent a future accident is important, it is also important to be responsible while generating documents as the process unfolds. These investigative documents will also be used by the injured party's legal team to prove liability for the injured worker. A company can create a safer workplace while reducing its claim exposure by developing a plan to ensure that the documents generated during the investigative process are helpful in preventing a future accident while preserving its ability to defend a claim against an injured party.
The first document generated following an incident is usually a simple accident report. This report is often prepared by the vessel crew and briefly describes the specifics of the incident. Accident reports are an important first step in notifying management that an incident has occurred. The submission of a report usually starts the investigative and claims processes. As these forms are usually filled out by the vessel crew, it is important to train the crew how to complete the forms properly. A simple accident report should provide information regarding:
- when the incident occurred;
- generally what happened;
- the time of the incident; and
- witnesses to the incident.
Once this information is sent to the office, the claims department will have all the information that it needs to begin processing the claim and the safety and operations departments will have all the information that they need to begin the investigative process. As this document is prepared by the vessel crew immediately after an incident, it should draw no conclusions as to the cause of the incident. There are many factors to be considered by the post-incident investigative team that are not obvious to the crew immediately after the incident.
Another form of communication that can cause issues for a company is the exchange of texts or emails during the process of investigating the incident. Before the advent of email communication, company employeescould discuss potential causes of an incident by talking about them. If one of the ideas mentioned by an employee was found to be inaccurate, the theory was discounted and never recorded in writing. However, with the advent of email communication, any comment that an employee may make about a potential cause of an incident is immediately recorded, preserved and available for review by the claimant's legal team.
Although there may be a series of subsequent emails that debunk the theory, the cross-examination testimony taken from the employee who wrote it may be damaging to the company. Essentially, the damage is caused when the plaintiff's counsel asks, "So, as of a certain date, you believed that the cause of the accident was…" Unfortunately, the only answer, as it is preserved in writing, will be a resounding yes. The jury may never listen to the explanation as to why he or she was incorrect at that particular time, especially if the theory tracks the liability theory pursued by the claimant.
Thus, all employees – both vessel and land based – should be aware that anything that they place in an email or a text message could be taken out of context and used against the company. Therefore, it is important not to draw any premature conclusions about the cause of an accident while communicating with co-workers via text or email.
Many companies use a root cause analysis as an investigative tool. These safety programmes provide an investigative framework where the cause of an incident can be determined. Although such a systemic approach is a great process for determining what could have caused an accident, it also has limitations as it is process oriented. In addition, some programmes – and many operators – mandate that this process be done without taking into account the fault of the injured employee. Although eliminating employee error as a potential cause of an incident could make operations more 'dummy proof' and a bit safer, it does not fit in with the reality of how a particular incident occurred. In reality, many incidents are caused by employee negligence and not the fault of the employer.
Subsequent remedial measure report
Another document that often causes companies problems is a report often referred to as a 'subsequent remedial measure report'. This report usually pinpoints the cause of the accident and makes a recommendation as to how this type of accident may be avoided in the future. Although subsequent remedial measures are not admissible during trial, they are often discoverable as they are usually nothing more than an accident report with conclusions. As such, the recommendations made in this report may provide a roadmap to opposing counsel as to how to prove liability.
For example, assume that an employee fell from height and the investigation determined that the injured employee would not have been hurt had he been using a fall arrest system. A subsequent remedial measure mandating that employees working at height must use a fall arrest system may not be admissible at trial. However, the claimant's counsel could still ask the question, "Would it have been possible, at the time of this accident, to use a fall restraint system to avoid this type of accident?" Thus, if this recommendation is made in an inadmissible but discoverable subsequent remedial measure report, the damage has been done. As such, it is important to look at how a subsequent remedial measure report is prepared and properly evaluate the conclusions that it draws before putting it in writing.
The last documents that are often generated as a result of this investigative process are witness statements. The cases regarding the discoverability of witness statements are unclear and the issue of whether a company must produce witness statements tends to be decided on a case-by-case basis. The court usually examines when the statement was taken and who took the statement to determine whether the statement is protected from disclosure. The highest level of protection goes to witness statements that are taken by the company's lawyers after they have had an opportunity to conduct an investigation and determine a legal strategy for defending the claim. These statements are usually protected as attorney-client privilege and material prepared in anticipation of litigation. The least protected statements are witness statements taken by crew members aboard the vessel immediately after an accident. It is safe to assume that these witness statements, which are often written in the crew member's own handwriting, are almost always going to be produced. Falling in the middle are witness statements taken by investigators or insurance adjusters sometime after the accident.
Statements taken from the injured employee are always discoverable and will always be turned over to the injured employee when the discovery process begins. In addition, any witness who provided a statement is entitled to receive a copy of his or her statement, regardless of who took it.
Considering that any statement may have to be produced to the other side, it is important that the statement be taken with an understanding that it could be produced during the litigation process and that anything included in the statement could harm the company's defence to the action. As such, any employees taking statements from crew members should be trained on how to prepare a statement properly in order to help to lock down positive witness testimony.
Unfortunately, incidents occur during the normal course of operating a shipping company. There is a balancing act between:
- protecting the company's ability to defend a claim brought by an injured employee;
- determining the cause of the incident; and
- preventing it from happening again.
Developing a plan and training employees is the key to the efficient execution of such an investigative plan. A little time spent developing a plan can create an environment where the cause of an accident can be determined, future accidents can be avoided and the company has an adequate opportunity to defend itself from any potential claims.
For further information please contact Lawrence R DeMarcay or Michael Harowski at Fowler Rodriguez by telephone (+1 504 523 2600) or email ([email protected] or [email protected]). The Fowler Rodriguez website can be accessed at www.frfirm.com.
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