24/03/2021
Incident Investigations and Legal Professional Privilege
The purpose of Legal Professional Privilege (LPP) is to protect confidential communications between a lawyer and client from production in court proceedings. The rationale for the creation of the privilege was to enhance the administration of justice and the proper conduct of litigation by promoting free disclosure between clients and lawyers, to enable lawyers to give proper advice and representation to their clients.
Leaving aside the human impact of workplace events, for many safety professionals an incident is an opportunity to identify the cause/s so that we can learn from the incident. There are a number of incident causal analysis techniques. Each espousing simplicity, repeatable outcomes, better understanding of human factors etc etc.
There is a dichotomy between the purposes of safety investigation/report and an investigation report requested by your lawyers. Simply put, Lawyers are interested in facts - who, what, when. By knowing the facts, they are better able to advise you on your rights and obligations. Safety investigations (reports) seek to understand why someone did what they did, or failed to do what they should do. The information within the report is (in most cases) carefully worded to avoid blame (in a Blame Free Culture). However, and due to the causal factors identified within the investigation methodologies, the Company is likely to be found at fault. I.e. lack of systems anticipating the incident, lack of compliance with it's own systems etc).
Once the report is completed (even in a draft stage), unless the dominant purpose of the report was for the purpose of obtaining legal advice, you will not be able to rely on LPP to prevent disclosure. For this reason, I suggest all safety professional take a moment to review how they investigate and manage incidents.
21/03/2021
21/03/2021