A seminar in the light of a benchmark study in recent years at which lawyers and safety experts discussed whether and how they struggle with the legal aspects of incident investigation and how they deal with them.
The benchmark study provides a unique insight, a baseline measurement of a dilemma and how to deal with it. The benchmark study shows that those involved struggle with different perspectives and interests, and truly experience a dilemma. Some incident investigators are being restricted, while some lawyers feel that they are not listened to. Steps are being taken to escape from the dilemma. This involves collaboration between incident investigators and lawyers, open-mindedly bringing up the dilemma for discussion, and keeping it on the agenda.
Many incident investigators are basically unhappy about lawyers being involved in investigating a safety or environmental incident. They quickly tend to think that lawyers will restrict or impede the investigation and that they always find something to criticise in the carefully constructed investigation report, the recommendations, and the associated communication. Investigators believe that their investigations need to be performed in complete freedom and according to their professional discretion, and they don’t really think that lawyers acknowledge that. It’s necessary, they say, to get to the bottom of things so as to prevent similar incidents – or worse – in the future. A cautious and strictly legal approach is then inappropriate. For their part, when advising on and preparing an incident-related liability case, lawyers do not look forward to being presented with a far-reaching incident investigation and report that conceals nothing, and with which the affected organisation is then confronted mercilessly. This makes it difficult to defend the legal position. And the outside world runs away with it all: legally relevant aspects and concepts are often filled in with the aid of investigation findings.
Investigators believe that lawyers does not want to learn anything at all and therefore fail to serve the interests of safety. A few even claim that the influence of lawyers hampers discovery of the truth and the independence of the investigation. This does not imply, incidentally, that organisations yield to this dilemma in practice. According to the benchmark study, learning and eliminating safety risks is still the priority in almost all organisations. But in a few organisations that is a bit different or there is a danger of giving in. This has to do especially with experience in previous instances in which the organisation and its management felt the legal implications of an incident and incident investigation. In such cases, the legal counterpressure wins out against the wish to share information or to go more broadly or deeply into the underlying causes. That legal impact cannot and should not be underestimated.
What the benchmark study shows is that collaboration can provide a solution. It ensures understanding for the various different interests and objectives, as well as an understanding of the diversity of conceptual frameworks. Lawyers will see – and be shown – how probabilistic connections do not provide deterministic certainties, while investigators will understand better that their findings and reports on those findings can be perceived – and thus often will be perceived – as such in the legal world. The benchmark study concludes with proposals for definitely continuing and strengthening cooperation between the two disciplines.
During the seminar, security investigators, managers, and lawyers discussed incident investigation and its legal impact. A number of industry experts with extensive experience in this field spoke of “valuable lessons and follow-up methods” for advancing from dilemma to cross-fertilisation. Discussion will continue at the forthcoming conference of the Dutch Association of Safety Professionals, and we will remain involved (round table discussion). If you want to contribute ideas about this subject or discuss any aspects that you need to deal with in practice, please don’t hesitate to contact us.