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
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
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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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