Accident Investigation - the Corporate View 4

[JOM]

<let's call this topic &quot;accident/interview/statement - Part II&quot;>

I'd like to add this &quot;contribution&quot; to the discussion from The Melbourne Age (Australia), Jan 25 2003. It comes from an article by journalist Gary Tippet, covering a coronial inquest into a five-fatality road smash where the safety of a stretch of highway was called into question.

I live in Melbourne but this is purely coincidental with my hypothetical scenario - I knew nothing about this affair. Very timely indeed. I had in mind a couple of other industrial accidents.

&quot;VicRoads&quot; is the roads and traffic authority of the State of Victoria.

<quote>

The instruction to VicRoads staff was explicit: when investigating &quot;serious incidents&quot; involving fatality or serious injury; where potential liability was above $20,000; or where there is a prospect of court proceedings involving censure of VicRoads or its officers, &quot;No written assessment of the site or accident by VicRoads should be documented.&quot;

The edict...arose from a report to VicRoads' Corporate Management Group in June 1999 aimed at managing incidents that might expose the corporation to liability for damages, prosecution or adverse findings by tribunals...

&quot;It is becoming fashionable to blame the road rather than the driver,&quot; it [the edict] said.

The number and cost of successful claims could be kept in check by &quot;managing the nature and volume of reports and information generated in the aftermath of a liability accident&quot;. Staff should provide oral reports to their managers rather than unnecessary documents &quot;which may be subject to compulsory disclosure to persons with opposing interests&quot;. Any such documents should be labelled as being
solely for the purpose of obtaining legal advice.

<unquote>

This edict did not sit comfortably with the Coroner. His findings will be interesting.

If that is the managerial attitude of a government body, which is a regulator, inspector, investigator and prosecutor, then why should an individual employee, an ordinary Joe or Mary, take any different approach?

Note the mention of &quot;persons of opposing interests&quot;? That's the key factor in my initial question, although I wasn't quite aware of it at the time I asked it. The discussion from all has brought this to the surface.

What do you think about VicRoads' policy? Anyone have other examples of corporate attitude?



Cheers,
John.

 

[PM]

I'm not surprised by VicRoad's policy. No doubt they are responding to trends of recent years where enforcement agencies pursue wrongful or questionable convictions merely because it looks good in the press and because governemnt bodies are generally easier targets. It's appalling to see this trend increase. The Public can't help but form cynical attitudes toward government when they see one branch of their government attempt to subvert the legitimate role of another.

VicRoads probably believes it is preserving its right to remain silent during a hostile prosecution, but even though this is a fundamental legal right routinely used by John Q. Citizen, it is considered an immoral afront for government agencies to defend themselves in this way against wrongful prosecution. Never-the-less, I'm simpathetic toward VicRoad's plight even though their methods are questionable.

Regards,

 

[PSE]

Looks like the Lawyers win either way. Other than providing a lack of &quot;physical evidence&quot;, I am not sure how well that policy would actually work. The individuals conducting a post-accident investigation may still be subpoenaed to testify or provide depositions. If the post-accident analysis shows no-fault on the part of VicRoads, it might be in their best interest to document it, at least to show due dilligence upon their part. If fault is found, there is overiding obligation to serve the public interest especially if there remained possibility of future harm. VicRoads takes its lumps and perhaps tries a countersuit on appropriate subcontractors involved in the project for substandard work.

I would hope that the Australian government will learn from the craziness here in the US and place either limits on lawsuit damages, or establish a scale based upon liability. Perhaps a differentiation between road maintenance (condition) and design. While VicRoads has my sympathies as well, they may incurr greater liability if anything remotely smells like coverup to a lawyer.

Regards

 

[GregLocock]

I've seen examples of this in the auto industry. At one point the company I worked for (circa 1988) decided that no vehicle would ever fail a safety related test. So if it passed you issued a report. If not, not. Not even a memo.

I imagine this led to problems since in effect you could not prove that a design had been tested to best working practice.

Certainly in the company I work for now there are reasonably strict guidleines for how you report safety related defects, but there is no question that failures have to be preoperly reported.

Cheers

Greg Locock

 

[i278]

As a young engineer with an entrepreneurial bent, I find that stories such as this makes me increasingly discouraged and cynical. (and the threads in this forum, while educational, aren't helping)

I'm beginning to think that VicRoads' real problem is not that they're hiding facts, but that they were naive enough to write down the policy. I'm the kind of guy that delights in maintaining a thorough and competent technical paper trail for any project I work on--I'm not pleased that I'm starting to think like a lawyer first, engineer second.

So, my question to more experienced engineers is: how do you keep from getting down when it seems that successfully persuing a project has less to do with technical merit than managing liability? Or has it always been like this, and it's all just part of practical professional education?

Sorry to be so corny and/or melodramatic, but this has really been bothering me lately.

Regards

 

[peebee]

i278:

What you're going through now will stay the same for a while, and then things will get worse. While this is not necessarily a recommendation, I know two engineers that dealt with their cynicism and depression by having nervous breakdowns.

At least you didn't fall into the trap of becoming a math or physics major. You have a stable job, at least compared to, well, there must be other professions with less job stability, I just can't think of any right now. Too bad, though, that you didn't switch to law, medicine, or even business while you had the chance.

Anyway, hope I helped. Feel better now?

 

[DaveVikingPE]

Technical merit will triumph over liability management every time. It may take years, but nothing beats a solid defense of good engineering and due dilligence. This means good, readable calculations with an accompanying design narrative. Then again, if you don't do this and a design is solid, the drawings will prove you correct. Keep a contemporaneous record of all your meetings, discussions, etc. and you'll be OK. And keep multiple copies of them, too - in different buildings. Since it may be perceived that the lawyers have cornered the market on liablity, then liability must be treated as an engineering variable or even as a material. This has to do with the nature of the clash of the legal and engineering industries (look at how medical doctors handle liability issues).

We become engineers because we like to build things. anyone can go out and win a lottery, but how many of them can do calculus? Oh, bad analogy.

I deal with my cynicism by being really cynical. I don't like people in general, so I expect the worst from them. I also know that being a good BS-artist is valuable talent, so is being good at &quot;positioning&quot; oneself. These really are important qualities provided they are used for good and not evil.

 

[Hush]

i278

Good engineering requires a product be assessed for function, ease of manufacture, ease of service, cost, risk, etc. Product liability is just one of the risk factors.

As to not producing reports because they may be used against the company in a civil suit, I can't see where that would be advantageous. The engineer who would have produced that report could still be subpoenaed. I would think the company would rather have that engineer testify on the basis of reports and notes made at the time of the incident rather than looking incompetent because his memory is rusty.

If you want an over the top example relating to this thread, check out a movie called Class Action. I think it should be required viewing for all engineering students.

 

[JOM]

Dear i278,

Sorry the forums are adding to your depression. My guess is you don't get &quot;solutions&quot; so easily, if at all, from forums on this type of topic. It's not like &quot;how do I stop the foaming in our distillation tower?&quot;

If you're at an early stage of your career, I'd humbly suggest it's better to learn the reality now rather than later. The simple reality is that the dollar rules, and the people closest to the money stream have the most influence.

I laughed when you said VicRoads was naive in putting its policy in writing. It was fairly stupid, but if you have a policy, how else can you inform personnel? It seems it was a slipup that the policy came to the Coroner's attention.

I like recording all my activities on a project too. But a few years ago, the firm in charge (a management consultancy) took possession of all project documents, including diaries, to be kept for 7 years. This was for their own self protection, not mine.

I now keep my own private project diaries that I will not surrender to anyone, altho I haven't been put to the test. I think it is extremely risky to allow your words or writings to be utilised by other parties. There is no guarantee that they will do it in good faith. In that sense, VicRoads policy makes sense to me. But they must meet their public protection responsibilities.

There are problems that have yet to be even defined, let alone addressed. Accident investigation is not nearly as clear cut as one might first think.

Anyway, grow by doing what you naturally like as well as you can do.

John. Cheers,
John.

 

[JOM]

&quot;liability must be treated as an engineering variable&quot;
- DaveViking

Great comment, Dave. It follows that it ought to be a component of engineering education.

<snip>
Hush:-
As to not producing reports because they may be used against the company in a civil suit, I can't see where that would be advantageous. The engineer who would have produced that report could still be subpoenaed. I would think the company would rather have that engineer testify on the basis of reports and notes made at the time of the incident rather than looking incompetent because his memory is rusty.
<unsnip>

There is one way to avoid producing incriminating evidence -do not perform an investigation of the accident.

Legal jurisdictions that require a company to investigate and report are the exception, not the rule (at least in my country, Australia. But I think it is similar in the US and Europe. Anyone knows different, I'd love to hear. Contra Costa County, CA, has remarkable laws on this.)

Fact of the matter is a company may not be required to investigate at all.

Here's another trick to frustrate your legal enemies:-

You do not ask your own engineers to investigate but you call in an external group. The wonderful cleverness of this ploy is that whatever they produce is their opinion and not yours.

And to add a final Machiaevellian touch - your lawyer does all the liason with the external team. That makes it all protected under legal privelege, and can't be exposed in court. Isn't that brilliant? It has been done. Cheers,
John.

 

[PM]

While perusing this thread I inferred that &quot;liability management&quot; was being applied as a euphemisim for obfuscation and prevarication. If this is the case, it would really be a cynical view.

Liability management, at its core, is a process to avoid damage to others. Obviously, without injured parties the organization is protected as well.

Regards,

 

[Ron]

I know nothing about Australia's legal system, but those statements would not be surprising in the US in a corporate setting. Actually, there are some very good reasons for having such a policy, provided its intent is not to &quot;obfuscate or prevaricate&quot; as mentioned, but to protect due process.

Any corporation or government agency has individuals who are not trained in the protection of &quot;sensitive&quot; information. In the US, we can protect this information from improper or inappropriate contextual misuse through the attorney-client work product privilege. Just a single statement, innocuously intended, can improperly shift the perception of liability from one party to another if enough &quot;weight&quot; is given that statement. If written excerpts of factual information are taken out of context or improperly interpreted by others, the result can be devastating, even when there was no devious attempt or intent.

I believe it is important to allow both sides of an issue to protect their factual information and use a civil process by which an understanding can be reached about the intent and interpretation of such information. When such cannot be reached, then a trial or tribunal of some sort is indicated; however, the playing field has a better chance of starting out level than to allow a free-for-all process of discovery and misuse of information.

 

[JOM]

Ron,

Very thoughtful comments. You've expressed the point I've been trying to fathom just right:

<snip>
If written excerpts of factual information are taken out of context or improperly interpreted by others, the result can be devastating, even when there was no devious attempt or intent.
<unsnip>

This is the potential problem that the individual employee, in the emotional turmoil following some accident, will not be thinking about. I thought the VicRoads policy is enough of an argument to support an individual's policy to remain silent, until protection from misuse can be guaranteed.

There are two actual cases of serious catastrophic accidents where an employee in each case made an error that lead directly to the accident. In one case, the employee took legal advice to remain silent. In the other, the employee submitted to company investigation and the resultant statement ended up as evidence in court against the person. The first was not charged, the second gained a criminal conviction.

Cheers,
John.

 

[PM]

Snipped from JOM . . .&quot;In one case, the employee took legal advice to remain silent. In the other, the employee submitted to company investigation and the resultant statement ended up as evidence in court against the person. The first was not charged, the second gained a criminal conviction.&quot;

JOM makes my point far better than I could. There is an ugly truth about criminal and quasi-criminal prosecutions, namely that they are not seeking the truth, but rather they are seeking convictions. Prosecutors argue it isn't their job to sort fact from fiction, . . .it's the judge and or jury's function. This leaves the prosecution to spin all or part of the evidence into any case they want. Wrongful convictions are at record numbers in all western democracies in recent decades, . . .mostly due to improper actions of their prosecution and investigation services.

At one point it was only those on the fringes of our society that had reason to fear our system, but unfortuneatly, many of us in the main stream (including Australian Gov't departments) now have a very reasonable apprehension of bias on the part of our prosecution service. I fear if this trend continues, that society may lose confidence in the system.

Regarsds,

 

[JOM]

Hi All,

I've found this a most useful thread. Perhaps others have too. I started off thinking I might have a skewed view of this issue, but I see solid opinion re the problems facing persons subject to investigation. Some have said &quot;take it on the chin&quot; but still with the caution &quot;first, get a lawyer&quot;.

I haven't noticed anyone robustly defending the investigators' rights over and above the individual's.

PM said &quot;There is an ugly truth about criminal and quasi-criminal prosecutions, namely that they are not seeking the truth, but rather they are seeking convictions&quot;

I did not know this until I observed a couple of trials, then did some reading to find others have been talking about this for some time. The absolute fact of the matter is that trials do not have the purpose of finding truth. Cheers,
John.

 

[PM]

Snipped from JOM &quot;The absolute fact of the matter is that trials do not have the purpose of finding truth.&quot;

I didn't mean to imply that trials do not set out to find the truth, . . . on the contrary I think that is their purpose. I wanted to press the point that state prosecution services often don't seem to give a damned about truth even though lawyers are ethically bound not to corrupt justice. Many prosecutors now feel relieved of self constraint to truth because the defence lawyers and the judge can keep them honest. Given investigators' extremely close association with prosecution services, even they are increasingly &quot;spinning&quot; the facts to support any convenient position that supports their case.

The system only works well when both sides are equally strong and formidable. When either the defence or the prosecution are overpowering, truth is usually the first casualty.
Regards,

 

[JOM]

&quot;I didn't mean to imply that trials do not set out to find the truth, . . . on the contrary I think that is their purpose&quot;

Sorry, PM - didn't mean to put words in your mouth. I'll rephrase what I said: a trial is not an inquiry - it doesn't seek to shed light in all the dark corners of the event in question. In theory, it ought to bring out the truth, but only on the matters raised by the lawyers.

I follow your points about intentions of prosecutors and investigators. That seems to be a layer of the judicial process that is obscured from the public view.

How are lawyers constrained to tell the truth in court? I know they have ethics, but I've heard lawyers say things of historical or technical matters that are wrong. Not just putting a spin on the facts, but just plain wrong. No-one tests the truth of what they say. Cheers,
John.

 

[PM]

JOM:

Certainly, no offense taken.

I doubt lawyers in most jurisdictions are prohibited from expressing opinions on matters for which they have little or no knowledge. Engineers, on the other hand, have just such an ethical constraint in many jurisdictions. Perhaps this is why engineers are culturally inclined toward a search for the truth, albeit scientific truth, while lawyers are in a search for what they can 'spin'.

I shouldn't dump on our professional bretheren, cause lord knows I may need them some day.

Regards,

 

[JOM]

PM,

I shouldn't dump on our professional bretheren, cause lord knows I may need them some day.

Indeed! But you can still dump on them. They're used to it. Cheers,
John.

 

[plasgears]

JOM,
Good advice about keeping a private record. I do the same. I think it's a good hedge against future actions, whatever they may be. No doubt you've heard of the doomsday file. I keep a file that is potentially a response to a doomsday file. There may be people in high places who may want to know all sides of an issue.