Human Error and Blame

[JOM]

Hello to all who engaged in the discussions about accident investigation. I'll start this as a new thread (when they get long, they sometimes take me a long time to download. Bit of a change in direction too.)

I don't know about others, but I can get more genuine value out of these forums than by attending an expensive conference. So much wisdom, backed up by experience. Should be bottled.

I follow rail and other industrial accidents in Australia. I watched a trial where a train driver was prosecuted for failing to take care of the safety of others in the workplace. He was found guilty, given a criminal conviction and fined $3,000. Yet the magistrate (judge) was satisfied the driver thought he was performing safely and made an error. I can't fathom how making an error turns a person into a criminal. I can't fathom what society gains by making such a person a criminal.

I'm trying to raise some consciousness of this matter among the Australian Safety and Engineering Professions. It is routinely stated that human error is to be expected and systems must be designed to accommodate error. Only I find this is not adopted policy among companies and the judiciary.

This train driver is the fellow who answered company investigators on the day of the crash. His statement came back as evidence against him in court. It was used by persons whose mission statement was to gain a prosecution. I thought it was immensely unfair and wondered if the driver regretted answering company questions.

That's what lead me to asking about advice re submitting to interview if you're the one in the spotlight. I've read everyone's comments carefully and every single one was thoughtful and useful. It gave me support to write something about this case. Thanks.

If anyone wants to read it, it's at:

http://au.geocities.jom3205/articles/human_error_and_blame_holmesglen.htm

For me, this has opened up fundamental questions about the purpose of accident investigation and the protection of witnesses. I'm finding it a murky area.

Thanks again. Cheers,
John.

 

[JOM]

arrrgh....

The correct URL is :-

http://au.geocities.com/jom3205/articles/human_error_and_blame_holmesglen.htm

sorry
Cheers,
John.

 

[Haf]

JOM,

Good post. Gives a lot of food for thought.

Here are my thoughts. People, in general, look for accountability (i.e., someone to blame), when accidents happen. I think one theory is that the same accident is less likely to happen again if someone is held accountable and punished. On some levels, this probably works. I bet that this train driver's colleagues won't make the same mistake he made in the future.

The reality is that punishments many times depend on the outcome of the mistake. Given the same mistake, an accident that involves injury and/or death to people is much more likely to result in severe punishments. On the surface, this seems unfair, but that doesn't make it wrong.

Also, let me pose the following question:

Where do you draw the line between a person who consistently makes "human errors" and a person who is incompetent and/or negligible?

One other thing: If the system was more lenient, nearly every accident would be chalked up to human error. Reminds me of the lab reports I graded back in grad school. Lazy students nearly always blamed experimental error on "human error."

Haf

 

[GregLocock]

I think one reason that punishing someone who makes an honest mistake is "pour encourager les autres". If you are in a position of responsibility for someone else's safety then is it not reasonable to accept that if you screw up you will be in trouble?

Cheers

Greg Locock

 

[PM]

JOM excellent post.

Couple thoughts:[ol][li]I doubt the Occupational Health & Safety legislation in Victoria State is part of Australia's criminal code. Therefore the driver was not convicted of a criminal offence. While the distinction may seem triffling, I'm sure the nuances are important when the driver is looking for a job or wants to volunteer as a coach on his son's soccer team.[/li][li]I believe Victoria's OH&S legislation is structured around a so-called "internal responsibility" system where individuals are prosecuted in proportion to their level of control over an incident. This is what confuses me, because the facts presented in the article support both the Driver and more importantly, the train Controller, the Director of Operations and probably the Directors as being guilty of safety violations.[/li][li]Errors in judgement are almost always one of the two or three coincident causes of every accident. In other words human error is almost always present in the case of OH&S convictions. In this case the magistrate seems to have concluded that "human error" together with flawed operational proceedures contributed to the incident.[/li][/ol]What seems to offend the sensibilities of most readers is the thought that the hapless Driver is the only one convicted. I wonder if the cited article is the full story of this incident.

Regards,

 

[PM]

I took the opportunity after work to review the incident report on this case and found a significantly well documented case against the Driver. I was especially taken by his claim that he was travelling half his actual speed. Statements like that usually down go down well with investigators, . . .even the unbiased ones.

Here's the URL for that report:

http://ndoiext02.doi.vic.gov.au/doi...f4a256a6b00254f10/$FILE/Holmesglen Report.pdf

Regards

 

[JOM]

Haf and Greg,

I appreciate your comments.

>People, in general, look for accountability (i.e., someone >to blame), when accidents happen

Yes, people seem to want (need?) someone to blame, but they do not want to bothered with detail or complexities.

>I bet that this train driver's colleagues won't make the >same mistake he made in the future.

Yep. But not because of the verdict. The circumstances of the crash would have spread through the driver network like wildfire. Every driver would have checked their behaviour immediately.

Safety Professionals today preach that it is misguided to punish the individual for making a mistake if our aim is future prevention. Sure, drivers will drive slowly and cautiously and that particular mistake won't recur in the near future. But, this year some other driver will make some other mistake. And next year, someone else will find another novel way to make an error. The evidence is overwhelming that employees will make errors. So, if we want to prevent accidents, systems must be designed to be tolerant to human error.

>Where do you draw the line between a person who >consistently makes "human errors" and a person who is >incompetent and/or negligible?

I don't think they are difficult to separate. Do you think it difficult?


Greg said:
>If you are in a position of responsibility for someone >else's safety then is it not reasonable to accept that if >you screw up you will be in trouble?

That's fine. So what do you think about the company and regulator? Careful of what you say. ;-) Cheers,
John.

 

[JOM]

PM,

The Victorian OHS legislation is part of our criminal code. Each state has its own legislation and there is no overarching Federal enforcement/punishment regime as occurs in the US (and Canada?) The Act (ie, Statute) is the same one used to prosecute companies of any size over breaches from minor to major.

Unless someone with legal credentials can correct me, the employee was given a criminal conviction. (And you're right - it is not a trifling matter, it is very serious).

When the magistrate gave her guilty finding, the question of conviction came up. The prosecutor asked for a conviction based on the seriousness of the incident; the defence argued against, based on the sound record and character of the man. The magistrate decided upon a conviction. So, unless there is some "grading" of the term I'm not aware of, the guy now has a criminal record.



This is what confuses me, because the facts presented in the article support both the Driver and more importantly, the train Controller, the Director of Operations and probably the Directors as being guilty of safety violations.

I live in Victoria, so I can't say such things.
;-)
Careful what you say.


In this case the magistrate seems to have concluded that "human error" together with flawed operational procedures contributed to the incident.

No - most definitely no. The magistrate could only consider the charge as brought by the prosecution. She had no scope to consider the performance of any other party. This was a trial of the driver alone, no-one else. We have to remember that the trial was not an accident investigation.

What seems to offend the sensibilities of most readers is the thought that the hapless Driver is the only one convicted.

Simply because he was the only party prosecuted.



I wonder if the cited article is the full story of this incident.

No, it's not "the full story" (it's only two pages). It's an attempt to point out that the judicial approach to accident prevention may not be in alignment with that of the safety profession. The article is accurate.


I took the opportunity after work to review the incident report on this case and found a significantly well documented case against the Driver.

In raising this issue, I wasn't setting out to defend the driver. The magistrate determined he was driving faster than the rules allowed. It's appropriate that a disciplinary action might follow. But she said she was satisfied that the driver was convinced, in his own mind, that he was driving safely, and that he made an error of judgement and a miscalculation. That deserves a criminal conviction?



Cheers,
John.

 

[PM]

JOM:

Australia sure sounds like a tuff place to have an industrial accident (in more ways than one). I didn't realize that anyone who was guilty of your OH&S laws receives a criminal conviction.

Is there any other information why others were not also prosecuted?

Regards,

 

[GregLocock]

I doubt the criminal conviction is automatic. Our (country-wide) record on squishing people at work is not very good - the prisons would be full of managers and directors.

Cheers

Greg Locock

 

[JOM]

PM,

Australia sure sounds like a tuff place to have an industrial accident

Actually, I'm not sure it is in all cases. What do you think of these three recent court decisons?

case 1: loss of top of finger, fine $45,000
case 2: leg crushed and degloved, fine $27,500
case 3: loss of life, fine $5,000

The more I learn, the less I understand.

Is there any other information why others were not also prosecuted?

I asked if any other party would be prosecuted and they said "no". I might ask the trickier question of "why not?".
Cheers,
John.

 

[JOM]

Greg,

I doubt the criminal conviction is automatic.

I've been doing some research cos I worried about stating this was a 'criminal conviction'. Think I could find a straight forward answer? No way.

I've got an up to date law text book (a really big one, so it must be a good one) and it talks about 'conviction'.

This is one quote: "a conviction is a formal and solemn act marking the court's, and society's, disapproval of a defendent's wrongdoing". It is part of the sentence.

Some laws require conviction automatically upon a guilty verdict. The OHS Act does not. It is an option for the court. I did not explain that there was no question of a custodial sentence here - ie. gaol (or jaol). I believe the defendent receives a certificate of conviction. Whenever he faces a form for travel, employment, visa, membership, and it asks "do you have a conviction?" he will have to tick the "yes" box.

I used the term "criminal conviction". I cannot find a definition of "criminal" or "crime". The more I learn the less I understand.


Our (country-wide) record on squishing people at work is not very good - the prisons would be full of managers and directors

<chuckle> you're not wrong, Greg.
Cheers,
John.