statement/interview after an accident 5

[JOM]

Here's a hypothetical.

Let's say you find yourself implicated in a serious incident (accident). You're the person who has made the "unsafe act" that may have directly lead to the accident. You may not be the only party involved, but you are the one that stands out. The consequences of the accident are severe and the authorities are investigating as well as the employer.

Now, the question is - would you voluntarily make a statement to the investigators? Would you submit to interview? I'm not asking what you would advise an employee to do, but rather what you would do if you were in the hot seat yourself. I'm more interested in pragmatism, not so much in idealism.

Even though this is hypothetical, it is of course a situation many employees find themselves in. Cheers,
John.

 

[nauticalmike]

Chances are if you're responsible then sooner or later whomever is investigating will learn of your involvement, and then the questioning will begin "why didn't you come foreward on your own," and anything you have to say in your defense will be viewed in a much harsher light than if you came forward on your own. I guess the difference is that of an explaination rather than an excuse. Also you have more control over the whole thing if you take it to them rather than waiting for them to bring it to you. Catch them on the defensive rather than them being on the offensive when they bring it to you. Bringing it to them gives you the chance to tell them what you want to before they have formed an opinion and before they have thought up a bunch of questions that are biased to support whatever opinion they have already formed about your involvement based on the information they have gotten from others who were probably skewing their answers to minimize the appearance of their own involvement/responsibility by implicating everyone else involved, you for instance.

 

[StephenEd]

Get a good lawyer. Take the 5th until you know exactly what you want to say. One thing you don't want to do is to inadvertantly take responsibility for things that weren't your fault.

 

[JOM]

Mike and Stephen,

Thanks for the replies. Your comments are good, Mike, but I should have made myself clearer. I'm referring to a situation where the individual was a key player in the incident and their involvement is quite apparent to all. I'm not talking about a case where you can hide your involvement or deny any involvement. So the investigators know of your involvement and you're number one on their list of interviewees.

I'm also not talking about a deliberate or malicious act or gross negligence, but the type of unsafe act that falls into the "human error" basket.

I think you're right, though - not owning up would work against you, if you did have the chance of hiding.

Interesting that you expect the investigators to form opinions - biased ones at that. Can investigators be biased or non-independent? I think yes. That's one of the reasons I would be wary of being interviewed.

"Get a good lawyer" is good advice. Without a lawyer, I think I would keep silent. It wouldn't be easy, though. The pressure could be immense. Cheers,
John.

 

[Ron]

A statement such as "I have not had adequate time to review the facts and evaluate the issue. Until such time, I have no comment." will usually buy some time. If a statement such as this cannot be made with finality and confidence, then it is better to not say anything until consultation with legal counsel.

Things are not always as they seem at first, so it is better to keep as much emotional detachment as practicable. Often, in the event of a failure, emotions are high. It is important to keep out of that fray. As engineers, we spend our entire careers practicing a pragmatic, objective stance...this would be no time to change that.

 

[JOM]

Thanks Ron.

You said:
"I have not had adequate time to review the facts and evaluate the issue. Until such time, I have no comment." will usually buy some time.


I can see the investigators' response to that line - "Your job, Sunshine, is not to review and evaluate. Your job is to tell us just what happenned..."

My thoughts are, if you decided against comment, then offer no explanation as to why. Say nothing at all. After all, if you are not forced by law to an interview, then it is your choice.

The emotions sure could be running high. I think many law abiding persons would think the right thing to do is co-operate. Little do they know how their statements could be used against them 18 months later in court.

"Better get a lawyer, son, better get a real good one..." is a lyric that comes to mind. Cheers,
John.

 

[DaveVikingPE]

"I'm referring to a situation where the individual was a key player in the incident and their involvement is quite apparent to all."

My opinion: All bets are off. Get a lawyer, but only to protect you from yourself. Admit the mistake and take your lumps; a lawyer will, perhaps prevent your license from being revoked, but you may still lose your job, etc. However...

"I'm also not talking about a deliberate or malicious act or gross negligence, but the type of unsafe act that falls into the "human error" basket."

Human error, do you mean someting like "pilot error" where perhaps a response to a situation wasn't "fast enough" and a couple of hundred people were killed? Or do you mean a calculation screw-up that the engineer simply didn't bother correcting? Or, one of those cases where the bid package went out incomplete and it never got completed and the project failed?

 

[JOM]

Dave,

"Get a lawyer, but only to protect you from yourself."

That's well said. A good motto to counter the line: "if you've done nothing wrong, you've nothing to fear". I think the pressure would be intense to "do the right thing". A hard nosed lawyer who understands how prosecutors work would be invaluable.

Investigation manuals stress the importance of collecting eye witness data as soon as possible, as memories quickly fade & people are influenced by others. I would make a written statement to my lawyer, which should make it inadmissable through legal privelege. In some jurisdictions, statements to investigators are not admissable.

>Human error, do you mean someting like "pilot error" where >perhaps a response to a situation wasn't "fast enough"


Sort of, but more the simple blunder that comes from forgetfulness, pressure to get the jop done, taking routine safety shortcuts that aren't approved but are customary.....

I think this occurs to people at the coalface, like welders, crane drivers, plant operators & supervisors, where the blunder in just the "right" circumstances
produces catastrophe. The pilot is in a sense a plant operator. Engineers perhaps benefit from layers of protection. But the welder who forgot to check for explosive gas before cutting steel - he's right in the investigator's spotlight. Cheers,
John.

 

[PM]

Man what an excellent thread. I can think of more than a few such real world examples during my career, some involving industrial fatality investigations. If you want to add even more confusion to this hypothetical, just consider the added complexities when your employer is a state government.

I'll resist the urge to drone on about the nuances of this highly complex problem, but will suggest if you reasonably suspect you are, or may become the target of a criminal or quasi-criminal investigation, then you:[ul][li]say nothing to anyone until you have a lawyer (expert in criminal administrative / investigatory proceedure) retained and then follow his/her advice,[/li][li]as soon as possible, make personal and confidential notes of the relevant facts/incidents (advise no one, but your lawyer of these notes),[/li][li]do not participate in any corporate or state investigation until you have sufficient time to recover from the initial shock of the incident and begin to think rationally again[/li][/ul]If you're guilty of an offense as described by your lawyer(s) (ie. not the prosecutor) then fess up and accept the consequences. If you are not guilty of an offense and you remain the target of an investigation, then advise your lisencing body and your employer that you regrettably cannot participate in their separate investigations until the criminal quasi-criminal actions are completed.

I assisted one Provincial government department study this very subject for almost a year before rendering practical advice for all those concerned. Even now, years later, the matters involved are still anything but clear-cut and I only hope you all work for supervisors who know the right thing to do, because the consequences of their ignorance can be devastating to individuals, the corporation and possibly criminal investigations.

Regards,

 

[JOM]

Dear PM,

>Man what an excellent thread.

It's opened up many more issues than I expected. The nature of the investigation has turned out to be significant - is it police, the OHS Authority, the company or an independent body? (The first three are not necessarily independent.)




>If you want to add even more confusion to this >hypothetical, just consider the added complexities when >your employer is a state government.

Not such a likely eventuality where I live - our governments have sold our utilities.


>or may become the target of a criminal or quasi-criminal >investigation, then you:

What is quasi-criminal? Are their quasi-police? quasi-gaols?
It's either criminal or not. We don't need unecessary complications.

Thanks for your three bullet points, I like em - now how does an ordinary worker caught up in a horrible situation follow them? How do "get a lawyer"? All I could think of would be to look up the Yellow Pages. I think I would know more than the average suburban lawyer about OHS Law and would use him/her as a shield rather than for advice.

With your work with the provincial governmemt, PM, did it include guidelines to employees subject to interview? I've being reading the US Dept of Energy's investigation manual. They have lots of advice about conductiong interviews but nothing about individuals' rights. Cheers,
John.

 

[JOM]

PM,

You said:-

I'll resist the urge to drone on about the nuances of this highly complex problem,


That's very important. It certainly is highly complex. But the trouble is, the person in the hot seat cannot see all the complexities, and doesn't have the time or mental state to even begin to envision them. I'm beginning to think they need immediate support. Before a lawyer is called. Where does that come from? Cheers,
John.

 

[PM]

JOM

I can't offer all the relevant means to acquire a competent lawyer, but if an individual hasn't researched a good lawyer before the fact, then in an emergency one can call the local state bar asociation for the names of several lawyers expert in proceedural law. In time, it is possible to change lawyers with specific expertise to take over the case.

Your question about quasi-criminal investigations refers to laws such as environmental, safety / health and similar statutes that carry serious penalties. The point I was making is that if you are an employee of a state department (say a public works department) then you owe a duty of care to the state by assisting in their investigation into what went wrong for the purpose of preventing its reoccurance. If you don't collaborate, you may be dismissed. As soon as you tell your department what you know you also are telling the criminal investigator (ie. there is no privilege between departments of a single organization) who can use the information for a criminal prosecution. If you are not a state employee your employer also has the right to remain silent, but if they speak to a state investigator, it may be against the individual employee's interest.

The bottom line is that criminal and quasi-criminal investigations have differnt motives than corporate or profesional investigations. So stay quiet until you understand what the motives of the investigatin are. All this is predicated on your lack of guilt of course. If you are guilty, then fess up and save the state a lot of time and money.

What sticks in my mind from my study of this issue is that it is no longer possible to easily identify who the good guys or bad guys are anymore. However ugly the truth may be in this day and age, it is probably true that there are as many unethical people trying to dodge a rightfull finding of guilt as there are people who are trying to persue a finding of guilt against those who are not. (Engineers might simply recognise this as "normal".) If the purpose of an investigation is to find fault with someone, then be cautious.

Regards,

 

[JOM]

Thanks PM and others for the discussion on this interesting and important topic.

I don't know if we've "solved" anything, but a few things have been straighted out for me.

First, it's clear that the immediate period after the event is the crucial period where caution must be exercised. This is when what you say in innocence could come back at you in court 18 months later and used in a way you never anticipated.

Second, you do not know what use will be made of your statements.

Third, you have to have a lawyer, who can deal with protecting you, while you deal with your emotions.

Fourth, don't trust company investigators, even to the point of not answering their questions.

Fifth, the lawyer must discover the ground rules for any official interview - is it admissable? can it be used against the client? What is the purpose of the investigation?

Sixth, get your version of the event written down by your lawyer and keep it confidential. This may show that you take the event seriously and want to help prevent reccurrences. Judges understand the right to not self-incriminate.

PM, you said:
>If you are guilty, then fess up and save the state a lot >of time and money

I can't go along with that at all. Your lawyer will deal with the matter of pleading later on when things have calmed down. The State can take care of itself. Industrial accidents are usually complex and involve more than one cause and contributory factors. But The Law may not take that broad view. Are prosecuting attorneys knowledgable in the modern science of accident prevention? I don't think so. I just don't see industrial accidents as the same as other offences such as armed robbery or assault, and there ought to be another judicial approach to them. Cheers,
John.

 

[PM]

John:

"I just don't see industrial accidents as the same as other offences such as armed robbery or assault, and there ought to be another judicial approach to them."

You may well be right. Punishment is usually considered a deterrent to socially unwanted behaviour. I think that psychologists would argue that good behaviour (ie. improved safety practices) can only be promoted through incentives. Never-the-less the approach of some jurisdictions "The beatings will continue until moral improves." just doesn't work.
Regards,

 

[nauticalmike]

Back to the statements that I made regarding biasing, I am a firm believer that everyone is biased. Furthermore I believe that since most if not all of the information we use to form our thoughts has been received through our senses, that everything we see, hear, smell, taste or feel has been biased by our own perception before we are consciously even aware of it.

"You do not see things as they are, you see things as you are" ~Socrates~

 

[JOM]

Mike,

I'm in agreement with you and Socrates - my way of expressing it is that our perception of the world is more important to us than reality itself. We like to fit new knowledge into our pre-existing perceptions. We reject things that don't sit well with our established views. We haven't changed all that much in 2000 years, eh?

Some investigations - by say the US CSB, or the Aust. Transport Safety Bureau - explicitly declare their purpose of discovering facts and not seeking to blame. Now, if a company investigator said to a witness that the purpose of their investigation is to divert blame from the company or the safety department, then noone would talk to them. And that might be for the best.

Of course, trial attorneys perform with an absolute dedicated commitment to bias.
Cheers,
John.

 

[curvbridger]

All,

I agree that it may be wise to delay an initial response until you have time to think clearly.

However, it should be remembered that if you successfully dodge the consequences of your misdeed, those consequences will usually be transferred, unjustly, to another.

Something to think about.

Curvbridger

 

[JOM]

Curvbridger,

You said:

"those consequences will usually be transferred, unjustly, to another"

Does that mean that you think injustice will probably occur rather than justice? What forces make that happen? What is wrong when you expect injustice, rather than injustice?
Cheers,
John.

 

[nauticalmike]

Responsibility transfer unjustly to another? In the situation that you described I was given the impression that you played a central role and your involvement in the situation would inevitably be known by the investigators.

On the other hand if someone else was found to be responsible for the misdeed, then I would expect that justice will still have been served. It may have taken a bit longer than it should have, but in the end it is still the end. To put it another way, what comes around goes around. They got theirs today, and you can rest assured that you'll get yours another day. Personally I would opt for the taking the responsibilty for something that I both know and was actually responsible for rather than having to wait and worry about what I have coming.

 

[curvbridger]

Justice is not just and end to the situation, it is the outcome which matches punishment to wrongdoing and rewards to doing the right thing. Anything else is injustice.

If no-one is held responsible for doing wrong, then the consequences remain solely on the victim, which is injustice.

Justice is an ideal that we try to approximate, but which we cannot fully realize, because we are imperfect.

Read Isaiah 9:6,7

Curvbridger