Neville Blyth & Patrick Hornby - ATSB

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  • Safety Information and

    Legal Professional Privilege

    A dangerous combination?

    Neville Blyth

    Acting General Manager, Surface Safety Investigation

    +

    Patrick Hornby

    Manager ATSB Legal Services

  • The Australian Transport Safety Bureau (ATSB) is

    an independent Commonwealth Government

    statutory Agency.

    The ATSB is governed by a Commission and is

    entirely separate from transport regulators, policy

    makers and service providers.

  • The ATSB is established by the Transport Safety

    Investigation Act 2003 (TSI Act) and conducts its

    investigations in accordance with the provisions of

    the Act.

    Under the TSI Act, it is not a function of the ATSB to

    apportion blame or provide a means for

    determining liability. The ATSB does not investigate

    for the purpose of taking administrative, regulatory

    or criminal action.

  • Safety InvestigationEffective safety investigation needs:

    Open and honest reporting of safety events Access to operational safety information Protection of information received Respect for privacy principles Independent investigation Consideration of organisational and

    systemic factors (root-cause analysis)

    Public release of information No attribution of blame or liability

  • Where are the conflicts?

    Organisations need to defend against liability and loss

    Judicial investigations, prosecutions and civil actions require, and

    are empowered to obtain evidence

    Information from safety investigation is evidence..

    Factors contributing to conflict

    Media, societal and political pressures

    Desire for loss prevention or compensation

    Catch-22 i.e. penalties for both disclosing and not disclosing

    information!

    Safety Investigation vs Accountability

  • What is a Just Culture?

    An industrial or political culture where frontline

    staff are not punished for actions, omissions or

    decisions taken by them that are commensurate

    with their experience and training, but.

    where gross negligence, wilful violations and

    destructive acts are not tolerated.

    Safety Investigation vs Accountability

  • More

    incidents and

    accidents

    Increase in

    legal proceedings

    & punitive actions

    Less

    reporting of

    occurrences

    The Vicious Circle

    Less

    investigation of

    occurrences

    Safety Investigation vs Accountability

  • Its all about information

    Industry participants hold the vast majority of the

    important information needed for effective investigation

    Investigations depend implicitly on access to information

    from all relevant areas and sources

    Investigation effectiveness can be significantly hindered

    by restrictions placed on access to information

  • Barriers to information exchange

    Desire to avoid adverse outcomes

    Attribution of legal liability (incrimination)

    Exposure to damages claims and loss

    Regulatory penalties

    Breakdown of industrial / workplace relations

    Commercial impact, loss of customer confidence

    Desire to protect privacy

    Damage to, or loss of reputation & future opportunity

  • What is Legal Professional Privilege?

    Communications between a client and lawyer for the

    dominant purpose of obtaining legal advice or in

    preparation for litigation (or anticipated litigation)

    Subject to a few exceptions, privileged communications,

    including documents, are protected from production in

    court proceedings and in response to the exercise of

    coercive information gathering powers in legislation.

  • Dominant Purpose

    The claims of humanity must surely make the dominant

    purpose of any report upon an accident (particularly

    where personal injuries have been sustained) that of

    discovering what happened and why it happened, so that

    measures to prevent its reoccurrence can be discussed

    and, if possible, devised.

    Lord Edmund-Davies, Waugh v British Railways Board

    [1980] AC 521

  • Case References

    Esso Australia Resources Ltd v Federal Commissioner

    of Taxation (1999) 168 ALR 123

    Sydney Airports Corporation ltd v Singapore Airlines Ltd

    & QANTAS Airways Ltd [2005] NSW CA 47

    Perry v Powercor [2011] VSC 308

    Ausnet Electricity Services v Liesfield [2014] VSC 474

  • ATSB Position

    In most cases an operators investigation following an

    accident or incident will not be for the dominant purpose

    of seeking legal advice or in preparation for litigation (or

    anticipated litigation).

    Regardless of the involvement of lawyers, legal advice

    and litigation will not have clear paramountcy over the

    safety and other operational purposes of an operators

    investigation following an accident.

  • Challenging Claims of LPP

    The onus is on the person making the claim for Legal

    Professional Privilege to prove it.

    The ATSB will be prepared to challenge unsubstantiated

    claims.

  • Removing the barriers

    Independence of the investigating agency

    Information controls

    Use only for safety purposes

    Limits on distribution and release

    Transparency of the investigation process

    No attribution of blame or liability

    Respect for private & commercial confidences

    Natural justice provisions (Directly Involved Party process)

    Public reports

  • Questions?

    Phone: 1800 020 616 (General inquiries)

    1800 011 034 (Immediate Cat-A notifications)

    Email: atsbinfo@atsb.gov.au

    Web: www.atsb.gov.au

    Twitter: @ATSBinfo

    Facebook: atsbgovau

    YouTube: ATSBinfo