neville blyth & patrick hornby - atsb
Post on 15-Apr-2017
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Safety Information and
Legal Professional Privilege
A dangerous combination?
Neville Blyth
Acting General Manager, Surface Safety Investigation
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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
It’s 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 operator’s 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 operator’s
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
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