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FEATURE


arguments is mostly constrained to information that is consistent with existing beliefs, not with an intention to examine them.”


It is, therefore, instructive that the HSE ‘Investigating accidents and incidents’ guidance provides: “Investigations that conclude that operator error was the sole cause are rarely acceptable. Underpinning the ‘human error’ there will be a number of underlying causes that created the environment in which human errors were inevitable. For example, inadequate training and supervision, poor equipment design, lack of management commitment, poor attitude to health and safety…The root causes of adverse events are almost inevitably management, organisational or planning failures.”


If the guidance should be understood to mean ‘Do not assume that an individual is to blame, assume that an organisation is’, that at least would be consistent with how health and safety cases are usually investigated and prosecuted. In any event, it seems hardly the recipe for an open-minded and unbiased search for what went wrong.


Further, where investigators have formed a view about your organisation, it is very difficult to change that view. Evidence will be searched for and interpreted to confirm that view (‘confirmation bias’). Once a decision to prosecute is made, even if it can be proved that the investigating authority’s entire understanding of what happened was wrong, they may move from one theory to another without reversing that decision or even reducing the seriousness of the breaches alleged.


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If there is a decision to prosecute your organisation, ‘hindsight bias’ poses particular difficulties. This is where knowledge of the outcome causes people to overestimate the likelihood of past events. The sentencing guideline for health and safety offences requires an assessment of harm risked and the likelihood of harm, upon which all else follows. The first question a judge must determine when sentencing an organisation for corporate manslaughter is ‘How foreseeable was serious injury?’ Sentencing judges have been known for example to rationalise their way around decades of safe operation to find an ‘accident waiting to happen’.


Hindsight bias goes hand-in-hand with outcome bias, where an evaluation of pre-accident systems is coloured by the fact that they did not prevent the accident. Combine these factors with a predisposition to blame organisations and not individuals (on the assumption that it is almost inevitable that root causes are management, organisational or planning failures), and it can explain why organisations even with reasonable health and safety systems risk being aggressively prosecuted following a serious incident.


The challenge for those defending health and safety investigations is to persuade and counterbalance with evidence, with a view to investigations and prosecutions not being biased. As investigations are less likely to change direction the longer they go unchecked, organisations should defend their position robustly from the outset. But be warned: in serious cases, this is usually a process, not an event.


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