Fatality on the farm….what happens next

Every year almost 40 farm businesses in the UK will face the difficult process of an investigation after a fatality on their farm. Isabel Davies asks the experts what those affected can expect.

A death in any workplace is a tragedy, but a fatality on a farm can have a particularly devastating impact.

The nature of agriculture usually means that the person killed will be well known to everyone in the business, quite likely regarded as a friend as well as a colleague, and could even be a family member.

See also: Tougher penalities for farm health and safety breaches

The emotional toll can be immense, with people who survive often feeling guilt or struggling to cope with the aftermath.

With farms often being small businesses, any death can also leave very practical problems about how to carry on.

Adding to the emotional and practical challenges, a lengthy investigation and legal process is also likely.

After any fatal accident, there must be an investigation to establish the cause and to hold people to account if they bear any responsibility.

But what does this process entail and how should those who find themselves in the middle of the situation deal with it?

Rick Brunt, head of agriculture at the Health and Safety Executive and Matthew Coles, solicitor in the business crime and regulatory department of legal firm rradar offer their expert insight.

Who needs to be notified?

The priority in the event of any fatal accident will be to contact the emergency services.

Depending on the circumstances, it may also be necessary to involve a utility company, or the Environment Agency if pollution is evident or suspected.

The emergency services may report the accident to the HSE directly. However, under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR 2013) any workplace death, whether it involves workers or non-workers, must be reported to the HSE, says Mr Coles.

For fatality cases the HSE has a Monday to Friday service between 8.30am and 5.30pm (0345 3009923). If that is not available the report can be made online at www.hse.gov.uk (look for the RIDDOR links).

Attending police officers will make contact with the family of the deceased.

Who needs contacting next?

Mr Coles advises if possible your insurance broker or agent and a lawyer experienced in dealing with regulatory issues should be contacted on the same day of the accident or as soon as you can.  

The advantage of engaging with a lawyer early is there may be circumstances where it is helpful to ensure that certain documents are protected by legal privilege, he says.

“After dealing with the initial incident, the most important thing to do is get legal privilege into place,” he says. This can protect your position.

“For example, if a farmer uses an independent health and safety consultant to investigate an accident and produce a report, then if the HSE asks for a copy then the farmer has to hand it over.

“If solicitors are involved at a very early stage then we can ask for the report to be undertaken and then it becomes protected by a degree of legal confidentiality [so doesn’t have to be handed over to the HSE].”

It is also advisable not to speak to press or unidentified third parties until after advice from either broker or solicitor.

What are the processes to expect?

When the emergency services arrive they will need a brief account of what has happened to allow them to assess the scene and deal with any hazards that may remain such as downed power lines, dangerous machinery or leaking fuel.

Police are likely to take initial accounts, but may also ask for formal witness statements at the scene. 

It is important to remember that immediately after an incident any witnesses are likely to be in shock and traumatised, says Mr Coles.

So while giving an initial account is important, in his view it is best practice to ask for formal statements to be delayed until the witnesses have had a period to recover from what they have seen and experienced.

“From a legal point of view once a statement has been made it stays on the record. It can be clarified, but it can never be undone.

“You have to be capable of making a formal witness statement to the police and if you don’t think you are in that right frame of mind you must tell whoever you are talking to. You are perfectly within your rights to say I am not up to this at this moment – give me some time.”

The HSE will try to attend any fatality as soon as it happens but this will depend on the timing of an accident and whether an inspector is available, says Mr Brunt.

Any HSE investigation will be carried out jointly with the police at first, he says. If it turns out that someone looks to be to blame and could be charged with gross negligence by manslaughter then the police will take the lead. If not, the HSE will take over.

Any initial conversations with the HSE are likely to be quite short. “In the first instance what we’d try to establish on the first visit is what happened, so we’d want to talk to any witnesses,” says Mr Brunt.

“We have to make a bit of a judgement call. If we’re talking to someone who may have a legal responsibility, we may have to be cautious about how much we talk to them because if somewhere through the investigation we believe they may be guilty of an offence we would normally interview them under caution. So we might have an initial conversation and then say we will stop it now.”

Evidence supplied during an interview under caution is recorded and may be used against the company or individual in any criminal proceedings.

What powers does the HSE have?

The HSE’s powers stem from the 1974 Health and Safety at Work Act and are wide-ranging. They include powers to:

• Enter premises at any time
• Examine and investigate ie take samples, photographs, take measurements
• Require the production of documents
• Inspect or copy documents

Importantly, the HSE also has the power to ask questions of an individual and require answers from them. Even the police do not have the power to compel people to provide answers to their questions, says Mr Coles.

“If you refuse to answer questions from the HSE when they are exercising the power to ask questions and receive answers then potentially you make yourself liable to prosecution for an offence of obstructing an HSE inspector.”

The penalties for this offence are up to a year in prison and/or an unlimited fine if the offence was committed after 13 March 2015.

While the HSE does have that option, it is not one that it uses very often, says Mr Brunt. “We tend to look for co-operation.”

What sort of things will the authorities be seeking to find out?

The investigation will involve:

• Analysis of how the incident occurred
• What procedures were in place for the task being undertaken
• Whether systems were followed
• Consideration of the training and competence of the individual concerned
• The individual’s duties and responsibilities as part of his or her employment. 
• Examination/investigation of any machinery or equipment involved
• Training records and service and maintenance logs for equipment

Ultimately, employers will have to demonstrate that care has been taken to make sure their workers are operating safely.

If you still have not contacted a solicitor so far, it is vital you do at this stage, says Mr Coles.

If an HSE investigator wishes to formally interview an individual, whether a manager or the operator of the farm as the investigation develops, it is an indication that the investigator believes either the individual invited for interview or the organisation as an employer may have committed a criminal offence.

What paperwork will the HSE want?

The HSE will want to see any paperwork relating to risk assessments, training and machinery maintenance, says Mr Brunt.

The legal requirement on risk assessments is that they have to be written down when you have five or more employees, but the majority of farms aren’t at that size. Although, part-time and family employees are all part of the overall count.

“But even if the risk assessment doesn’t have to written down, the process should still be happening. We will be talking to witnesses to ask: you did this job in a certain way but what was the instruction or training you were given to do it? What was the information you were provided with? Did you understand why you were asked to do something in certain way? Were you told to do it in a certain way or were you left to get on with it?”

According to Mr Coles, it is possible the HSE will seize any paperwork it requires as part of its investigation and it can be hard to get copies later on. So it is good practice to always have extra copies of documents, such as risk assessments, training records and maintenance logs, in the office as this means you have spares that you can show to your solicitor.

Similarly, it is also helpful if you have your own record of the incident – photographs if possible before any machinery or equipment is moved (being careful not to interfere with the scene).

“We also always advise that even if it is not a legal requirement to record risk assessments, you should still record them in writing.  It is then your proof that you have carried out the assessments which should help in your defence in the event of prosecution,” says Mr Coles.

How are decisions on prosecutions made?

If the circumstances surrounding a death are so serious it looks as if they could be considered gross negligence then the police will seek to prosecute for manslaughter.

If the evidence doesn’t point to gross negligence manslaughter or corporate manslaughter the investigation will move over to the HSE, who will look at a prosecution under the Health and Safety at Work Act.

In some instances it is not possible to take forward a prosecution because the business owner is the person who has died.

Where the circumstances don’t warrant a prosecution, or there is insufficient evidence to bring one forward, the HSE may still take enforcement action and serve an improvement or prohibition notice to make people change what they are doing.

It is also possible for the family or insurance company of the deceased to bring a civil prosecution.

What are the penalties associated with health and safety breaches?

Tougher sentencing guidelines were put into place on 1 February 2016. A prosecution for corporate or gross negligence manslaughter carries with it the risk of a significant custodial penalty or unlimited fines. 

The new guidelines consider the extent of the breach, the seriousness of harm risked, the likelihood of harm and the turnover or equivalent of the organisation.

If it is not at the level of manslaughter, but it is still a Health and Safety at Work offence then prosecution can still lead to unlimited financial penalties.

How long will the whole process take?

Many who have had to go through the investigation process find one of the most difficult aspects is the length of time it can take.

“From the time of the incident, through to the conclusion of an inquest and any legal action that arises could take two years or more, says Mr Brunt. “But it could also be much quicker if the matter is straightforward.”

The HSE’s aim is to complete an investigation within 12 months, however, it often has to wait until the verdict of an inquest before it can inform the business owner about whether action is likely to be taken, and that can take several months.

What other implications are there?

The financial implications of having an accident on your farm can be significant even if it doesn’t end up in court.

Since October 2012 the HSE has operated a cost recovery regime, which means that businesses are charged for the costs of an investigation from the point a breach has been identified though to the point when a decision is made on enforcement action. The charge is £124/hour and includes time spent by the HSE inspector both on and off site. The charge applies even if the decision is not to prosecute.

All cases that end up in a prosecution are also reported on the HSE website which is widely reported by the press, so negative publicity is inevitable.

Is insurance available?

There are policies available such as AXA’s Rural Protect Policy which are specifically designed for the agricultural sector and will cover legal costs for HSE investigations and defence costs should a prosecution be brought. 

See also: Health and Safety Executive and rradar