But in the event of a workplace accident, can companies prove their innocence?

Some time ago, it was rather common to hear that a company where an accident takes place is one that does not adequately protect its workers. This axiom sustained that the accident itself was proof enough that the company was not operating well. Therefore, independently of a more accurate investigation into the causes, the company was retained guilty.

Alessandro Mazzeranghi, MECQ S.r.l.

This idea has toured the world and has taken hold at least in the collective imagination of the public opinion who – where it becomes involved because the media confers great visibility to the accident – tends to feel that responsibility must be attributed to the company or to its representative(s). Based on this vision, it is impossible that an accident has no guilty party; public opinion can at most accept that the people responsible have not been identified or that they have not been sentenced due to lack of sufficient proof.


THE REALITY OF THINGS. Often finding myself in courts of law in quality of expert and carefully studying those accidents for which I manage to obtain sufficient information, I see a very different reality. We can divide accidents into three broad families based on their causes:
- The accident is caused by an important deficiency by the company; of course, such deficiency may also be caused by a choice made by the management or by designated persons. Basically, responsibility is attributable both to the company itself and to the physical persons working there.
- The accident is caused by negligence or by the extemporaneous – so to speak – incompetence of someone (or of more than one person) without attributing incorrect behavior to the company itself. Hence, responsibility is restricted to one or more physical persons (different from the injured party).
- The accident derives from an abnormal and totally unpredictable behavior by the injured party who is hence the person truly responsible for the damage experienced (sometimes in combination with others).There are of course “mixed” situations, but surely they are combinations of the different scenarios illustrated above. And I could cite countless examples that I have personally witnessed if it weren’t for the lack of space.


PRACTICAL REASONING (FOLLOWING AN ACCIDENT). How many of you reading these lines work in companies certified pursuant to OHSAS 18001:2007? Well, when an accident takes place, what happens later is very different from a certification audit. Let me explain myself better:
- The certification audit works by sampling the company’s entire operation to verify that, in general, the organization answers norm requirements and that the continuous improvement cycle is properly managed.
- The investigation of an accident, on the contrary, focuses on researching the causes of that specific event, delving in-depth as much as possible, but limiting the survey only to that which may have a relation (cause-effect) with the accident. And of course the entire investigation aims to ascertain any corporate and/or personal responsibilities.
The object of this article is hence how to rebut and defend the company (and the people working there) in this latter case.


DEFENSE IS POSSIBLE (WHEN POSSIBLE). Let me say first of all that I will speak of those cases where the responsibilities of the company and/or of the persons of that company are absent or clearly debatable, at least under the factual aspect. In other words, when (based on an inevitably subjective opinion) no one has voluntarily staged negligent or incompetent behaviors that have ultimately led to the accident.
You may think that in such circumstances, it is easy to defend the company (hence implying that when the company and/or the physical persons working there concretely experience problems with the law, it means that they were really “indefensible”, i.e., guilty). But this is wrong – not always but in many cases – for a perhaps silly but very clear reason: a company that operates correctly, really correctly when it comes to safety, retains itself to be morally irreproachable (and rightly so) and hence does not even ask how it will defend itself in the event of an accident. Ok, if the company involved is totally free of residual risks (but who is??) then the reasoning holds true. Otherwise, we should consider that: it is true that everything possible and right has been done to prevent accidents, but I must also be able to defend myself easily should an accident take place in relation to one of those residual risks that I have not been able to eliminate (because it was not materially possible to do so).
And if we start off with this point, i.e., with an ethically irreproachable company, attentive and correct people, but no preliminary predisposition to strengthen an eventual defense, the defender, too, will have to investigate the concrete substance of the accident in depth in order to accurately reconstruct the event and demonstrate its true causes. And this in order to unquestionably demonstrate that these causes are not the responsibility of the company or of the people who work correctly for it (of course, it may unexpectedly emerge that there is a person responsible for the event different from the injured party who acted in his or her own interests, for example out of indolence or to make himself or herself look good…). So defense is possible but it is extremely laborious and complex and its outcome unpredictable by virtue of the fact that we cannot know which objective evidence can be collected to support the theory of innocence. Let us remember that in order to win, the defense must always be much stronger in its arguments than the “prosecution” (that in a certain sense enjoys the status of being super partes and in some ways implicitly exploits the axiom I mentioned at the beginning of this article).


AND WHAT ABOUT OCCUPATIONAL DISEASES? Just one observation: I have chosen not to speak of this because the reasoning is similar, but the defense process is rendered much more difficult because we are speaking about damages rooted in the past.


A QUESTION OF JUSTICE OR OF PREVENTION. We continue to see discomforting figures every time reports on accidents and occupational diseases are published. And the conclusion that some politicians and communication media come to is: companies – even with the aid of state financing – must invest more in occupational safety.No one wants to concretely accept the fact that many accidents happen also due the injured party’s fault, or even to his or her exclusive fault. This leaves a deformed impression of the phenomenon and spurs to undertake inappropriate actions in relation to the declared aims focused on prevention.
Because a great theme that interests every country in the world (and that should be faced with extreme determination) is the one embodied in the question below:“How can we force people to work in safety, respecting established rules and becoming conscious, through autonomous thinking, of the hazards potentially inherent in a given work activity?”



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