Neville Blyth & Patrick Hornby - ATSB

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: [email protected]

• Web: www.atsb.gov.au

• Twitter: @ATSBinfo

• Facebook: atsbgovau

• YouTube: ATSBinfo