"Nightmare on Safety Street"

The phone slid from Jack’s hand and hit the desk with a hollow thud. When Brian walked over from his office across the hallway, he could still hear the sounds of a woman screaming from the handset.

“Jack, are you alright?” Brian rushed up to Jack, who was pale and sweating heavily. “What happened?”

“He’s dead, Jack. The guy’s dead.”

It turned out that the worker who had worn the faulty safety harness had made good progress and ten months after the accident, he was on a back-to-work plan. Rather than working out on site, he was allocated light duties helping in the warehouse. His employer had given him time to attend the check-ups that were needed. During one of these check-ups, the worker had complained of a bad headache. Before anyone knew what had happened, a blood vessel in his brain had ruptured and the worker died within minutes of a massive stroke.

What would happen to Jack and his company now?

For those of you who haven’t been avidly following each edition of Safety Snippets, Jack is the CEO of a medium-sized Australian manufacturer of safety harnesses and Brian is his head of operations. The worker in question was wearing one of their safety harnesses on a Newcastle site when it snapped, causing broken bones, some head injury and a lot of open wounds. Jack had followed an emergency plan in dealing with the situation to make sure that the company’s financial and reputational interests were looked after. He spent a lot of time in Newcastle meeting with the family of the worker, and managing the situation. He thought that things were getting back to normal - and then this occurs.

What can Jack expect when the worker dies?

While the worker wasn’t a direct customer of Jack’s company, he certainly was an anticipated end-user. Jack’s company hadn’t yet been sued by the worker or WorkCover, but now that the worker was dead, he can expect the family to bring an action at the very least- the worker had been the breadwinner of the family after all. But before they do that, he and his company will probably have to face a coronial inquiry.

Every state and territory in Australia has a coroner’s court, and each is slightly different. In this case, the worker was originally from Sydney but the site where he had the original accident was in Newcastle. So even though Jack’s company is Melbourne-based, he will have to travel up to New South Wales to attend the hearings. That will take a lot of time out of running the business and cause distraction that he probably doesn’t need.

The coroner’s court isn’t like other courts that you might have experienced, where one party brings an action against another party and they argue it out. The coroner’s court is a court of inquiry, and it’s the coroner’s job to investigate certain kinds of deaths to find out the identity of the deceased, and the date, place, circumstances and medical cause of the death. So unlike judges in other courts, the coroner’s role is to find out what happened rather than say who was right or wrong.

In this case, the New South Wales coroner’s court will be the one investigating the worker’s death. Certain deaths have to be reported to the coroner’s court, and these include deaths that resulted, directly or indirectly, from an accident or injury, even if there is a prolonged interval between the incident and death. So in Jack’s case, even though the worker was injured over ten months ago and everyone thought he was doing well, because the death follows the accident on the Newcastle site, the coroner needs to get involved.

What are the challenges to a business in this kind of situation?

Like a judge, the coroner has powers to a judge to summon witnesses, issue subpoenas, order arrest and take other actions to get the evidence of what really happened. So if you’re in Jack’s situation, not complying with the coroner isn’t an option.

Coroner’s inquiries often take up to twelve months and in some cases, even longer. During that time, Jack and other members of his company will have to be available to give evidence as the coroner requires.

The biggest initial challenge to Jack’s company will be the amount of time and resource that the coronial inquiry will take. The coroner is likely to ask not only for evidence on the manufacturing process, but also details of the testing and quality assurance system throughout the history of the company. That means digging through old files and piles of documents, as well as drawing on the memories of some of the long-serving employees.

But a bigger challenge looms ahead; how to deal with the reputational consequences if the coroner finds against Jack’s company. After all, what customer would want to buy from a safety wear company that caused a worker’s death?

And there was still the legal action from the worker’s family that he would have to deal with…

How can you manage a tough situation like this?

Understanding the process is the first thing to do: there is no use sticking your head in the sand and hoping that it will pass quickly. It won’t. So make sure your business has the financial and other resources to keep it going for at least twelve months if not more.

Engage the support you need early as well. You can be sure that your insurers and probably lawyers will be involved, but don’t forget that a good public relations firm can also be a great help in these situation. In next month's edition of Safety Snippets, you'll find out why!

Melissa Kirby is Legal Director and Strategist at Sharpe & Abel, a law and strategy firm that serves the manufacturing, engineering, infrastructure and technical professions. You can reach her at melissa.kirby@sharpeandabel.com. This article was first published in Safety Snippets.