As published in Railway Strategies, 2nd February 2013.
The first 24 hours after an accident are the most crucial and need to be handled correctly without compromising the business. What the managers or directors decide to do in these first few hours will lay the foundations for any investigations that follow, and while most businesses will have plans in place detailing what to do in the event of an accident, actually handling a major incident is a different issue. With this in mind, Rupert Nevin, senior partner in business law firm DWF’s regulatory team, offers advice on what rail businesses should consider when dealing with a crisis.
How to respond
In the immediate aftermath of a major incident, especially where there are casualties or even fatalities, it is easy for panic to set in. In these situations, it is not uncommon for representatives from the organisation to ‘over-co-operate’ and pass on as much information as they can to authorities in the hope of keeping them on side. Unfortunately, this is rarely the outcome, and businesses can find themselves handing self-critical and privileged documents to the wrong people.
Seeking professional advice from the outset can help businesses to navigate their way through high-pressured and fast-moving situations, as well as prevent any mistakes from being made. As soon as an accident has occurred, the company directors, insurers and lawyers should be contacted to help manage the crisis management process. Bringing together a range of disciplines can limit the effects of an event, even as it is still unfolding.
The first 24 hours
A serious accident can draw attention from the British Transport Police (BTP), Office of the Rail Regulator (ORR), Railway Accident Investigation Branch (RAIB) and the media and will raise questions that need to be answered, so the business should deploy the necessary resources as early as possibly to deal with the crisis investigation. It must also think beyond short-term issues and consider the long-term implications of the incident, focusing on prolonged strategic planning and the very real possibility of how things could be dealt with in the court room. The organisation should have a team in place that can shadow the authorities’ efforts, to ensure that it has access to similar expertise and a fair understanding of what will happen next.
The rights of a company or individual will vary, depending on the regulator that is involved in the investigations. A business should make sure that it fully understands its rights, or enlists the help of someone who does, to allow it to respond to any further procedures in the appropriate manner. Legal advisors can guide managers and directors through these procedures and help the business comply with legal obligations.
Launching an immediate internal investigation can prevent the business being taken by surprise by undisclosed information further down the line. Legal providers are able to take witness statements, which may give the business a chance to find out more about the accident as legal privilege will apply. This means that a professional legal advisor cannot share any information with a third party without their client’s permission, so employees should be encouraged to share more information than if they were speaking to the authorities.
It is important that an internal report doesn’t fall in to the wrong hands, however, as they can often be self-critical and set standards that are way above what actually needed to be achieved. To prevent these being seen by the authorities, it is advisable for a business to work with professional advisors to ensure the availability of legal professional privilege.
It is essential that the spread of information following an accident is contained, so a business should appoint one senior individual who is tasked with speaking to outsiders. The workforce should be properly briefed on this system to ensure that no inappropriate comments are made and that the information being released can be controlled. The disclosure of company documents should also be carried out in a controlled fashion and managers and directors should take advice on what the authorities are entitled to seize and maintain.
Any major accident is also likely to hit the headlines so effective media handling is essential to preserve the image and reputation of a business. However, the company needs to be mindful of what information is passed on to the media and ensure that no sensitive information is disclosed, especially if there is a chance the case could go to court.
As Richard Branson said after the 2007 Virgin train crash, which killed one person and injured many more, railways are still the safest mode of transport. This comment is one that has been backed up by statistics – figures from the Railway Safety and Standards Board show the total number of incidents were 551 in 2011/12, down from 1,598 in 2001/2. Despite this, accidents can still happen and there is still the potential for extreme liabilities and reputational damage. With this in mind, it is important that any business that finds itself in such a situation applies a full crisis management approach, instead of simply ‘responding’. Businesses must act quickly but without being impulsive and should engage the appropriate professionals to help navigate managers and directors through the difficult aftermath of a serious accident and regain some power during the investigations.