Litigation Privilege can protect your Accident Investigation

The Irish High Court has recently held that an Accident Investigation Report Form completed by an employer following a workplace accident is protected by litigation privilege.

Mr Ladislav Kunzo suffered a workplace injury in Kepak Meat Processors on 14 September 2016.  Four weeks later, he consulted with his solicitor who then wrote an initial letter of claim to Kepak.  Mr Kunzo's solicitor then made an Application to the Personal Injuries Assessment Board and Court proceedings were subsequently issued on his behalf.  Kepak served a full Defence.
 
Mr Kunzo's solicitors sought discovery of various documents including the Accident Report From and witness statements.  Whilst Kepak agreed to the production of some documents, it asserted a claim of privilege over the Accident Investigation Report Form and certain related statements and documents.  Mr Kunzo's solicitors brought a formal application seeking discovery of those documents and that application came before Judge Anthony Barr on 12 March 2021.
 
Mr Kunzo's legal team advanced two main arguments. Firstly, they argued that because the Accident Investigation Report Form was completed prior to any letter of claim being issued on his behalf, Kepak could not argue that the documents had come into existence in relation to an existing or threatened legal action.
 
Mr Kunzo's solicitors also submitted that the Accident Investigation Report Form and the related statements and documents had been created to comply with Kepak's reporting obligations under the relevant Health & Safety Legislation.
 
Kepak argued that since an extremely high proportion of workplace accidents gave rise to litigation, it was necessary for it to treat all accidents as being likely to result in litigation and on that basis it was entirely reasonable for Kepak to prepare such a document in contemplation of the likelihood of litigation. 
 
Kepak also argued that its Health & Safety personnel rely on the contents of the Accident Investigation Report to assess its possible legal exposure to any litigation.  Finally, Kepak argued that it carried a high excess on its policy of insurance and the information in the Accident Investigation Form was used to evaluate the potential cost of the claim and decide on what amount of money should be put on a reserve to meet its exposure.
 
Kepak argued that the dominant purpose of the investigation was to enable legal advice to be taken in relation to any possible exposure that it may have arising out of a claim in respect of a workplace accident.  Kepak submitted that there was no specific legislative obligation requiring it to report all workplace accidents to the Health & Safety Authority or to create a specific form of a document following each and every workplace incident. 
 
The Court held that in order for litigation privilege to arise it was not necessary that legal proceedings be actually in being prior to the documents coming into existence or even for a legal claim to have been formally threatened.  It will suffice if the documents were produced because legal proceedings were reasonably anticipated by the Defendant.
 
Judge Barr held that the Accident Investigation Report Form was covered by litigation privilege as long as the person who created the documents can satisfy the Court that the dominant purpose in carrying out the investigation and in obtaining the various supporting documents (including witness statements) was a desire on their part to obtain legal advice in respect of any proceedings that may reasonably be anticipated in respect of an accident.
 
It is worth noting that the Accident Investigation Report in this instance was not simply a report of the accident drawn up on the day of the accident itself or shortly thereafter but was "the culmination of a fairly detailed investigation carried out by personnel on behalf of the Defendant".  On that basis, Judge Barr was satisfied that it was produced for the purpose of obtaining legal advice in relation to a claim which Kepak anticipated that it would receive in due course and which it did in fact receive.
 
On that basis, the court refused to order discovery of the Accident Investigation Form and related statements.
 
While each case is decided on its own facts, this decision is useful in assisting employers in understanding how they can satisfy the test of litigation privilege in the context of its accident investigation forms and related documents.
 
If you have a query in relation to how to avail of the protection of litigation privilege in respect of your investigation documents, please contact our litigation and dispute resolution team.