The very first thing that I must say is, I do not hold any legal qualifications, what is written here comes after investigating many aviation accidents for clients, and the lessons that I have learnt along the way.
This does not constitute legal advice.
Scenario: You or your organisation has just experienced a serious accident. Lets assume its an accident that involves some third party property damage, loss of life, or the airframe is seriously damaged, and you expect this could result in legal action against you.
In any case you decide to carry out an accident investigation to determine the cause. You may be required to do this if you have an SMS, and CASA may request it.
So whats the problem with just getting on with it? If you ask your Safety Manager, or other employee, to conduct an investigation, or you ask us to do it for you, then anything you write, take photos of, record etc, may then become discoverable in court. This then becomes a question of legal privilege.
I have been told by lawyers, that if you wish to retain legal privilege so that your investigation does not become disclosable or discoverable in court, you must first establish legal privilege. I have been told that to do this, you must first contact your legal representative and request them to carry out the investigation on your behalf. They will then send a letter or email to the investigator and request that an investigation is carried out and therefore establishing legal privilege. Now this may not be necessary on every accident, however, if your accident has caused third party property damage, or involves a serious injury or fatality, where you expect a claim may be made against you at a later date, then I would strongly consider establishing legal privilege. Its a small cost, for a lot of protection.
One other thing to consider. If you hand over your accident report to any third party, you will then waive your legal privilege. This is of concern when handing over accident reports to CASA. On one hand you want to have open communication with the regulator, but then you don’t want them handing you a fine based on the information contained within the accident report. Information that you have produced. This is an extremely fine line to tread with the regulator. In my experience, it is a good thing to build a strong relationship with your local CASA office. In the past I have helped clients produce a factual report that is presented to CASA that includes safety actions taken, or planned to be taken, but without the analysis section. These reports seem to satisfy CASA that you have investigated the accident and understand what needs to happen to take corrective action/s.
Legal privilege falls outside the normal protections of an SMS which offers no protection from legal proceedings.
This is a very brief bit of information on legal privilege, a topic that can be quite complicated. The reason I wanted to write this is due to the fact that it is not a well known issue. I urge you to obtain legal advice on this topic before you have a serious incident or accident so that you are prepared. Once your legal team provides you advice, consider placing the requirement in your emergency management plan or checklist so that its not forgotten or overlooked. Once you ask someone to conduct an investigation, your legal privilege may be lost.
Be prepared, when an accident happens, everything will appear to happen at the speed of light, and those that are not prepared will be overwhelmed by the investigation process whilst having to run the business as well.