With sight of the report, the HSE often uses it as evidence volunteered by a company of the facts on which they decide to issue summonses and then also in court to prove that offences have been committed.
The HSE has some even wider powers of investigation than the police, such as demanding answers to questions and a declaration that those answers are true. Sometimes this can extend to a company having to reveal its own opinion that the steps it took may not have met the legal test of ‘reasonable practicability’.
The only exception to the general assumption that all documents are disclosable is where a document is covered by legal professional privilege. That can arise in one of two ways. If a document is created for the dominant purpose of litigation, or obtaining legal advice, or considering a defence, or understanding the liabilities, legal position and implications of an accident, then it might attract litigation privilege.
Further, it is more common for a lawyer instructed precisely to consider those matters and advise on the investigation and process to commission an investigation report on her or his behalf so that advice can be given about a company’s response.
If legal advice privilege applies, then communications relating to the event and discussions between a lawyer and their client are also of course confidential and need not be disclosed.
Food manufacturers should look at their existing arrangements and any accident investigation procedures or manuals.