How to Choose an Accident Investigator
When fleet operators experience the horror of one of their assets being involved in a serious accident, involving a loss of life and/or serious spills or stock losses, they are often forced to procure the services of a contractual accident investigator under less than ideal circumstances.
In the midst of a media frenzy, pressure from financial, logistical and management departments for “answers,” requests for information by police investigators, social responsibility considerations, tow-in and vehicle repair decisions, loss-of-income concerns and service replacement challenges you can hardly blame them for making less than informed decisions.
Just as the field of specialised accident scene investigation and reconstruction is a highly specialised field, selecting the right specialist for the job requires an understanding of your needs, challenges and requirements. Choosing the right contractual accident investigation and Reconstruction agency to represent you requires a degree of specialised awareness.
Waiting until you have a serious accident and then scurrying to get hold of the first available accident investigator when the pressure is at the maximum time at a minimum and assets and liabilities affected is not only another accident looking for a place to happen, but could also expose you to additional liabilities and expenses you were not aware of.
This article is designed to assist the fleet manager or asset controller in identifying, selecting, interviewing, screening, vetting and selecting the right agency to represent them in the event of a serious accident.
Before even considering the possibility of interviewing or considering the appointment of an accident investigation specialist, fleet managers, operators and owners should engage top management in the decision processes.
By involving top management right from the start, important elements of accident management can be addressed and implemented immediately to ensure that the actual deployment process meets the required standards and involve the appropriate asset operators.
Since financial decisions need to be made ahead of time, obligations and standards agreed to and all negotiations completed before an accident happens, this is the time to thrash out all the potential liabilities.
Among the various specific considerations to be included in the appointment of an accident investigation entity, the following specific elements need to be addressed well before the advent of a serious accident:
Assessor, Investigator or Reconstructionist?
When it comes to qualification and skill, there are about as many variations in the accident attendance domain as there are in the medical field. Skills range from basic photography and narrative skills through advanced 3D computer visualisation, mechanical engineering and even psychology.
But - before we can address qualification, we need to establish the difference between the different kinds of operators in this (currently) unregulated industry.
Let’s be clear about this: Anyone can grab a camera, rush off to an accident, take some photographs, record basic details, make notes and compile it into a three-page “report.” Even your secretary…
When someone represents themselves as an “Accident Investigator” the first assumption that you would be allowed to make should be that the guy knows more than you do and that he has some kind of value to add to your situation. The Investigator should bring you something that goes beyond any of the skills you hold - and he should be able to stand behind it and represent his findings competently in a court of law.
Reports that start off with legal representation disclaimers, specifically stating that the reports could not be used in legal proceedings are nothing short of an insult to your intelligence, a waste of your money or possibly even a gross misrepresentation of the anticipated skills of the Investigator.
Accident Assessors are also hardly qualified to represent your interests in legal processes since their skills are often forged in the insurance industry where civil litigation is based almost exclusively on the contractual relationships already in place with customers. They are also often appointed in positions where the quantum of accident losses are considered primarily, while the merit elements are only included for settlement or civil litigation purposes. But - they do not testify in court as experts, and cannot prove their findings or opinions scientifically. Getting “everyone to say that the vehicle was going at a high speed” is hardly expert testimony. The burden of proof is often not carried by the assessor. That’s normally left up to the highly paid legal teams. And let’s face it - insurance companies largely specialise in the settlement, legal intimidation, strategic posturing and an out-of-court settlement. They prefer not to go to court. They’re in the business of getting things sorted out.
When you or an employee faces the criminal process associated with culpable homicide or reckless and negligent charges, the “let’s make it go away” approach is not applicable anymore. Criminal cases invariably end up in court. In recent developments charges are brought against vehicle owners more regularly, since vehicle maintenance issues are often seen as contributory. Since owners are responsible for the upkeep and maintenance of vehicles, any failure to perform in this regard could expose management to unnecessary criminal prosecution risk.
Now - there are some accident investigators out there who are able to take some pretty good photographs. They can even get statements (although statements not sworn often do not stand up in court), and may even produce very good accident scene drawings. They might express opinions and even recommend remedies to prevent repeat occurrences. But, there is another problem. Even if an accident investigator can produce pretty reports, make nice drawings and say things that sound pretty higher grade on a paper, serious accidents often involve numerous other elements that need special consideration. These might include vehicle mechanical systems-, brake system maintenance-, tyre analysis-, human factor analysis-, lighting conditions-, loading dynamics- and even seatbelt, airbag and occupant kinematic considerations.
Investigating an accident properly involves special consideration of all these factors and possibly much more. A proper at-scene accident investigation might include specific photography, measurement and analysis of many components and systems. The level of the investigation an “accident investigator” can go to is often limited to the accident scene and involved vehicles, and would make for a good reference - but often falls short for the purpose of expert analysis for legal purposes.
One of the greatest challenges with accidents is the fact that no-one can predict what elements of the accident, the involved vehicles, and the people involved in the accident or even the road design or weather condition could become relevant later.
If an accident investigator has limited skills or conducts a mediocre investigation, vital evidence might be overlooked, essential elements of proof lost or core elements of evidence simply lost forever.
Before appointing an Investigator, ask how many photographs should be taken at an accident scene. Since every photograph must be taken with an understanding of why it is taken, and that there might need to justify, explain and confirm it in court, simply answering “as many as possible” just won’t cut it.
Also - there is a phenomenal difference between taking photographs of the accident and securing photographic records of all elements of relevant evidence. Many untrained or inexperienced accident investigators tend to take photographs of the accident. They focus on the “seriousness of the accident” and their photography is a graphical depiction of this element. Yet, you will be fully aware of the “seriousness” of the accident by the financial implications, stock losses and/or fatalities without the need for any photographs. The photographic collection of evidence should be specifically designed to enable the viewer to feel like he or she is “looking” into the accident, the relevant contributory elements and the evidence of such involvement.
This is where there is a benefit to getting an (actual) Accident Reconstructionist to attend and investigate the accident, rather than trying to save on costs in the short-term and letting a designated staff member simply “go and take photographs…”
As the person most likely to have to reconstruct the cause of the accident, testify as to the many particular elements of evidence that contributed to the accident and/or the one most likely to identify these elements immediately at the scene of the accident, there is no better person to have at the scene than the Reconstructionist.
Finally, there is the (limited) possibility of hiring the services of a Forensic Accident Reconstructionist. What? You thought all assessors, investigators or Reconstructionists could add the word Forensic to the front-ends of their titles? This is not true.
See - the work Forensic, as explained by the Oxford English Dictionary loosely means “of or for use in law courts.” As simple (and obvious) as this reference may sound, there are many additional implications to this description.
Firstly, evidence cannot be used in court if it is not collected as per specific protocol, properly protected, accurately represented and if all documentary logs and supporting statements are not present.
Also - if the investigator or Reconstructionist is not aware of the potentially complex implications of presenting evidence in legal proceedings - a large percentage of the evidence might be excluded from court proceedings. The closer an investigator comes to achieving expert status, the more likely the opposing legal team will e to attack his credibility, his skills, his mandate, his experience, his evidence and his findings.
Without a full understanding of the implications of using the term “forensic” in his or her title, an investigator or Reconstructionist could be rapidly discredited as an expert in court. This will often result in all his or her opinions and evidence being excluded from court dockets completely. And he may never be accepted as an expert in court again.
The courtrooms are not the place for the mild-mannered, the insecure, the untrained, the unqualified or the overly confrontational. Only the most stable, qualified, experienced, skilled, even-tempered, intelligent, quick-witted and confident of people are able to stand up to the onslaught of a good advocate in a high-profile case.
Employing your own in-house investigator
The first and most obvious challenge with this decision is biased. How can an investigator appointed to investigate an accident truly testify that he is not biased in favour of his employer? This has historically been the most likely point on which the evidence led by a corporate accident investigator’s contribution to criminal proceedings could be excluded from evidence or, at the very least, tainted.
Unless the investigation is perfect, all the evidence collected and recorded with due consideration for all legal protocols, no evidence of bias visible at any stage of the investigation, or any utterances or mistakes made that could favour the employer, the internal investigator could expose the employer to unnecessary additional risk, rather than offer a benefit.
Opposite an experienced advocate, the in-house investigator is unlikely to be able to face and survive the legal onslaught he might be exposed to. Advocates love bias because they want to expose it and discredit the witness - this is normally easy. Courts hate bias because it “wastes the time of the courts” and it is very easy to make the quantum leap from questioning the bias and interest of an investigator to actually believing that he/she manipulated evidence or failed to record vital relevant evidence in a specific effort to benefit his employer.
It is also common knowledge that internal investigators are not specifically bound by a code of independence. They are often appointed specifically to look after the interests of the company. In less than ideal corporate environments, internal investigators might be tempted to even actively conceal evidence, destroy vital records, manufacture evidence and even to commit actual crimes including defeating the ends of justice, fraud and corruption. The introduction of “outcomes-based bonus” incentives, unfortunately, increases this risk ten-fold.
So - just how independent should an investigation be?
The question could be asked as to whether the contents of an accident investigation report could or would change if an investigator or even a Reconstructionist were working for the opposing team. If the answer is not that the report would remain exactly the same, there is already proof of bias.
So the question is not only whether an accident report is a truthful representation of all the prevailing facts relating to an accident event, but also whether the vehicle owner or operator is ready to accept the contents.
It should not be the job of the investigator or Reconstructionist to manufacture, manipulate, represent or interpret evidence in a way that would make the person or entity that appointed him as innocent as possible. The goal should be to represent all the facts accurately and in an undistorted manner.
It is the job of the legal representative to the involved party to recommend the best legal course of action. Perhaps settlement is decided as the least inconvenient and/or costly route. By knowing all the facts, legal teams can make more informed decisions, recommend more prudent actions and develop a more beneficial legal strategy.
Another issue involved prior experience, skills, qualification and your needs. It needs to be decided just what an in-house investigator is qualified and/or expected to do. Often fleet owners make the mistake of turning someone into the “accident guy” for the group simply because he showed an interest or were the most convenient person for the job. Fleet managers, transport managers, depot managers and operational managers and even maintenance managers and/or mechanics are only among some of the employees that often end up becoming the company “accident fundi.”
But, it needs to be remembered that interest and designation alone cannot necessarily prepare or qualify someone for the task.
Accident scenes are highly dangerous and dynamic environments and confrontations often result from the high tensions and emotional turmoil that are almost always present at these very unpredictable locations.
In-house investigators are often not trained in the at-scene protocols of emergency services and criminal investigators and could find themselves shunned, threatened or even arrested if they knowingly or unknowingly over-step the sometimes invisible boundaries.
By being present as an employee from the fleet owner, internal investigators could be exposed to unnecessary pressure from police investigators, the media, involved parties and even families of the deceased.
As is clearly outlined here, the decision to appoint an in-house accident investigator is one that should be taken with great care and after very serious consideration for all the possible factors.
Search the net
Before appointing an accident investigator or Reconstructionist, ask for a corporate profile. Actually, contact references and look for some that might not be specifically included in the profile. Visit the website of the entity and read everything. Websites are often a good indicator of the level of expertise, corporate image, and technological state of development and historical presence of a company.
Go to google.co.za and type in the name of the investigator or Reconstructionist as well as the name of the company they represent and see just how well established they are in the marketplace. You might learn a lot more about the entity you are considering that you may expect - to do the homework.
As much as accident investigators and Reconstructionists might not be willing or able to release copies of prior reports, ask for an example of their work even if you just look through it in their presence and release the sample back to them. It is important that you know what they do and hat they are claiming they can do.
List of skills
Ask the investigator or Reconstructionist to send you a confirmation of their particular skills and/or expertise. Also, ask them what exactly they are able to investigate accident scenes. If you operate commercial vehicles, let them explain some of their skills pertaining to your specific type of vehicles and their exposure to these.
There are many investigators that worked for insurance companies or traffic or police services in the past. Ensure that their exposure was not limited to light motor vehicles only, or that they received additional training beyond that offered only as part of their basic training.
Don’t fall for the “I have investigated thousands of accidents” claim without taking due recognisance of the fact that police and traffic officers also attend hundreds or thousands of accident scenes but that they are most likely never attending as accident investigators as such or that they may never actually have done any cause analysis.
Before you appoint an accident Investigator or Reconstructionist, ask if fixed-rate structures are available. Some offer these and they are sometimes based on the seriousness and/or distance to an accident scene. Whichever they use, try to secure a cost structure that will enable you to estimate the cost of deployment and appointment before the time. You do not want to enter into the negotiation at two in the morning, while you are in a position of vulnerability.
Too often fleet owners want to argue price and haggle minutes after they have heard that one of their vehicles have been involved in an accident. This is where the “cheaper is better” mistake is very easily made, and where no evaluation of the qualifications or skills of the contractor can be made.
Ideally, your contractor should be able to tell you what an accident investigation or Reconstruction will cost you to the cent, before leaving to go to the scene. If this is not the case, be careful.
As stated, some contractors quote hourly and/or per-Km rates, and might even include additional costs like phone calls, toll fees, etc. Be careful not to agree to open-ended contracts. This can cost you lots of money and add to your eventual accident liability budgets.
Stanley S Bezuidenhout
Forensic Road Transport and Risk Expert
Crash Guys International