The not so secret weapon—common interest privilege in workplace health and safety investigations
WorkSafe New Zealand (‘WorkSafe’) is increasingly undertaking complex multi-party investigations into the activities of all parties involved in or connected with workplace health and safety incidents. This is likely to become even more common under the Health and Safety at Work Act 2015 (‘HSW Act’), as the new law takes an ‘everyone is responsible’ approach to health and safety in the workplace. Common interest privilege is a useful tool for sophisticated organisations dealing with potential liability in these multi-party situations, and can allow two or more parties to share information and documents in the aftermath of a workplace incident without fear of being required to provide this information to WorkSafe.
What is common interest privilege?
It’s a common law extension on the law of privilege, and arises where privileged material is disclosed from one party to another with a common interest in the subject matter at the time of the disclosure. It is a narrow doctrine, but means that information can be exchanged between parties while still being considered legally privileged.
Common interest privilege can be claimed when litigation is on-foot or anticipated, as often is the case after a workplace incident, but also when it is not. Four elements are required:
- there must be an existing legal privilege in place for the relevant information or documents (such as solicitor/client privilege and/or litigation privilege)
- the two or more parties wishing to claim common interest privilege must share a common interest in the subject-matter over which the claim is made
- the common interest must be either identical or so similar that it would be unsuitable to treat the parties claiming the privilege separately
- the common interest can be either legal or commercial in nature.
The onus of establishing the existence of the privilege is, unsurprisingly, on the party claiming it.
How can you maximise the benefits?
After an incident occurs, common interest privilege can be, and often is, used to facilitate frank disclosure between affected parties in relation to particular aspects of their respective investigations. This can be useful when, for example, a principal and a contractor each need to investigate an incident and understand what lessons can be learned about weaknesses in their own processes, without those learnings being disclosed to WorkSafe and becoming practical steps inadvertently admitted.
It is common to see parties agreeing the basis for this privilege and setting out the terms of information sharing between them, to ensure consistency of expectations. In-house lawyers need to liaise with their investigation teams as soon as incidents occur so that opportunities for this can be maximised.
Difficulties sometimes arise though, as parties can become defensive, either seeking to blame each other or being paranoid that commercial partners may criticize them. This can lead to refusal to enter into common interest based information sharing, to the detriment of all. Instead, investigations continue and conclusions and recommendations are made on the basis of incomplete information. In these circumstances, risk aversion and fear of potential consequences with WorkSafe results in a lose-lose outcome.
There is a simple solution to this. Common interest privilege is not simply a reactive tool. In-house lawyers can and should consider the benefit of establishing arrangements for common interest privilege at the contract negotiation and drafting stage when ongoing business arrangements may have health and safety consequences. Nowadays, this is almost every time! The HSW Act requires duty-holders to consult, co-operate, and co-ordinate activities. This gives a great opportunity to talk about working together right from the beginning, when parties are more amenable to cooperating with each other and allocating risks on a commercial basis.
If parties are to commit to sharing a common interest privilege in advance, they should clearly outline the basis on which common interest privilege will be claimed, as well as the scope and expected operation of the privilege in terms of sharing information and documentation. Things to consider include:
- What types of incident may trigger the need for common interest privilege?
- Will these incidents create a sufficient common interest between the parties?
- Who will have an existing legal privilege, and what will the basis for that privilege be?
- What information or documents will be covered (e.g. all those created in relation to the incident, or some more limited scope)?
- What controls will each party put in place once information is disclosed (e.g. will information be provided to a limited group of specified persons within each organisation?)?
- How will the parties deal with information requests from WorkSafe New Zealand or the Police (e.g. establishing processes around referring requests to legal counsel and informing the other party of the information request)?
- What will happen to the shared information and documentation when the incident investigation ends or when the contract itself comes to an end (e.g. establishing requirements that information and documentation be destroyed or returned to the party from which they originated)?
Talking about these issues at an early stage can provide a practical - as well as useful evidentiary - foundation for organisations to build common interest privilege at a future date.
Will WorkSafe contest claims of privilege?
As a matter of practice, WorkSafe does not commonly challenge organisations when they assert legal privilege. This is not surprising, as WorkSafe often lacks the information to do so. This is no cause for complacency though, as privilege is more likely to be scrutinised in the future now bodies corporate cannot assert a right against self-incrimination.
If you have any questions about common interest privilege and how you might use it in your organisation, please contact Grant Nicholson and our team of health and safety experts at [email protected] or phone +64 9 375 1198.