Aspects of evidence in incident investigation

Why do we investigate a road incident?

The answer will almost certainly differ depending on your background and the agency you work for – each of which having their own end goal.

Yes, through investigation, we can determine liability and seek punishment for those at fault, but the most important thing that comes from a proper investigation, is the opportunity to learn. In learning, we can develop strategies and practices that can prevent similar crashes from occurring.

In that, we have found the primary purpose for all road incident investigations – to prevent similar crashes from re-occurring.

In this article, some key aspects of evidence and incident investigation are set out as a source of information for those who have not had exposure to the field, but nonetheless, are interested in reducing the toll on our roads.

Why information gathered at the scene of a road incident can be so valuable

While there is no mandate in Australia to investigate road incidents, all severities of road incident deserve to be investigated. This is because the information secured provides enormous potential for learning and continual improvement in strategy, policy, designs, standards, guidelines and practices, across all elements of the Safe System. Similarly, road-related incidents can lead to criminal and/or civil proceedings (litigation) where the facts of the incident – in simple terms, what happened, the infrastructure provision and its condition, and decisions reached in managing and maintaining a road – are typically examined in detail.

This article explores the above position and highlights the need for pertinent information to be collected, secured and analysed as soon as practicable following an incident. In other words, there are two highly significant dimensions here: time and scope.

In simple terms, the more detailed and thorough the collection of information after an incident, the more thorough the subsequent investigation and reconstruction of that incident can be. However, it is not about ‘collecting everything’ – the skill is in recognising and capturing the pertinent information. Similarly, time is of the essence – some information is transient (it only exists for a short time) or ceases to be available over time.

This has led many practitioners in the field to declare that information secured at the scene of the incident – often referred to as contemporaneous – is absolute gold in preventing similar incidents reoccurring across the network. This should be the primary aim: to investigate and mitigate risk, not determine fault, appropriate blame or incriminate. This has led to the emergence of the term blameless (or root cause) investigations: to unravel the facts and solely the facts.

Notwithstanding, it is recognised that a thorough investigation can also help a road agency and their legal representative in determining their conduct of a legal proceeding where an allegation of defective infrastructure has been made by one of the parties involved in the incident. In such an instance, gaps in information can give rise to assumptions and uncertainty, which is far from desirable. Gathering information at the time of an incident and securing it can also safeguard against situations where the legal proceedings may be brought several years later.

But don’t the police investigate incidents?

There is a popular misperception that the police and/or insurance companies investigate all road-related incidents. The reality is that only fatal and some serious and publicly sensitive incidents are investigated in sufficient detail to enable a formal forensic reconstruction. Police investigations have the primary objective of establishing fault and linked to that, the prospect of prosecution of one or more of the parties involved. The authors suggest this is very different to the needs of public and private sector road agencies.  Indeed, the fact of a legal process being in play can delay the release and utilisation of critical learnings from an incident by a matter of years.

This misperception has also led many road agencies to not undertake their own investigations or, where they do undertake them, to look for a wider understanding or more generic safety outcome. The authors believe this to be misguided and a lost opportunity.

What information is typically collected?

The information collected, often referred to in lay terms as evidence or physical evidence, can be defined in simple terms as ‘items that prove or disprove a fact in an incident’. By this definition, the suite of information (sometimes referred to as the bundle of evidence, the bundle, or the brief) can be wide ranging and must be determined on an incident-by-incident basis. While a general mantra of ‘if in doubt, collect it’ is wise, which can give rise to tools such as checklists, over time practitioners will develop a good practical understanding of core and other items ultimately required.

As a basic categorisation, information gathered can either be physical (e.g. the type and dimensions of skid marks, the position of a road sign, or the type and condition of line markings) or observational (e.g. witness accounts/statements), both of which are gathered at scene; or documentary (e.g. works records, Traffic Management Plans, Standard Operating Procedures), which is collated back in the office.

Good practice tips for investigating incidents

ARRB can be contacted to provide a range of support to road agencies and private sector clients on establishing an incident investigation strategy and increasing their capacity and capability in these fields or conducting independent blameless investigations of road-related incidents. It is vital that organisations establish policy and structured practices that are consistently and reliably enacted by a pool of investigators with requisite competency in terms of skills, experience, knowledge and attitude.

Notwithstanding, the following good practice tips will assist organisations in conducting investigations, securing and collating important information from an incident scene, and just as importantly, ensuring that the lessons to be learnt are identified and continual improvement effected:

Preparation

• Prepare for the investigation. Make sure you know the correct location and find out as much as you can about the incident before leaving the office, gathering any pertinent background, e.g. maps, plans and drawings. Ensure that all equipment needed is available and readily accessible – it is good practice to have an always-ready ‘site kit’ to hand that is checked and replenished upon return from each incident.

Conduct of the investigation

• Safety/WH&S is paramount. Ensure the safety of all parties involved can be achieved and maintained before even thinking about collecting information. If the location seems unsafe or safety cannot be secured, then the investigation must not commence or continue, as appropriate. Stay calm and safe. Working solo on investigations should be expressly avoided – a second practitioner, acting as an observer, is the desired arrangement.
• Furthermore, established site protocols and courtesies must be observed if an incident has just occurred and/or emergency services are in attendance. If the latter, the investigator must make themselves known to the site controller on arrival and observe their instructions and requests. Communication is essential, as the site controller can assist in securing any transient items before they are lost (e.g. if adverse weather is expected or an involved vehicle is about to be moved); provide essential information on what evidence is related and what may have been created post incident (e.g. scrape marks created by the salvage of vehicles, tyre marks left by first responders’ vehicles, damage to vehicles caused in the extrication process); identify and bring to attention key witnesses to the incident.
• Do not just consider and record the outcome (e.g. the at-rest positions of vehicles involved and/or damage to infrastructure). While this is important, consider and identify the most pertinent underlying facts and root causes (e.g. where did the vehicle initially lose control and why? Was it a poorly maintained slippery road surface on the apex of a curve?). Always keep in mind, the reason for something happening can be more important than what happened.
• While on site, take copious photographs and video, including of drive-throughs of the site wherever possible, then review and collate the items later. Capture ‘like/similar’ environments on the same route too to help determine consistency of provision. Good practice exists in the photography of damaged vehicles, incident sites and their immediate approaches, and should be promoted. This is not always done well and can affect or compromise the investigation and/or any later incident reconstruction. Recent technologies, such as laser scanners, have revolutionised site data capture and subsequent incident reconstructions.
• Time is of the essence as there is nearly always pressure on investigators to conclude their work, e.g. so that a road can be re-opened to traffic. Efficiency and experience are crucial in collecting the information before the risk of losing it, as is prioritising which items to collect. For example, evidence such as skid marks are transient in nature, having a short existence/‘shelf-life’ before disappearing naturally in the advent of adverse weather or the wear associated with heavy traffic volumes. Other items, conversely, can be collected in a timelier manner (e.g. a return visit in light traffic or at night-time to collect items such as lane widths, which can be assumed constant at a location).

After the site component

• Consult investigation checklists and proforma documents – collate and record details of the investigation and items gathered and not available.
• Clearly set out the facts within a formal investigation report and establish recommendations (including the actions required and who is responsible for them).
• Communicate the lessons learnt from the investigation and improvements needed to mitigate risk as widely as possible, i.e. both internally and externally, ideally for the good of the sector/industry.

General

• Wellbeing – the aftermath of a road incident is stressful for the person/s directly involved, first responders and investigators alike. At the scene, compassion and empathy are good qualities for an investigator, such as when taking witness statements. Similarly, the issues associated with Post Traumatic Stress cannot be over stressed.
• Future proofing – understanding the next generation of incidents. Embedding good practice in incident investigations will enable road designers, network managers, road safety engineers and maintenance practitioners to collect and analyse information as crash mechanisms and outcomes involving vulnerable road users, motorcycles and heavy vehicles evolve, as well as in future paradigms, e.g. where Connected Autonomous Vehicles (CAVs, or driverless vehicles) are involved.

Gaps, assumptions and what if the site has changed?

Gaps in the information secured from incident scenes will typically lead to assumptions being made, which can lead to either ill-informed site- or network-management decisions (internal usage), or in the case of legal proceedings (external usage), can prejudice the road agency’s position. This further reinforces the desirability of timely and thorough site investigations, not least given that the procedural rules of civil litigation mean that a road agency may not become aware of an incident and/or that an allegation of defective infrastructure has been instigated until a few years after the incident. By that time, changes to the site and its infrastructure provision may well have occurred. So, what then? A site investigation can still provide value, confirming long-standing items or features that may not have changed or helping to establish why changes have been made. This information can then be used by the road agency and its legal representatives to determine their ongoing response. In short, it is better to know what gaps in information are present and how a site has changed, such that any assumptions made can be assessed and challenged where grounds exist.

Closing remarks

Traditional investigations follow the HVE (Human, Vehicle, Environment) approach. The Safe Systems approach acknowledges that humans are flawed, they will make errant judgements and decisions, take risks and be susceptible to oversight.

Thorough investigation of all incidents, as routinely conducted in the investigation of air and rail incidents, can foster in a new age of just culture in road incident investigation, shifting focus from blame to improvement. This shift in focus facilitates the Safe System approach and allows for the development of safer infrastructure to prevent similar incidents from occurring – which is the ultimate goal of any investigation.  A question which should be troubling us all is why this is done for air and rail incidents, but not road?

By equipping investigators with a better understanding of what is important within an investigation of a road incident, and how to appropriately document and present this information, road agencies can not only highlight deficiencies within the current infrastructure, but also formulate plans to prevent the reoccurrence of similar deficiencies in the future.