Forensic engineers: What is their role after a workplace accident?

If you’ve ever been involved in a workplace accident, you’re likely familiar with what happens next. Emergency personnel arrive to tend to the injured employee, and the police investigate whether a crime has been committed. Once the police release the scene (given no crime has been committed), the Ministry of Labour (MOL) starts its investigation. The machine is taped off, power locked out, interviews scheduled, statements taken, and interim order may be issued. Then the lawyers are called.

However, another phone call that manufacturers should consider making is to a forensic engineer. This could be critical in their defence against the MOL’s prosecution.

What is a forensic engineer?
Forensic engineers provide independent opinions to legal matters where an investigation into a material failure, accident, personal injury, fire investigation, etc., requires a technical investigation surrounding the circumstances to establish the origin and cause of an incident.

For a forensic engineer to be considered an expert permitted to give evidence in court, they have to be qualified in court. This is a process whereby their academics, technical expertise and practical forensic knowledge are reviewed, questioned and tested by the court.  

Some of the most important characteristics a forensic engineer should have include:
•    They have the technical, educational and practical field experience related to the industry they serve.
•    They are thorough and detailed investigators working within a framework of impartiality and independence.
•    They are clear and concise communicators who understand the audience they are dealing with (i.e., employee, supervisor, MOL, judge). They must also know how to write a fact-based report that is defendable in court.
•    They are recognized and qualified experts by the courts.

Why hire a forensic engineer?
Retaining a forensic engineer allows the manufacturer to have an independent voice investigating a loss. The forensic engineer explains complex technical matters, machinery, failures, etc., to the court in an open and unrestricted manner. At trial, an MOL engineer may provide evidence for the Crown based on their investigation. Not having prepared your own forensic investigation could be disastrous, as your witnesses may not have the required technical knowledge to understand the MOL report’s findings and conclusions. A forensic engineer’s investigation could discover evidence and a different cause.

As the forensic engineer undertakes a loss investigation, the outcome could be negative, exposing liability for the client. In these cases, the client (along with their counsel) is best served by understanding the liability exposure as soon as possible. This allows the opportunity for a timely legal position/strategy to be developed by counsel. At that point, the engineer would not be required to produce a report. The greatest value to a client is to always tell the truth. While bad news may not be good, trying to “help” a client by “working” the technical arguments to the client’s favour is no help at all. Further, when the courts expose the practitioner’s “extra efforts” outside of their independent role as a technical advisor to the court, they are branded as advocates, and their impartiality is diminished.

When should you retain a forensic engineer?
The best time to retain a forensic engineer is the same time you call your lawyers and/or insurance company. Loss investigation and forensic engineering come down to two variables — location of the origin and establishment of the cause. Locating the loss origin does not have to be difficult, because in many instances it is obvious (i.e., a broken machine part, a failed water line, etc.). The challenge is establishing cause. Because multiple contributing factors to the cause can be transient in nature, examining the loss as soon as possible is critical.

Every incident has its own unique set of circumstances, and evidence can reside anywhere in and around a loss scene. Therefore, the timely collection and preservation of evidence, and evaluation and disposition of multiple data and information streams are critical to understanding the true circumstances surrounding a loss when a serious accident has occurred.

Danny C. Marmora, B.Eng., P.Eng., CET, (danny@marmoraconsulting.com) is the principal at Marmora Consulting, based in Stoney Creek, Ont. His firm specializes in pre-start health & safety reviews, fire code consulting and forensic engineering.

This column originally appeared in the June 2014 issue of Manufacturing AUTOMATION.