The Weekly Reflektion 52/2023

Many companies are making the transition from ‘Human Error’ to ‘Human Performance’ in the way they investigate incidents and accidents and how they improve their performance. The ‘Human Error’ approach was based on the identification of what went wrong, who made the mistakes and led to actions to correct mistakes to prevent recurrence. The investigations most often did not get to the root of the problem. ‘Human Performance’ seeks to understand why people did what they did and why it was rational for them to do so. Personal characteristics and behaviors are considered, and context and perception are key factors in this understanding. Reflekt believes that this direction is likely to be more successful in the prevention of accidents and Major Accidents. It is concerning therefore that the laws that regulate industry and society are not making the same transition. When an accident occurs then negligence and even gross negligence are assessed when a prosecution of the people involved is considered. Peoples’ mistakes and errors seen in the light of ‘Human Performance’ take on a whole new perception in the darkness and shadows of the legal system where ‘Human Error’ seems to be the focus. Here the objective seems to bedirected to find and punish a culprit and by implication use the threat of punishment to deter others from making similar mistakes. Unfortunately, this objective is unlikely to lead to the learning that we need to improve.

Helge Ingstad aground in Hjeltefjorden

Negligent or not negligent, that is the question.

Reflekt has written several Reflektions on the collisions between the Norwegian Navy frigate Helge Ingstad and the tanker Sola TS in Hjeltefjorden 8th November 2018. The Reflektion in week 21/2023 covered the prosecution of the officer of the watch and the guilty verdict from the lower court(Tingrett). The main points of the judgement are repeated here for information.

• That the duty manager (officer of the watch) did not pay sufficient attention to the radar.

• That he didn’t comprehend radio calls and act on them.

• That he made course changes to port without assuring himself what to swing away from.

• That there was no one else who acted in an extraordinary way that could excuse his action.

In the Reflektion we were critical to the conviction, and we stated our hope that the conviction would be appealed and overturned. An appeal was indeed initiated and on 20thDecember 2023 the appeal court (Gulating lagmannsrett) gave their judgement. The conviction was upheld, and the officer of the watch sentenced to a 60-day conditional prison sentence. The Attorney Generals office, the prosecution in this case stated:

We hope with this unanimous and thorough verdict we can now put a criminal end to the case.

We (Reflekt) hope that this conviction should be the springboard for a proper discussion on negligence and how this is used to justify prosecutions in the criminal system. 

The basis for the conviction was:

• violating Section 356 of the Penal Code “for negligently causing maritime damage, which could easily have resulted in loss of life”.

• under Section 78 of the Military Penal Code, “for as a commander, being guilty of negligence or carelessness in the performance of his duties. and causing substantial harm.”

It is worth taking a look at the definition, or rather definitions,of negligence to put the process in some context. The first definition is from the Norwegian Encyclopedia (Store Norske Leksikon):

Negligence is a legal term for carelessness or indifference. The negligence of an act, i.e. without the care or care required in the matter in question, may have legal effects in both the field of civil law and criminal law.

This is an absolute definition albeit vague. That is, the actions of a person are measured against a standard and then assessed on how they meet the standard. The interpretation of what was required of the officer of the watch and the assessment of whether he fulfilled these requirements in the court case seems to be based on this somewhat unclear definition. This definition arguably lends itself to the application of the ‘Human Error’ approach and relating negligence to the incorrect decisions and actions taken.

Another definition of negligence is:

Negligence is a form of culpability that involves having acted contrary to what an ordinary reasonable person would do in a similar situation. A distinction is made between ordinary/simple negligence and gross negligence. In the latter case, a marked discrepancy between the behaviour exhibited and behaviour that can objectively be described as justifiable is often required.

This is a relative definition with an attempt to compare the actions taken against what another person would have done in a similar situation. Many of you will recognize this approach in the ‘just culture’ concept promoted by many companies when they assess the actions of people in an incident and accident. ‘Similar situation’ is key to this assessment and covers both the circumstances and context from the incident itself and personal factors for example competence, trainingand experience. In the Helge Ingstad investigation, the investigation team considered the Office of the Watch’s competence and training and were of the view that a person with more experience would probably have recognised the dangers and taken appropriate action sooner. ‘Similar situation’ would require that comparing the Officer of the Watchs decisions and actions against another would require the hypothetical other person to have the same competence, training and experience. If the conclusion reached was that another person in a ‘similar situation’ is likely to have made the same decisions and taken the same actions, then is it negligence?

As we stated in our Reflektion in week 21/2023 we believe the ‘Law is an Ass’ in this area. Since the courts are only applying the law as they believe it was intended then it is up to the politicians to make the required changes. In order to make the necessary changes to the assessment of negligence in a criminal prosecution the politicians need to make the journey from ‘Human Error’ to ‘Human Performance’ and they need to start soon.

We also hope that the conviction of the Officer of the Watch will not prevent the Norwegian Navy from making systemic improvements to ensure navigators are not placed in similar situations in the future. Assuring that people are competent and ensuring they have appropriate experience and training is central to the prevention of future collisions. From the critical reaction from experienced naval personnel to the conviction and rejection of the appeal, the problem with competence and experience among navigators in the Norwegian Navy is not new and was known at the time of the incident. There is much to learn. 

Merry Christmas

Reflekt AS