When it comes to personal injury investigations, hindsight biases can lead to inaccurate assessments of causation and fault. Hindsight bias is considered a psychological phenomenon that occurs when people evaluate past events and overestimate their ability to predict the outcome based on what they know now, instead of what they knew at the time. This can make it difficult to accurately assess the facts of a case and can lead to errors in judgment.

If adjusters and experts are influenced by hindsight bias, they may be more likely to miss pertinent factors of the claim and incomplete or incorrect information may be obtained. In this blog, we explore why it is important to consider hindsight biases in personal injury investigations and discuss several approaches to minimise the risk.

Argo Managing Agency Ltd v Al Kammessy (2018)

In the matter of Argo Managing Agency Ltd v Al Kammessy — where an individual slipped and fell on a wet area at a shopping centre — litigation hindsight was considered in the primary judge’s findings. CCTV footage of the incident illustrated that the centres’ first cleaner inspected the incident scene at 10:35am. At 10:43am, a second cleaner, Mr. Nguyen, passed the area. A minute later, the respondent walked past the area, slipped, and fell. The NSW District Court primary judge determined that the cleaning contractors did have an adequate system of cleaning in place; however, also found that Mr. Nguyen was negligent by passing the incident scene and not having observed the spill that was on the floor. The matter was then heard by the NSW Court of Appeal. The issue on appeal was based on the finding that Mr. Nguyen should have detected and cleaned the spill, had he acted with reasonable care. The Court of Appeal overturned the decision of the District Court.

Of note regarding litigation hindsight, the judge held that it was not appropriate to use the benefit of hindsight to conclude that Mr. Nguyen failed to identify the hazard. Of further interest was the judge’s finding that the duty of Mr. Nguyen to the respondent was to exercise reasonable care to identify and remove hazards, not to guarantee that all hazards would be removed.

Minimising the risk of hindsight biases

During a personal injury investigation, Sedgwick’s experienced team of adjusters examine the incident from different angles to help reduce the influence of hindsight bias. By considering multiple perspectives, our adjusters can identify aspects that may have been missed or overlooked, leading to a more accurate understanding of the situation. While hindsight bias can be a significant challenge in personal injury investigations, there are five ways adjusters can minimise the risk of them occurring.

1. Be objective. Our adjusters approach investigations without any preconceptions, assumptions or judgments.
2. Avoid asking leading questions. Doing so can provide the interviewee with a particular direction or suggestion or cause them to remember events in a certain way, leading to incorrect or incomplete recollections of events.
3. Take a methodical and systematic approach. The process of gathering evidence is crucial in investigations. Our adjusters collect all relevant information systematically, including physical evidence, photographs, witness statements and medical records. This approach ensures we consider all aspects of the incident, reducing the possibility of overlooking important information that may be critical to the investigation.
4. Maintain awareness of hindsight bias during the investigation process. Our adjusters constantly remind themselves and their interviewees that the information provided is based on their recollection of events at the time, rather than their current knowledge of the incident. Doing so promotes information sharing based on the interviewees original perception of the situation.
5. Consider alternative explanations or hypotheses of the incident. Our adjusters are experienced enough to be open minded to any ideas relayed that may challenge their current understanding of the event and test their assumptions — reducing the risk of bias and ultimately, enhancing the accuracy of their conclusions. We also cross-reference information provided by different witnesses and through the examination of physical evidence to ensure accuracy.

Key takeaways for loss adjusters

At Sedgwick, our team of personal injury adjusters understand that when investigating personal injury claims, we must be mindful that our inquiries are retrospective. The question of what a reasonable person facing a foreseeable risk of injury would have done with that risk should always be a consideration, whilst at the same time keeping in mind the altering effects of hindsight. We take into consideration that we are garnering evidence on an incident that occurred in the past, through today’s lenses. With that, comes the risk of bias.

Avoiding hindsight bias is challenging, but if we stay objective, avoid leading questions, take a methodical and systematic approach, and maintain awareness, we can minimise the risk.

Sedgwick has a highly experienced team focused on the investigation of personal injury claims. To learn how our experts can support your organisation, email talei.morgan@au.sedgwick.com or yolanda.suarez@au.sedgwick.com.

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