Claims club

March 2016

Agenda9.30am Start

1) Nick Kitchen, Costs Draftsman at Burcher Jennings will be looking at recent costs

decisions

2) Mark Fowles, partner at Browne Jacobson will be looking at the role of witness

statements - what should go in them, what should not, the format and their use at

trial.

11.00am Break

3) Dale Collins, partner at Browne Jacobson will be considering death at work,

insurers position, witnesses, procedure and outcomes

12 noon Close with lunch

INTRODUCTION

TO THE CORONER

& INQUESTS

Dale Collins

What we will cover today?

• Inquest formalities overview

• Inquest practicalities

• Benefits of representation at inquest

Who is the Coroner? • Responsible for investigating deaths and determining the cause of death

• Independent Judicial Officer appointed and appointed / paid by the local authority

• Qualifications: lawyer (>5 years standing) under 70 yrs old– Some are dual qualified (law and medicine)

• Governing Legislation– Coroners (Inquest) Rules 2013

– Coroners (Investigations) Regulations 2013

– Coroners and Justice Act 2009

What does the Coroner do? Upon reporting of a death the Coroner can do one of three

things:

• certify the death as due to natural causes without a post-mortem

• certify as due to natural causes after a post-mortem

• initiate an investigation into the death (under CJA 2009)

When must the Coroner investigate a death?

• Death is violent or unnatural (including death due to self harm)

• The cause is unknown

• Death in custody or state detention

What is an unnatural death?• “Unnatural death” is wider than “unnatural causes”

• Test is not whether the cause of death is natural, but whether the

circumstances of the death are.

• A death is unnatural “whenever a wholly unexpected death, albeit

from natural causes, results from a culpable human failure” – R

(Touche) v Inner North London Coroner [2001]– Decd gave birth to healthy twins by caesarean section.

– 11pm BP 120/60

– No further monitoring until 1.35am when BP 190/100

– Suffered left sided hemiplegia and cerebral haemorrhage and died.

– Expert evidence described the lack of monitoring as “astonishing” and advised that with monitoring and earlier intervention death would probably have been avoided.

– Hypertension leading to cerebral haemorrhage was a natural medical cause, but the circumstances of the death were unnatural and an inquest should be held.

What is the purpose of an inquest?• Fact finding exercise

– It is not a trial / purpose is not to apportion blame but…

– It may feel like it during the inquest…!

• Four key questions

– Who the deceased was?

– How, when and where the deceased died?

– NB: Article 2 provisions – “how and in what circumstances”

• Conclusions and liability [s10(2) CJA 2009 /old rule 42]

– “No conclusion shall be framed in such a way as to appear to determine any

question of:

1. Criminal liability on the part of a named person, or

2. Civil liability’’

– Evidence can deal with issues relevant to fault / negligence so long as relevant

to exploring ‘how’ someone died

Types of inquest

• “Jamieson inquest”

• “Middleton inquest”

– Article 2 ECHR – Enhanced Investigation

– “There are some cases in which the current regime for

conducting inquests…does not meet the requirements of the

Convention…Only one change is in our opinion needed: to

interpret “how”…as meaning not simply “by what means” but

“by what means and in what circumstances”.”

R v Middleton (2004)

What is the scope of an inquest?

• Coroner has wide discretion in setting scope of inquest (ex parte

Smith)

• For all types of inquest, it is now expected that:

− “culpable and discreditable conduct is exposed and brought to

public notice” [Lord Bingham in Amin (2003)]

− It is the duty of the Coroner.....to ensure that the relevant

facts are fully, fairly and fearlessly investigated. He must

ensure that the relevant facts are exposed to public scrutiny

particularly if there is evidence of foul play, abuse or

inhumanity” [ex parte Jamieson (1993)]

What evidence can the Coroner

hear?

• Relevant hearsay evidence is admissible

– Oral / documentary

• Coroner’s inquest is not bound by strict law of evidence

• No prohibition in legislation or rules

• Cannot be excluded if relevant

• Question: how much weight is given to such evidence?

What should the inquest achieve?

• Independent scrutiny of events surrounding a violent /

unnatural death

• Establish the facts

• Allow properly interested persons an opportunity to question

witnesses

• Draw attention to circumstances which might lead to further

deaths

When does a Coroner sit with a jury?(1)

• Coroners and Justice Act 2009 (Part 1, s7)

– S7(1) Default position – inquest must be held without a jury

Default position

Not about reasons not to do so

– s7(2) An inquest into a death MUST be held with a jury if:

The coroner has reason to suspect that the deceased died in custody or state

detention AND the death was violent/unnatural OR cause of death is unknown; or

the death resulted from act /omission of a police officer OR member of a service

police force

death was by notifiable accident, poisoning or disease which must be reported to a

government department or inspector

Policy reasons – to be seen as independent from state

When does a Coroner sit with a jury?(2)

• s7(3) An inquest into a death MAY be held with a jury if:

– The coroner thinks there is ‘sufficient reason’ for doing so

Discretion / balance

Consider wishes of family

Do facts bear resemblance to mandatory situations?

Difficult medico-legal issues determined by medical-legal QC than coroner / jury

– Should decide scope of inquest first

Who can ask questions at an inquest?

• Coroner

• Properly interested person (“PIP”) or their legal representatives):– a parent, child, spouse and any personal representative of the deceased

– any insurer who issued a life insurance policy, or beneficiary of such a policy

– any person who may have caused, or contributed to, the death of the deceased

– (If death caused by an injury/disease relating to the deceased’s employment) a trade union representative for the deceased’s trade union

– a representative of an enforcing authority or person appointed by a government department to attend

– the Chief Officer of Police

– any other person who, in the opinion of the Coroner, is a PIP

• Jury (if a jury inquest)

• Order of questioning: Coroner, family, PIPs, witness representative.

Inquest pathway

• Coroner opens inquest shortly after death

• Usually able to release body for funeral at that time or soon after

• Coroner’s Officer collates evidence

• Pre-inquest reviews (PIR) in complex cases

– Includes written / oral submissions on jury / Article 2 / witnesses / disclosure

• Coroner re-opens inquest for full hearing

• Coroner’s Officer swears in jury (if applicable)

• Coroner hears evidence

• Coroner sums up/directs jury

– Includes written / oral submissions on conclusion

• Conclusion / completion of inquisition form

• Death certificate issued and death registered

Giving evidence

at an inquest

Before the inquest

• Review your witness statement

• Be familiar with the entries made in the medical

records

• Consider the types of questions which may be

asked and responses

• Make sure you know how to get to the Coroner’s

Court and have relevant contact numbers.

The inquest (1)

• Generally, witnesses may sit through the whole hearing

• Coroner will call witnesses in chronological order

• Evidence on oath or affirmation

• Questions:

– By coroner

– The family or their lawyer

– Other ‘’interested parties’’

– Your lawyer

The inquest (2)

• Arrive at the Coroner’s Court in good time.

• Bring some water and/or non-fizzy drinks with you (and

snacks (but avoid “noisy” wrappers) as the day(s) will

be long).

• Dress smartly (jacket if possible but no scrubs). Do not

wear black, no loud/bright jewelry.

• You may take your own copy of your statement to the

stand if you wish.

• Be supportive of your colleagues and all other staff.

The inquest (3)

• The Coroner’s Court is open to the public. Members of

the Deceased’s family, witnesses, legal representatives

and members of the press may be present.

• Stay composed and do not react visibly to anything that

is being said in the Courtroom – the Coroner will

observe faces.

• Ensure mobile phones are switched off in Court.

• Your conduct should be reserved and respectful.

• Politely avoid engaging with the family.

Answering questions (1)

• Witnesses should be prepared for the Inquest. Advise them:

– Answer the question you are asked

– Beware pauses!

– Do not venture an opinion unless asked

– Questions outside your area of expertise

– If you need to refer to the records, do so

– If you don’t know the answer, say so!

– Inappropriate questions – the role of your lawyer

Answering questions (2)

– If you did not hear or understand a question, simply

ask for a clarification or repetition.

– Direct your answers to the Coroner and speak

slowly, clearly and calmly.

– Do not be put off by any questioning ‘tactics’ such

as confusing long winded questions!

How does an inquest fit in with

other investigations? (1)• Coroner’s and Justice Act 2009, Schedule 1

• Police:

– Check - criminal investigation or acting on behalf of the coroner?

– Coroner can be asked to suspend investigation by prosecuting authority / Director of Service

Prosecutions investigation homicide / related offence

– Coroner must suspend investigation when aware person has appeared before Court in

relation to homicide of the deceased

– Evidence of criminal activity by identifiable person comes to light during investigation?

Coroner MUST suspend investigation

Coroner MUST adjourn the inquest part-heard

Coroner MUST direct police to conduct criminal investigation

Coroner MUST furnish CPS / DPP with a report to determine any criminal charges to be brought

against the individual

– Inquest opened and immediately adjourned until outcome of police investigation

• Coroner has a general power to suspend where it appears reasonable to do so

How does an inquest fit in with

other investigations? (2)

• Health and Safety Executive (HSE)

– Different scope of investigation

– Can run along side Coroner’s investigation

– HSE can ask Coroner to suspend investigation

– Memorandum of understanding

E.g. HSE discloses report to Coroner

E.g. HSE as a PIP to inquest

– Prosecution prior to inquest where minimal risk of unlawful killing conclusion

at inquest.

THE CORONER’S

CONCLUSIONS

What can the coroner conclude?

• Short form conclusions

Natural Causes

Accidental death

Suicide

Unlawful killing

Open

Alcohol/Drug Deaths

Road Traffic Collision

• Long form conclusion (narrative conclusion)

Short form conclusions (1)

• Natural causes• The result of a natural disease process – see Ex parte Benton, Court of Appeal

• Where a patient suffers from a potentially fatal condition and medical treatment does no more than fail to prevent the death

• If there was a failure to give medical treatment to such a patient, even negligently, the death would still be from natural causes

• Where a patient is suffering from a condition, which did not in any way threaten his life, but the treatment caused the death, the proper verdict is accident or misadventure

• Accidental death

– Person dies not from a natural cause but from either an event over which there was no

human control or an unintended act or omission;

– Cf: Misadventure – an unintended consequence of an intended act (rarely used)

Short form conclusions (2)• Suicide

• The coroner must be satisfied beyond reasonable doubt that:

• The deceased did the act that resulted in his death AND

• When he did the act he intended to end his life (difficult to prove!)

• If the Coroner is not satisfied both apply he will consider accidental death / open verdict / narrative verdict

• Unlawful killing

• Covers all cases of unlawful homicide

• E.g. gross negligence manslaughter

• E.g. corporate manslaughter

• Criminal standard of proof – beyond all reasonable doubt

• Open

• Insufficient information for the Coroner to reach a conclusion

Long form conclusions (narrative)

• Especially where short form verdict is inadequate

• More helpful than short form verdict

• Reflects the fact finding spirit of the Inquest

• Increasingly common in medical and some deaths at work

cases

• Must not contravene Section 5(1) or Section 10(2)

“… judgmental conclusion of a factual nature, directly relating to the

circumstances of the death. It does not identify any individual nor does

it address any issue of criminal or civil liability.” Middleton (2004)

• Vary in length - factual paragraph(s) summarising what has happened

Long form conclusion - example

• “Mrs H died of bronchopneumonia resulting from

dementia. Her death was probably accelerated by a

short time by the effect on her pneumonia of

injuries sustained when she fell through an

unattended open window, which lacked an opening

restrictor” Longfield Care Homes (2004)

PREVENTION OF

FUTURE DEATHS

(PFD)

When is a PFD report issued? (1)

• Mandatory where the evidence gives rise to a concern that circumstances exist which create a risk that other deaths will occur in the future

• In the Coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk – Para. 7 of Schedule 5 of the Act wide scope; coroner’s concern may arise from

“ANYTHING revealed by the investigation”

– Para. 15 of Guidance Note 5: ‘Sometimes it may be necessary to hear some evidence which may be relevant for purpose of making a report but not strictly relevant to outcome of the inquest’.

• Para. 10 of the Guidance note No 5:“Giving rise to a concern is a relatively low threshold” (London Bombings of July 2005/Lady Justice Hallett)

When is a PFD report issued? (2)

• Can be issued at inquest or at any point during investigation!

– Precondition: Coroner has considered all relevant documentation and evidence (see Regulation 28(3))

• A matter for the coroner alone? – The chief coroner would ‘encourage assistance from IPs including written

submissions’ See para 15 of Guidance note No 5

• Report can be issued to a non-PIP

• Standard Form – “…they should not be unduly general in their content…They should be clear, brief, focused, meaningful and designed to have practical effect”

What’s the fall out from a PFD

report?• Recipient must respond within 56 days

– Must include an action plan and timetable for implementation or reasons why no action proposed

• Adverse publicity

• Impact on commercial contracts

• Spot light on systemic practices (time-consuming; expensive)

• Re-appearance before the same Coroner with the same problem later?!

• Supports litigation

How do you avoid receiving a

PFD?• Conduct a thorough investigation at an early stage

• Produce a clear and relevant report and disclose to Coroner

• Clear action plan that has been monitored / completed

• Specific organisational lesson-learning evidence

• Ensure witnesses are aware of the new policies / procedures!

• Co-operate with other PIPs

• Coroner may opt to write to organisation for reassurance where need for PDF is

uncertain

INQUESTS

AND CLAIMS

Interface between inquests and

claims (1)• Claim can be brought three years from death

• Inquest can ‘make or break’ a claim!

– Coroner’s conclusion

– Obtain transcript of inquest

• Litigation can run parallel but usually follows inquest

– Inquest as a testing ground for evidence and witnesses

• Fishing expedition

• The use of statements provided to the Coroner, evidence at the

inquest, and transcripts

• Legal representation at inquest - consider admissions breach and

causation prior to inquest

Interface between inquests and

claims (2)

• Beware of apologies v explanations v admissions!

– Especially in complaint correspondence

• Claim may not always reflect findings of inquest!

Interface between inquests and

claims (3)

• Criminal proceedings

– Police

– HSE

• Used to test evidence by both potential

defendant(s) and prosecution

• Used to identify strong/weak witnesses

SUMMARY

What can you do?

• Instruct early!

• Early instruction will ensure you are represented at

any interviews under caution

• Pre-Interview disclosure in advance of any

interview

• Early indication of expert Police evidence on the

“causes” of the accident

• Early access to a raft of evidence both expert and

eye witness through the Inquest process may

enable an early assessment on the strength of any

civil claim

• Ability to “test” the evidence at Inquest without

the risk of any finding of fault

• Ability to influence the decision on criminal

prosecution before charges are brought

ANY QUESTIONS?

Contact us…

Mark Fowles – mark.fowles@brownejacobson.com

01392 458734 / 07971 192964

Dale Collins – dale.collins@brownejacobson.com

01392 458770 / 07909 883246