21 October 2013

Following a death, a civil claim is not the first thing on the family’s minds. Nonetheless, where that death may have been caused by working conditions or a work related incident, it is right for families to remember the possible need for a future claim against an employer. The employer will also have a real interest in understanding the events connected to the death to assess its responsibility and the risks its undertaking may be causing.

Normally any civil claim will be delayed until the completion of the Inquest. That inquest will explore the facts and evidence prepared in relation to it. That evidence (samples, documentation, physical items and individual testimony) may potentially be relevant in a future claim. Parties to an inquest will take a close interest in the evidence obtained and it will, in some cases be sensible to consider it in relation to a potential civil claim as well as in relation to the coroner’s investigation.

The recent case of Dorothy Matthews (Widow & Executrix of Reginald Matthews, Deceased) v Herbert Collins (T/A Herbert Collins & Sons) & ORS (2013) has highlighted an evidential issue to be aware of in circumstances where a death may have been caused or contributed to by industrial disease. This involved histological samples on which medical experts could base their opinions and which was relevant not only for the Inquest but also the conduct of any civil proceedings.

Unfortunately, however, the family, who were not advised by a lawyer on the relevance of the samples, authorised the disposal of the samples following the inquest. In the subsequent civil claim, the defendant applied for the claim to be struck out on the basis that the absence of the samples amounted to an abuse of process which had the real prospect of leading to an unfair trial. In the particular circumstances of this case where the family had sought clarification from the Coroner and were told that the usual approach was disposal, the defendant’s application was unsuccessful. However, the case identified the potential that a claim could be struck out or substantially weakened if such key evidence is lost. For the solicitor, failing to seek this confirmation in circumstances where the potential for a civil claim is known to them is an omission which could be considered negligent.

Therefore, where there remains the possibility of a civil claim being brought a deceased’s family should consult a solicitor before authorising their disposal. For the solicitor involved, it is good practice that they advise both their clients and the relevant coroner's office that samples should not be disposed of without their confirmation. For any party in an inquest, one eye should be kept on all the evidence at all times in respect of a potential subsequent civil claim.

The author Matt Kyle is a member of Burges Salmon’s Health and Safety team led by Ann Metherall. He represents clients in relation to safety matters including deaths at work and inquests.

Key contact

Ann Metherall

Ann Metherall Partner

  • Head of Dispute Resolution
  • Head of Health and Safety
  • Transport

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