Dealing with fatalities
25 March 2020
Sally Hancock discusses the appropriate steps when dealing with an inquest in the aftermath of a work-related death
WORK-RELATED deaths, though rare, are one of the most difficult situations a company and its people can face. In the midst of the shock and grief that follows, organisations are likely to be called to an inquest to provide an account of what happened and to answer questions from concerned parties, including the deceased’s family, on how this tragic event was able to happen.
With this in mind, organisations must be fully prepared. Collating the necessary information, co-operating with investigative bodies and dealing with possible concerns over eventual inquest findings can prove challenging, especially when attempting to maintain usual business operation at an already difficult time for staff. If dealt with inappropriately, reputational risk to the organisation is high – especially if the media are following the inquest – whilst an ill-thought out legal strategy can lead to significant penalties, including criminal charges or a civil claim.
What is an inquest? How can you prepare?
An inquest is a legal fact-finding investigation into a sudden or unexpected death. Its function is to establish:
Who the deceased was
When they died
Where they died
How they died
While the purpose of an inquest is not to find fault or apportion blame, and nobody is on trial, evidence heard and conduct shown during the process can and often does have a direct impact on the outcome of criminal and civil investigations that can run parallel to the inquest.
A wide range of evidence is made available in inquests. For this reason, in recent years they have become an increasingly popular and important source of information for those with a vested interest, such as the deceased’s family members or an enforcement agency such as the Health and Safety Executive (HSE). Evidence heard during an inquest can be utilised in ongoing criminal and civil investigations and so having a clear strategy when engaging with the inquest process is critical.
Organisation(s) and individuals in question must fully cooperate with the inquest process to the best of their ability as information cannot be withheld from the process, but demonstrating ill-preparation or poorly presenting evidence can all have serious consequences. Levels of scrutiny will be heightened; internal and external parties may feel alienated by your organisation and failings may be highlighted in later proceedings.
To attempt to avoid these potential outcomes, organisations working in a sector with a high risk of work-related deaths should consider securing expert legal and sector specific health and safety advice, setting out a robust protocol in the event of a serious incident. If this preventative measure has not already been put in place, legal assistance should be enlisted immediately following an incident. A specialist health and safety solicitor can assist and advise on the evidence gathering process, including securing documents and drafting witness statements, and can help to ensure all possible bases are covered. They can also advise and provide clarity on the submission of evidence to enforcement agencies such as the police and HSE, to ensure an organisation’s position is best protected.
What happens during an inquest?
During the inquest process, organisations will be required to provide statements from witnesses. Those witnesses will then be expected to give evidence at the inquest. This can be daunting for anyone and with this in mind, witnesses should be fully briefed on what to expect, but also reminded that they should give an honest and factual account, with no obstruction of the truth.
While they may not have seen the incident first-hand, other representatives from the organisation, such as company directors, could also be required to be present. They would provide evidence to the inquest on behalf of the business, its current operations and steps taken to ensure such grave incidents never happen again.
What is not always appreciated by witnesses is that not only the coroner but any other individual or organisation granted “properly interested person” status can ask them questions. Properly interested persons include the family but can also include enforcement agencies such as the police and HSE. There is also usually a jury present in work-related death inquests, and members of the jury can also ask questions. This level of scrutiny of a witness’s evidence can sometimes be overwhelming and it is critical to ensure they are prepared for this.
Once all of the evidence has been considered, the coroner will direct the jury to reach a conclusion, which used to be known as a verdict. There are a number of possible outcomes that can be adopted and in the instance of a work-related death, the most probable are:
‘Unlawful killing’ is the rarest and most serious of these outcomes and can have serious consequences, including manslaughter charges.
Even if the outcome is that the incident was accidental, the coroner may believe further action is still needed to prevent another death. In this event, they would write to the organisation or person they believe can make changes to avoid another death. This is known as a Prevention of Future Deaths Report (PFD report) and it requires the recipient to advise the coroner of any further action they intend to take in response to the concerns raised.
Over recent years, families have been attaching growing importance to inquests. As there is a wide range of evidence made accessible and families are permitted to ask questions of witnesses, it is increasingly seen as an opportunity to find out not only how but why their loved ones’ death happened.
With coroners receptive to questions from the deceased’s family, there can potentially be a wider scope of questioning and this can have implications for any criminal or civil proceedings running parallel to the inquest.
Despite the matter-of-fact nature of an inquest, they can be highly emotional, especially if family are present. Any members of the organisation in attendance should be prepared for this atmosphere and to maintain composure throughout. Additionally, by objecting, refusing or being unable to answer questions, organisation(s) and witnesses could appear unhelpful and defensive to the family; yet every witness is entitled not to incriminate themselves, further enforcing the need for diligent preparation ahead of the inquest.
Before, during and after a work-related death inquest, small and large organisations are at risk of major reputational damage. The scale of this will often hinge on an inquest’s findings, the conduct of those involved and what evidence is made publicly available. When an incident is particularly high profile, the release of sensitive evidence, such as CCTV or imagery, can quickly enter the public realm via the media, who are showing an increasing interest in attending inquests and securing access to evidence.
The consequence of this for a larger business can be damning, with irreparable damage to public perception of the organisation. For a smaller business, a serious incident can threaten their very existence. This is not only due to possible penalties from an associated criminal or civil investigation, but also reputational damage on a local level. To minimise damage, a communications plan could help to manage possible public backlash, with media statements required to accompany the release of sensitive documents.
Preparation is key
In any event, all businesses involved must be forthcoming, prepared and ready to face a full and fearless process. At an appropriate point following a workplace death, you may wish to notify a solicitor to work with you to prepare statements and gather evidence. Keep in mind that this is not an exercise to apportion blame, but a necessary step to help those invested in the process – especially families – understand how such an incident happened. That is, however, still in the context of any underlying ongoing criminal and civil investigations that could adopt evidence heard in the inquest.
Having a clear strategy in place on how to respond in the aftermath of a workplace death, in advance of such grave incidents, is vital. In the event of a worse-case scenario, it can provide an organisation with clear, measured steps and help to mitigate further damage. Knee-jerk reactions can lead to poor decision making, exacerbating the severity of an incident for both the organisation and the deceased’s family. Additionally, mapping out a response strategy could also help to identify improper operational practices or areas of risk, helping to avoid work-related injuries and deaths in the long run.
However, ensuring an incident is not able to occur in the first place should be the top priority. An organisations’ health and safety practices need to be watertight, particularly for companies operating in high-risk sectors, such as construction, manufacturing or agriculture. Ensuring proper health and safety procedures are in place and duly followed is not the sole responsibility of a health and safety officer, but should always remain a board-level priority.
Sally Hancock is health and safety partner at law firm BLM. For more information, visit www.blmlaw.com