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September 22, 2008

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Coroners and health and safety

This year, more than 200 people will die in a work-related incident, some of which will result in prosecutions — possibly. What is a certainty, however, is the involvement of the coroner. Kevin McLoughlin explains why it is important that employers and practitioners understand the role and significance of the inquest in the aftermath of tragedy.

A coroner is obliged to inquire into any violent or unnatural death.1 This duty encompasses not only fatal incidents in the workplace and on the roads but also deaths arising from diseases such as mesothelioma.

Wider still, it covers the stressed-out employee who may have been driven to suicide by the pressure of work. The coroner will sit with a jury of between seven and 11 people where the death occurred at work, but sits alone in road-traffic cases.2

Once a death occurs, the coroner has control of the body, and he or she must decide whether to order a post-mortem (PM) examination. If criminal proceedings are in prospect (such as corporate manslaughter, or the newly-created offence of causing death by careless driving3) a more detailed forensic PM may be required.

Tensions can arise here, as some religious faiths oppose PMs in principle; or, the family may not wish to delay the swift repatriation of a body for a funeral abroad. The retention of tissue samples, or indeed whole organs, can generate strong emotions at a tortured time for a family, yet the coroner has a duty to investigate and establish the cause of death and, where appropriate, this will involve toxicological and histological analysis of tissue samples.

The inquisitorial model

The procedure in the coroner’s court differs fundamentally from most other courts. In the criminal and civil courts, the parties decide what evidence to call to prove their case. The judge sits as an umpire to ensure fair play and, ultimately, s/he (or the jury) decides who wins. This is the ‘adversarial’ model of court process. A coroner’s inquest is, however, ‘inquisitorial’ in character. The coroner decides which witnesses will be called to give evidence. He or she leads the questioning of each witness and, if sitting alone, decides on the appropriate verdict.

There are no ‘parties’ at an inquest, only ‘properly interested persons,’4 such as the family, trade union, employer, insurer, or the HSE. They are allowed to ask questions of witnesses only after the coroner has finished doing so. Jury members are also permitted to ask questions.

The rationale for the inquisitorial model is that the purpose of the inquest is to establish certain facts: who died, where and when they died, and how the person came by their death. No one is on trial, so there is no equivalent of a criminal indictment, or civil pleadings to give notice of the allegations to be made. Decisions are made on the balance of probability rather than the criminal standard — beyond reasonable doubt.

The rules of evidence are not as stringent, so evidence may be admitted that would not be admissible in a criminal trial. If a coroner considers evidence to be uncontroversial, s/he may admit it in documentary form.5

Rule 42 of the Coroners Rules 1984 prevents the inquest straying into the territory of other courts by prohibiting any verdict from appearing to determine matters of criminal liability on the part of a named person, or any issue of civil liability. This can give rise to strange results.

For example, in August 1987, Michael Ryan shot dead 14 neighbours in the village of Hungerford. At the subsequent inquests, unlawful killing verdicts were returned on the victims but, owing to Rule 42, Ryan could not be named as the murderer, even though witnesses saw him shoot several people.

A second restriction is contained in Rule 22, which states that no witness shall be obliged to answer any question that tends to incriminate him or herself. This rule does not prevent the question being asked, so those representing witnesses in the spotlight need to be vigilant to protect them from answering questions while on oath, without realising the implications. At an inquest the proceedings will be recorded, and a formal transcript will become available.

The significance of an inquest

The ostensible purpose of an inquest is thus to determine certain limited facts. To reach that goal, however, evidence may be taken that can make some individuals and organisations feel decidedly uncomfortable. It is usually the first occasion when all the witnesses will assemble in a formal setting to give evidence on oath (or affirmation).

The inquest can become a dress rehearsal for other cases. The HSE may attend to see if the evidence justifies a prosecution. A family may know little of the background circumstances leading to the death, and will want to find out what happened so as to provide a foundation for a civil compensation claim.

In construction site cases, a principal contractor might want to draw admissions from the employees of sub-contractors to help it deflect responsibility for what happened. Individuals who fear being made a scapegoat may be keen to get points ‘on the record’ as to the instructions, or training they received.

These competing interests create a drama in which ‘properly interested persons’ wrestle to persuade the coroner to extend or restrict the scope of the inquest. Lamentably, though, some insurers and employers do not appreciate the wider significance and so arrive poorly prepared and, unwittingly, worsen their position.

The timing of an inquest varies enormously. The coroner will be dependent on the Police, the Health and Safety Executive, or local authority to provide a file once their investigation is concluded. Delays occur that benefit no one and serve only to discredit the whole system. The fact that the inquest into the Potters Bar rail disaster in May 2002 has still not taken place demonstrates the point.

The verdict

In some respects, the ultimate verdict at an inquest is of less importance than the evidence and public scrutiny it engenders. There are two distinct approaches to verdicts. Traditionally, ‘short-form’ verdicts, like accident, natural causes, unlawful killing, or open verdict, have been used to pigeonhole the court’s conclusions.

The value of such labels is increasingly being questioned: is accidental death an accurate label when a motorist has killed a pedestrian after drinking alcohol and driving faster than the permitted speed limit? How does it help to have an ‘open’ verdict, which reaches no firm conclusion and tells us absolutely nothing about the circumstances?

The alternative approach is generally referred to as a ‘narrative’ verdict. This involves recording the conclusion of the inquest in a brief, factual account.

An illustration will assist in understanding the concept: in Brighton, in 2001, a lady died from an aneurysm. A ‘natural cause’ verdict would thus have been an option. The narrative verdict actually returned was that she ‘died from a previously undetected aneurysm, which ruptured within an hour of her being assaulted by two strangers, one of whom spat at her’. The succinct history of the occurrence tells us far more than a mere label.

The danger for anyone in the spotlight is that a factual statement may be pregnant with implication, even though it does not infringe Rule 42. So, while it may not be acceptable to record: ‘There was a failure to carry out a risk assessment€

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