LEGAL SUPPORT IN FATAL ACCIDENTS€¦ · you purchase your house will also draft your will and then...

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LEGAL SUPPORT IN FATAL ACCIDENTS

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CONTRIBUTORS AND CONTACT INFORMATION

PAUL WHITE(Senior Associate and Lead Specialist in Fatal Accident Cases). APIL Accredited Fatal Accident Specialist.

T: 01752 292263

[email protected]

CRAIG BUTLER(Associate and Solicitor). A Director of Headway Plymouth, APIL member and South West Regional Coordinator for the Motor Accident Solicitors Society (MASS).

T: 01752 292396

[email protected]

DEAN CRUICKSHANKS(Associate, Solicitor, Head of Asbestos Team). APIL Accredited Asbestos Disease Specialist.

T: 01752 292334

[email protected]

01752 663295 or email [email protected] I 3

TABLE OF CONTENTS

The Author 3

When Tragedy Strikes 4

1. The Inquest process 6

2. When will I need a lawyer 8

3. What will it cost? 10

4. What can I claim? 11

5. Workplace accidents 12

6. Asbestos related illness 13

7. On the road 14

Getting started 14

Other resources 15

Wrong time, wrong place 16

Paul White is a Senior Associate and a Chartered Legal Executive embarking upon his fourth decade with the Claimant Personal Injury Department at Wolferstans Solicitors in Plymouth.

He joined the department in 1990 and became a Fellow of the Institute of Legal Executives (now known as a Chartered Legal Executive) in 1995. He is currently the lead specialist in fatal accident cases, acting for the families of many victims who were killed at work, on the roads, or who were simply in the wrong place at the wrong moment. Paul was one of the first lawyers in the country to be awarded the prestigious APIL specialist accreditation in fatal accident work.

Additionally, Paul undertakes cases on behalf of clients who have sustained serious and life-

changing injuries both here in the UK and abroad including amputations and paralysis. He continues to enjoy considerable success in strongly contested liability cases and matters involving multiple parties and complex issues of law.

As Chairman of the local Hospital Liaison Committee for Jehovah’s Witnesses covering (Plymouth) Derriford and Royal Cornwall (Truro) hospitals he assists both medical professionals and witness patients in the pursuit of transfusion alternatives. He is a regular advocate for the use of advance medical directives, and lectures on issues of consent involving both adults and children.He lives with his wife and family in Cornwall.

THE AUTHOR

Those closest to the victim may find themselves overwhelmed with grief and disbelief. The deep sense of loss may be so great it can seem impossible to grasp. Strangers begin to appear, each one acting in some official capacity. If this has been your experience you might feel as though your own life has suddenly been invaded while those enquiries take centre-stage. Few of us are prepared or equipped for such a bewildering scenario. When this happens, you still need your voice to be heard. You may have your own questions. You will probably need professional guidance to direct them to the right people and get some answers.

This guide has been created to assist those unfortunate enough to have lost a loved one as a result of a fatal accident or work-related illness. Please help yourself to a copy.

THE LAWThere is sometimes an overlap between legal processes. When loss of life occurs, three distinct areas of law frequently coincide.

Most of us are familiar with the roles the Police and Crown Prosecution Service play investigating whether a crime has been committed. In accidents which relate to the workplace, the Health and Safety Executive may also investigate breaches of criminal law. Where a breach is identified, a prosecution is likely to follow and may lead to a criminal conviction. However, this does not greatly assist the victim - or the victim’s family.

In England and Wales there is also something known as coronial law, which is where a Coroner investigates and may hold an Inquest. This is an important function and Coroners take their role seriously. By their investigations and findings many future deaths may be prevented.


WHEN TRAGEDY STRIKES

In cases which result in loss of life it is highly likely that this was caused in some way by an act (or failure to act) on the part of someone. Occasionally this could be down to an oversight by the person who has died. More frequently than not, one or more persons or organisations will have been involved. So even if no crime can be established, the victim and anyone who depends upon him or her will often have a separate right to pursue a claim in civil law, where the burden of proof is much lower (a crime must be proven “beyond reasonable doubt”, whereas the civil threshold is much lower – “the balance of probabilities” – or “more likely than not”).

Unlike investigations by the Coroner, the Police or the Health and Safety Executive which are automatically triggered, no civil law process happens unless or until you trigger it. Although this is the case, civil law is important because it is the means by which the victim or the dependants of the victim receive any legal redress or compensation for their loss. This includes (but is not limited to) loss of financial support (income, including pensions) and the activities which contributed to the running of the household and were usually performed by the person who has died.

You can bring a civil claim yourself, although most people choose to instruct a lawyer (often on a no-win-no-fee basis) in order to increase their prospects of success and for advice on what to include (see sections 2, 3 and 4).



PUT SIMPLY:The Police (and sometimes the Health and Safety Executive) will investigate if a crime has been committed.

The Coroner is under a duty to investigate any violent, unnatural, sudden or unexplained death. He or she has the power to issue reports to prevent future deaths.

Family members and other dependants may be entitled to be compensated for lost financial support and other services. They must do so using civil law.


THE CORONER The Coroner is an Independent Judicial Officer and is usually a qualified and experienced lawyer or medical practitioner. The Coroner is required to investigate and (in many cases) adjudicate upon sudden or unexplained deaths. Sometimes the rules require that a jury adjudicates. What is being judged? Who died, where, when and how. The hearing which is held to determine these matters is known as an Inquest. The Coroner must see that the statutory legislation, Coroners’ Rules and Human Rights obligations which exist in English and European law are upheld and applied. Importantly, the Coroner cannot apportion blame.

A WORD ABOUT EVIDENCEWhere the Police are involved, they will conduct the primary investigation. Most of the physical records and any items of physical evidence are retained by the Police until a final decision is reached on whether to prosecute, but once this has taken place, they will advise the Coroner. Often this is the first opportunity for the family to find out what actually happened.

When lawyers are involved at this stage of the process they will prepare detailed submissions and requests for disclosure so that they can help you to prepare effectively for the Inquest and consider relevant questions for any witnesses.

1. THE INQUEST PROCESS

THE PROCESSThe Coroner has considerable discretion over what is deemed necessary and appropriate in each case. It may be determined that no Inquest is required at all (for example if a successful criminal prosecution has led to a conviction and has identified the cause).

Who can ask questions? What questions will a jury consider? What is the scope of the Inquest? Will the Human Rights Act apply? The Coroner will decide these issues but may seek representations from persons (or lawyers acting for persons or organisations) closely connected with the case - known as “Interested Persons” - to consider the relevant legal duties and obligations before reaching any conclusion. This will include the lawyer for the family if one has been appointed.

The steps identified in the following chart are, broadly speaking, an explanation of the sequence which might apply. However, each case is unique.



CORONER OPENS INQUEST

Post Mortem examination conducted if required

Considers disclosure, scope, need for a jury, witnesses, etc

Body released for burial or cremation

Preparation for Inquest

Assess potential criminal proceedings

Conclusion as to cause of death

INTERIM DEATH CERTIFICATE ISSUED

OFFICIAL INVESTIGATION

CORONER CONDUCTS PRE-INQUEST REVIEW

DISCLOSURE OF STATEMENTS AND EVIDENCE

INQUEST

In the absence of a clear understanding of the cause of death:


Three frequently asked questions are:

• Do I actually need a lawyer at all?• If so, when should I make the initial approach?• How can I find someone with the appropriate

expertise?

But before we address these questions, let’s turn our attention to the ‘elephant in the room’:

“Lawyers can be expensive, and I just don’t have those resources.”

It is true. Lawyers can be expensive, and in the majority of cases a family simply does not have those sorts of funds. However, for reasons we shall explore in the following section of this Guide, that should not (and must not) become a barrier to accessing justice.

DO I NEED A LAWYER?Most accidents and injuries are avoidable. This is also true of fatal accidents, and the lessons learned from fatalities are among the most important society can learn. Nevertheless, by our nature, we humans can find it difficult to accept that we are

responsible for an oversight or have committed an error. This must especially be the case where some error or oversight has led to loss of life. So, for those involved in the events surrounding our loved ones’ death, this may be a very awkward situation.

Consequently, we cannot rely upon parties who may have been responsible or in oversight to present to us the complete picture. They will have their own legal advisers, operating in an environment with which they are very familiar. Their function is where possible to escape liability and, if they cannot, to minimize any award. By contrast the family finds itself in an alien environment, lacking sufficient knowledge of the process, and probably functioning well below capacity in view of their grief.

The reality is that in order to achieve a level playing field some legal expertise on your side is probably going to be a great help in two vital areas:

1. Winning the case2. Understanding your entitlement and ensuring

you recover a complete award

2. WHEN WILL I NEED A LAWYER


WHEN SHOULD I MAKE THE INITIAL APPROACH?With these two areas in mind: the sooner the better. Some may be inclined to put this off on the basis that they want to “get the Inquest out of the way first”. However, the process itself is an important means of gathering information which may be highly relevant in future legal proceedings. Therefore, most lawyers are keen to be consulted well in advance of any Inquest and, preferably, before any Pre-Inquest Review hearings have taken place. This enables them to review the list of witnesses, seek disclosure of relevant documentation and then follow up with additional requests as more information comes to light. This helps to ‘shape’ the direction of the Inquest so that points which are important to you are more likely to be considered and given adequate attention.


HOW CAN I GET THE RIGHT LAWYER?Nowadays the law is a populated by specialists. Gone are the days where the solicitor who helped you purchase your house will also draft your will and then handle the problem with the neighbours’ collapsed wall in your garden.

So you will want someone who is familiar with fatal accident law and the Coronial process. That will mean more than simply approaching a personal injury lawyer. You ought to be looking for an independently accredited expert. There is now an excellent online resource for the public on

the APIL (Association of Personal Injury Lawyers) website which lists those who specialise in handling fatal accident cases: (https://www.apil.org.uk/injury-lawyers/fatal-accident-lawyer). Just look for this Accredited Fatal Accident Specialist logo below. (see also the Contacts section on page 2 of this guide.)


3. WHAT WILL IT COST?

LEGAL EXPENSE POLICIESIt is possible that you will already have an insurance policy to cover these costs. In many cases this will underwrite the entire cost of the legal process. These policies can be attached to your home insurance, a motor policy, or even a credit card. The lawyer can make these enquiries for you.

If you have a valid policy, it may not be necessary to have a no win, no fee agreement.

NO WIN, NO FEE Fatal accident specialist lawyers frequently conduct cases on a no win, no fee basis, (the formal name for which is as a ‘conditional fee agreement’).The advantage is that there is no upfront cost for you. It means that the lawyer can be involved at the early stages and may be able to assist you in dealings with the Coroner. This generally contributes to a better outcome in subsequent civil proceedings.

The general rule under the English legal system is that your legal costs are paid by the losing party on top of, and in addition to, any award of compensation you receive.

Any contribution which you may have to make towards your legal fees is therefore only payable after you have secured compensation. Deductions from your award are capped at 25 per cent by law and in many cases the deduction is less than this. And if the claim did not succeed, you pay nothing.

THE BOTTOM LINE:

With a no win, no fee agreement, you can pursue a claim for compensation without taking a financial risk.


BEREAVEMENT AWARDSSome people may be entitled to a fixed statutory bereavement award. This is currently £12,980.00. At the moment, this award is only payable to someone who is bereaved of their husband, wife or civil partner or to the parents of a child who has died under the age of 18. Your solicitor can tell you if you are eligible for this award.

DEPENDENCY CLAIMS In certain circumstances, people who were financially reliant (or who had an expectation of becoming dependent) upon a person who has died can claim for the loss of that financial support. This is called a financial dependency claim. The amount that can be claimed is not fixed. It depends on the amount of financial support provided by the person who has died and how that would have continued in the future. Loss of financial dependency will be worked out according to the income - earnings and pensions, past and future - for the person who has died. The income of others and any anticipated changes if the deceased had not died will all be factored in.

A loss of services dependency claim can also be presented and might include loss of the value of childcare, DIY, or other domestic jobs or chores which were undertaken by a person who has died.

4. WHAT CAN I CLAIM?

EXAMPLES OF LOSSES:

• A statutory bereavement award – currently fixed at £12,980.

• Claims for pain, suffering and loss of amenity during the period before death.

• Other expenses such as travel, damage to personal possessions/property, etc.

• Funeral and some associated expenses.

• Past and future loss of financial dependency.

• Past and future loss of the value of services provided.

• Claims for psychological injury suffered by survivors of the accident/aftermath.


5. WORKPLACE ACCIDENTS

Employers have a duty of care to their employees and should assess risks in the workplace to keep the risk of injury to an absolute minimum. Any equipment provided to workers to carry out their job should be fit for purpose and employers should ensure that they have provided the correct training so that their work can be carried out safely. So, when a fatality has occurred in the workplace, it is highly probable that at least one of these duties has been ignored.

WHO WAS RESPONSIBLE?The modern work environment is complicated. The company may sub-contract certain activities to others or send workers to the premises of another company. Therefore, it is not unusual for more than one organisation to be involved when a death occurs within a workplace. Multiple parties could become involved in the Inquest and subsequent civil proceedings, each of whom will, in turn, have separate legal representation.

HEALTH AND SAFETY EXECUTIVEThe HSE is required to investigate every serious or fatal accident in the workplace. In cooperation with the Police, the HSE Inspector will seize and examine physical evidence, interview witnesses, obtain relevant records, and draw upon relevant expertise to produce reports.

If the HSE considers there has been a breach of health and safety law which carries criminal sanctions, they may bring a prosecution against an employer which leads to a conviction and usually a substantial fine.


Although not strictly “accidents”, many deaths in the workplace are nonetheless attributable to conditions which occur because an employer has failed to discharge the duty of care toward the workforce. Asbestos related illness is one such example.

The people most at risk are those that have handled asbestos in their jobs but there have also been cases where an asbestos related illness occurs in a family member of the person that worked with or came into contact with asbestos. In these cases, asbestos fibres were inhaled from contaminated clothing. Exposure to asbestos can lead to a variety of adverse health conditions including mesothelioma, lung cancer, asbestosis and pleural thickening. These illnesses can often arise many years after contact with asbestos.

EMPLOYERSActions frequently involve the Ministry of Defence, British Rail, power stations, ship repair yards and for those employed as plumbers, carpenters, electricians and in the construction industry. Don’t be put off if an employer has since ceased trading. A specialist lawyer will usually be able to trace the insurer accountable for that employer at the time of the exposure.

EXPERTISEThis remains a complicated area of law and it is important that a suitable legal specialist is appointed to help guide you through this difficult time. The APIL website (referred to in Section 2 above) includes a list of lawyers who are Accredited Asbestos Disease Specialists. Look for this Accredited Asbestos Disease Specialist logo. (see also the Contacts section on page 2 of this guide.)

6. ASBESTOS RELATED ILLNESS

REMEMBER:

Exposure may have been direct or indirect.

Symptoms may develop decades after the exposure.

Employers may cease trading, but it is often still possible to locate their Insurance Company.


7. ON THE ROAD

Accidents occur on the roads in a variety of different ways. Some of us are drivers, others are passengers or pedestrians. Cars, coaches, buses, lorries, cycles, motorcycles and animals all use the roads. Different rules exist for different users. Many are insured, but some are not.

UNINSURED DRIVERS AND HIT AND RUN CLAIMSIt is estimated that there are over one million uninsured vehicles on the UK’s roads. Sadly, it is all too common to be the victim of an uninsured driver. Your loved one might also be the victim of a hit and run collision where the blameworthy driver has left the scene and cannot be traced.

Thankfully, the Motor Insurers’ Bureau (MIB) acts as a “safety net” and deals with applications brought by (or on behalf of) those who are victims of both Uninsured and Untraced drivers.

DO I NEED TO USE MY CAR INSURANCE COMPANY’S CHOICE OF LAWYER?If the victim was the driver of, or passenger in, a vehicle involved in a road accident, you may have already been contacted by a solicitor instructed by an Insurance company. Many people are under the impression that they must use the Insurance company’s choice of solicitor, but this is not the case. You are free to choose your own lawyer and even if you have already accepted representation by the Insurance company’s choice, you are free to change representation at any time.

If you have not yet chosen or are concerned with the service you have received to date you should seek out an APIL Accredited Fatal Accident Specialist (refer to Section 2 of this Guide). The Motor Accident Solicitors’ Society is also a good indicator of expertise.


CCSS The Coroners’ Courts Support ServiceA registered charity which offers support practically and emotionally to the family and other witnesses attending the Coroners’ Courts.coronerscourtssupportservice.org.uk

INQUESTA registered charity providing expertise on state related deaths and their investigation.www.inquest.org.uk

CRUSEA registered charity and network offering support, advice and information when someone dies. www.cruse.org.uk

APIL The Association of Personal Injury Lawyers A not-for-profit organisation of lawyers and associated professionals which campaigns for protecting and enhancing access to justice, promoting and developing expertise in the practise of personal injury law, for the benefit of victims and injured people.www.apil.org.uk

MASS The Motor Accident Solicitors’ SocietyA not-for-profit membership organisation of lawyers promoting standards of legal services, for the benefit of victims of road traffic accidents.www.mass.org.uk

BRAKE A road safety charity working to prevent tragedies and support people left bereaved and injured. www.brake.org.uk

MAKE A CALLPolicy varies from firm to firm. The firm which produces this Guide (see Contact page for details) encourages initial enquiries by offering an informal consultation entirely without cost or obligation. The idea is simply this: “Let’s just talk”.

WHAT DO I NEED?Here is a short list of useful information to have on hand. It is not essential, but you may find it helps:

• The full name of the person who has died• Their date of birth and date of death• Where they died

• A Will (if available)• Briefly, the circumstances as you understand

them• Any contact information and references you

have received from the Police, the Coroner, the HSE (or similar organisations)

• Your own contact details (address, telephone and email)

If you have any concerns or questions, don’t hesitate to raise them. This may seem like unchartered territory, but remember, we are here to help you.

GETTING STARTED

OTHER RESOURCESThe following organisations are worth knowing about for advice and support in these situations:

WRONG TIME WRONG PLACE

Not every loss of life takes place on a road or in connection with a workplace. But far too many do. For others it is nothing more than a tragic case of bad timing: the author of this Guide has been personally consulted in cases involving loss of life from floods, landslides, gas explosions and electrocutions. Some have simply been walking across a field or along a pavement. Or asleep in their own bed. They affect all ages: from very young children to the elderly; they befall people of all races, genders and social classes.

One thing they all seem to have in common is that they were just in the wrong place, at the wrong moment. And the effects are utterly devastating.

Each loss is unique: each person’s contribution to society and their own family life is irreplaceable, so what may seem inconsequential to one family will be extremely important to another. What this means is that the assessment of each loss is also unique. It requires patience, understanding, experience and, above all, empathy.

This Guide is designed to help you navigate a course through the legal waters surrounding you following the death of a loved one, and to help you access the appropriate expertise to do so successfully.

PLEASE HELP YOURSELF TO A COPY

Main Office60-66 North Hill, Plymouth, PL4 8EPT: 01752 663295F: 01752 672021E: [email protected]

Plymstock Office7 Radford Park Road, Plymstock, Plymouth,PL9 9DGT: 01752 401515 F: 01752 401091E: [email protected]

Plympton Office85-89 Ridgeway, Plympton, PL7 2AAT: 01752 345311F: 01752 342360E: [email protected]

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LEGAL SUPPORT IN FATAL ACCIDENTS€¦ · you purchase your house will also draft your will and then...

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