At our March claims club we covered a number of topics including: - the Enterprise and Regulatory Reform Act (ERRA) 2013 - how to deal with stress in the workplace both in terms of civil claims and claims in the employment tribunal - advice on dealing with HM Coroner. View further resources and training on our website - https://www.brownejacobson.com/insurance

1. Claims club
May 2018, Exeter

2. Mental Health Issues in the Workplace
Personal Injury and Employment
Angela Williams, Associate
Rachel Billen, Associate
15 May 2018

3. How do you define stress?
• 12.5 million working days were lost due to stress last
year
• HSE definition: “the adverse reaction people have to
excessive pressure or other demands placed on
them”
• Depends on the individual
• 526,000 workers suffering stress

4. Who Isn’t Stressed?
Good stress / bad stress
HSE figures
5 million people feel very or extremely stressed by work
Half a million people experience work-related stress which they
believe makes them ill

5. Higher risk occupations
• Nursing and social work (welfare occupations)
• Defence
• Education
“Teaching is among the most stressful
jobs you can do”

6. Employer’s duties
• General duty to ensure the safety and health of employees
• Common law duty to keep employees safe from harm and to
provide a safe place of work
Health & Safety at Work Act 1974
• Mutual trust and confidence

7. Stress in the Courts
Walker v Northumberland (1995)
• Social worker
• First breakdown 1986 off 3 months
• Second breakdown – liable for second
breakdown
• First case where psychiatric damage was
awarded

8. Hatton v Sutherland (2002)
Four Claims inc Barber and Hatton
Court of Appeal allowed all appeals except Jones
1. Duty of care
2. Foreseeability of psychiatric harm
3. Breach of duty
4. Causation of injury
“Some things are no one’s fault”

9. The Approach in Hatton
Guidance via 16 principles
• Signs of impending harm
• Entitled to take what you are told at face value
• Indications of harm must be plain enough
• Only have to take REASONABLE steps
• Size of organisation, resources and demands upon it
• Only take steps likely to do some good

10. Hartman v South Essex MH NHS Trust
• No occupations are higher risk
• No foreseeability despite complaints of
understaffing
• Counselling service
• Act on your own policies and
recommendations

11. Claims: What is the cost?
• Barber v Somerset County Council (2003)
£101,000 for a teacher
• Hatton v Sutherland (2002) £91,000 for a
teacher
• O’Brien v Bolton St Catherine’s Academy
(2017)

12. Impact: Thriving at Work (October 2017)
• 300,000 people with long term mental health problems lose
their jobs each year
• 15% of people at work exhibit symptoms of existing mental
health conditions
• Cost to employers of between £33 & £43 billion per year

13. Thriving at Work: Findings
When poor mental health needs management
• Long term absence
• Short term intermittent absence
• Underperformance
• Misconduct
• Presenteeism
• Impact on others

14. Managing Absences
How could a mental health condition appear on a sick
note?
Basic principles
• Principle 1: Establishing the Medical Position
• Principle 2: Consultation
• Principle 3: Alternative Employment

15. Underperformance & Misconduct
• Refusal to take time off
• Poor performance
• Poor behaviour
• Impact on capability & disciplinary procedures

16. Employment Tribunals
• If the employment relationship was terminated as a result of the
employee’s incapacity, the employee could bring a claim for
unfair dismissal
• If the employee resigns as a result of the stress they are feeling at
work, it may amount to constructive dismissal
• If a mental health condition was prolonged, it could meet the
definition of disability under the Equality Act

17. Unfair Dismissal
• Unfair dismissal
• Constructive dismissal
• Breach of contract / wrongful dismissal
• Alternatives

18. Disability Discrimination
• Meaning of disability
• Reasonable adjustments

19. The law on reasonable adjustments
• Duty only arises where an employee is disabled for Equality Act
purposes
• BUT.. the reasonable employer
• Ignorance is not always an excuse
• Are they at a substantial disadvantage?
• What is a reasonable adjustment?

20. Practical Steps – Personal Injury & Employment
• Break the culture
• Give employees/applicants a chance to disclose
• Look at unusual levels of sickness
• Make Occupational Health referrals and follow advice
• Hold return to work interviews and carry out the actions

21. Practical Steps – Personal Injury & Employment
• Think about other sources of medical information
• Keep records
• Hold appraisals
• Provide a counselling service
• Think about getting external help with adjustments
• Apply HSE guidance

22. Find out more
www.brownejacobson.com

23. Talk to us
Rachel Billen | 01392 458737 | rachel.billen@brownejacobson.com
Angela Williams | 01392 458720 | angela.williams@brownejacobson.com
Please note
The information contained in these notes is based on the position at January
2018. It does, of course, only represent a summary of the subject matter covered
and is not intended to be a substitute for detailed advice. If you would like to
discuss any of the matters covered in further detail, our team would be happy to
do so.
© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liability
partnership.

24. Inquests & Serious Case Reviews
Nigel Lyons, Partner
Dale Collins, Partner
15 May 2018

25. What will we cover

26. 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
• Governing Legislation
– Coroners (Inquest) Rules 2013
– Coroners (Investigations) Regulations 2013
– Coroners and Justice Act 2009

27. 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

28. 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:
‐ Criminal liability on the part of a named person, or Civil liability
– Evidence can deal with issues relevant to fault / negligence so long as relevant
to exploring ‘how’ someone died

29. Types of Inquest
• ‘Jamieson’ Inquest
• ‘Middleton’ Inquest
There are some cases in which the
current regime for conducting
inquests… does not meet the
requirements of the Convention…
Only one change in our opinion is
needed: to interpret “how”… as
meaning not simply “by what means”
but “by what means and in what
circumstances.”
R v Middleton (2004)

30. 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))

31. Evidence

32. 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

33. When does a Coroner sit with a Jury?
Coroners & Justice Act 2009 (Part 1, s.7)
• s.7(1) Default Position: Inquest must be held without a jury
‐ Default position
‐ Not about reasons not to do so
• s.7(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 an 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

34. When does a Coroner sit with a Jury?
Coroners & Justice Act 2009 (Part 1, s.7)
• s.7(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

35. 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

36. 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

37. Safeguarding adults /Serious case reviews
A Safeguarding Adults Review (SAR) is a process for all partner
agencies to identify the lessons that can be learned from
particularly complex or serious safeguarding adults cases,
where an adult in vulnerable circumstances has died or been
seriously injured and abuse or neglect has been suspected.
A serious case review (SCR) takes place after a child dies or is
seriously injured and abuse or neglect is thought to be
involved. It looks at lessons that can help prevent similar
incidents from happening in the future.

38. Safeguarding adults /Serious case reviews
– Local Safeguarding Adults Boards follow national guidance on criteria for
holding a SAR.
– The SAR Panel considers referrals for SAR’s and makes recommendations to the
independent Chair of the Board on whether a SAR should be held or if other
steps can be taken to respond to the issues that a case has raised.
– Local Safeguarding Children Boards (LSCB) follow statutory guidance for
conducting a SCR in the event of a relevant death.
– Rule 8 of the Coroners (Inquest) Rules 2013, Coroners required to complete an
inquest within 6 months of the date on which the Coroner is made aware of
the death, or as soon as is reasonably practicable.
– Coroner likely to wait until SCR completed until full hearing is set.

39. Safeguarding adults /Serious case reviews
For SAR
• A Review Panel draft terms of reference for the SAR.
• Each agency involved in the case, arranges for an Individual Management
Review (IMR) to be carried out by a manager independent of the case.
• The IMR reviews the agencies involvement and actions in the case.
• Addresses terms of reference based on a set format including a
chronology, a review of recorded information and interviews with the key
people involved.

40. Safeguarding adults /Serious case reviews
An IMR writer is skilled /experienced manager from the agency or an independent
person commissioned by the individual agency.
The completed IMRs given to the panel and to an independent Overview Report Writer
to produce an overview report and a draft summary report, including
recommendations on actions or changes needed.
The overview report and draft summary report presented to the Safeguarding Adults
Review Panel. The panel reviews the report and recommended actions.
These are presented to the Safeguarding Adults Board to agree the proposed actions
needed. It then monitors the implementation of these actions with the help of the
Safeguarding Adults Review Panel. The summary report is published and made
available to the public.

41. Safeguarding adults /Serious case reviews
For an SCR the decision to conduct a review for a child should be made
within one month of the notification of the death.
The LSCB must notify the National Panel of Independent Experts and
Ofsted of this decision.
The LSCB should appoint one or more reviewers to lead the SCR.
For the review process, the LSCB should make sure there is appropriate
representation of the different organisations involved with the child.
The LSCB should aim to complete an SCR within 6 months.

42. Safeguarding adults /Serious case reviews
Publishing the findings
The final SCR report, and the LSCBs response to the findings must be
published on the LSCB website for a minimum of 12 months and should be
available on request.
Important for sharing lessons learnt and good practice in writing and
publishing SCRs.
SCR reports should be written in such a way that publication will not be
likely to harm the welfare of any children or vulnerable adults involved in
the case

43. Before the Inquest
Back to the Inquest process practicalities;
• 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.

44. The Inquest
• Generally, witnesses may sit through the whole hearing
• Ensure witness needs dealt with/ access/ hearing loop/ signing
• Coroner will call witnesses in chronological order
• Evidence on oath or affirmation
• Questions: By coroner/The family or their lawyer/Other “interested parties/
witness lawyer

45. The Inquest (2)
• Arrive at the Coroner’s Court in good time
• Dress smartly.
• Witnesses may take their own copy of their statement to the stand if they
wish
• Be supportive of your colleagues and all other staff

46. Other linked Investigations
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 & 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

47. Other linked Investigations
• 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
• Coroner also has a general power to suspend where it appears reasonable
to do so

48. Short Form Conclusions

49. Short Form Conclusions
• Natural Causes
– The result of a natural disease process – see ex parte Benton (CA)
– 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 /Misadventure/Road Traffic Collisions
‐ 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)

50. Short Form Conclusions
• 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
• corporate manslaughter
• Criminal standard of proof – beyond all reasonable doubt
• Open
• Insufficient information for the Coroner to reach a conclusion

51. Long Form (Narrative) Conclusions
• Especially where short form verdict is inadequate
• Could be 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)/ non judgmental
• Vary in length:
factual paragraph(s) summarising what happened
… 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.
R v Middleton (2004)

52. When is a PFD Report issued?
• Preventing future deaths (PFD) 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)

53. PFD Reports: Fall Out
• 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

54. Inquests & subsequent claims
• 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

55. Inquests & subsequent claims
• Criminal proceedings
‐ Police
‐ HSE
• Used to test evidence by both potential defendant(s) and prosecution
• Used to identify strong/weak witnesses

56. What can you do to assist your case ?
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
Get early access to a raft of evidence the Coroner may have to enable an
early assessment on the strength of any civil claim
Ability to ‘test’ the evidence without the risk of any finding of fault and to
influence the decision on criminal prosecution before charges are brought

57. Find out more
www.brownejacobson.com

58. Talk to us
Nigel Lyons | 01392 458731 | nigel.lyons@brownejacobson.com
Dale Collins | 01392 458770 | dale.collins@brownejacobson.com
Please note
The information contained in these notes is based on the position at January
2018. It does, of course, only represent a summary of the subject matter covered
and is not intended to be a substitute for detailed advice. If you would like to
discuss any of the matters covered in further detail, our team would be happy to
do so.
© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liability
partnership.

59. All information correct at time of production.
The information and opinions expressed within this
document are no substitute for full legal advice. It is for
guidance only and illustrates the law as at the published
date. If in doubt, please telephone us on 0370 270 6000.
© Browne Jacobson LLP 2018 – The information contained
within this document is and shall remain the property of
Browne Jacobson. This document may not be reproduced
without the prior consent of Browne Jacobson.