One job that can come the way of a safety professional is dealing or assisting with personal injury claims, whether from employees, contractors or members of the public who have been harmed in connection with the organisation’s business.
It will include responding to requests for documents from the organisation’s insurer or from the liability adjuster or solicitors, so that they can deal with ‘disclosure’ to the claimant’s legal representatives.
This can often seem a challenging task, particularly if the safety professional is unfamiliar with the legal process and what is required.
What is disclosure?
‘Disclosure’ is the term given to the stage in the litigation process when each party is required to inform the other side of the existence of all ‘disclosable’ documents (namely, those relevant to the claim) that are or have been in its possession or control. This means a document physically in the party’s possession, or something it has a right to possess or inspect. Disclosure applies to documents on which your organisation will rely in the case, and those that adversely affect its case or supports that of the claimant.
Personal injury claims are subject to a pre-action protocol. Under this, the claimant’s representatives must send a letter of claim (which should be passed to the organisation’s insurer as soon as it is received), setting out the documents required if liability is denied.
If proceedings are issued, there is a stage at which the lawyers for each party will need to prepare a ‘list of documents’ detailing those documents that its client has and those over which it no longer has control. The list must also confirm that a reasonable and proportionate search has been made for them. The duty to disclose continues until the end of the proceedings. Therefore, if a disclosable document comes to your notice at any time during the proceedings, it should be brought to the attention of the lawyers acting for your organisation, so that it can be disclosed to the other side. Once the list of documents has been sent, the other side has a right to inspect them. Usually, this will be dealt with by copies of the requested documents being sent by the organisation’s lawyers to the claimant’s solicitors.
Sometimes, the claimant’s lawyers will apply for documents before issuing proceedings, in what is known as a ‘pre-action disclosure application’. This occurs when the prospective claimant needs to see the organisation’s information to decide whether to press ahead. These types of applications are more common in industrial disease cases, such as noise-induced hearing loss claims. The application will usually follow on from correspondence between the claimant’s lawyers and the insurers which the organisation may be unaware of, so receiving the application may come as a surprise. When received, it should be passed immediately to the insurer or its lawyers.
What is a document?
A document is anything that contains information. Therefore, a document is not just a piece of paper but includes emails, texts, digital documents, photographs, video clips and CCTV.
The limitation period for bringing a personal injury claim is three years (although in some circumstances it can be longer, such as in a disease claim when the start of the limitation period will be active from the date of knowledge that the condition was work-related). It follows that letters of claim might not be received for many months, or even years, after the incident. In that time, the workplace and the working procedures may have changed. It is important, then, that if there is an incident on which a claim might be made, as much information is obtained as early as possible and documents retained. It is also important to ensure that any routine destruction of documents that might be relevant is stopped. This includes the routine deletion of computer records, especially emails, or the wiping of CCTV evidence.
Parties are not required to disclose privileged documents. Broadly these come into existence for:
- the purposes of giving or obtaining legal advice – for example, correspondence between solicitors and their clients; and
- the predominant purpose of bringing or defending actual or potential litigation (criminal or civil), for example, particularly if there is the potential for a prosecution in the UK by the Health and Safety Executive (HSE), the organisation’s internal accident investigation may be made subject to professional legal privilege, under which the external lawyer has requested and given instructions for the investigation so that they can advise the organisation.
Documents that commonly form part of the disclosure as part of a workplace accident claim include:
- the accident-book entry
- other entries in the accident book that relate to similar incidents
- reports made to the HSE under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR)
- the first-aider’s report
- relevant risk assessments (pursuant to reg 3 of the Management of Health and Safety at Work Regulations 1999 or specific regulations, such as reg 6 of the Control of Substances Hazardous to Health Regulations 2002) and post-incident risk assessments
- relevant method statements and safe systems of work, and any amendments made after the incident
- copies of relevant CCTV footage, photographs or video clips
- if machinery or work equipment is involved, manufacturer’s specifications, the operation manual, instructions and maintenance records
- documents relating to safety equipment and personal protective equipment
- documents relating to the repair of work equipment or premises, if relevant
- copies of relevant minutes of meetings of the organisation’s health and safety committee
- training records of the claimant
- personnel and occupational health records of the claimant
- back-to-work interview notes and report
- the internal accident investigation report (disclosable unless it is subject to legal professional privilege).
Organisations are often anxious about data protection and the fear of breaching data management obligations under the General Data Protection Regulations (GDPR) and the Data Protection Act 2018 (DPA). The DPA defines ‘personal data’ as information about a living person from which they could be identified. ‘Processing’ data includes recording, analysing and disclosing it. Some personal data, such as medical records, is classed as ‘special category’.
Processing personal data will be lawful if the individual consents or if it is deemed ‘necessary’ under one of the provisions set out in the GDPR, such as to comply with a legal obligation. Special category documents have further conditions that must be satisfied. If the disclosure is not covered by the lawful processing conditions, there are exceptional circumstances when the GDPR conditions do not apply. These include when disclosure is necessary: for, or in connection with, legal proceedings; to obtain legal advice; and to establish, exercise or defend legal rights.
There are some situations in which compliance with GDPR can be achieved by redaction. The list of attendees and their signatures to a toolbox talk, for example, could be blanked out except for the claimant’s name and signature.
Use of documents
Information derived from documents provided through the disclosure process must be used only in the court proceedings. Misuse could be contempt of court, for which a fine or even imprisonment might follow.
It should also be noted that documents obtained through other legal proceedings cannot be used in the litigation without the permission of the court that has jurisdiction over those other proceedings. Examples include an employment tribunal, or an inquest before a coroner if the matter involves a workplace death.
If in doubt, ask
Disclosure can be a complex area, particularly in terms of what documents may be relevant, and of GDPR issues. If there is any doubt, legal advice should be sought from the lawyers acting for the organisation in the claim. There can also be tensions in respect of disclosure if, alongside the personal injury claim, an HSE criminal investigation is under way. In those circumstances, it is important that the respective legal teams dealing with the civil and criminal litigation liaise.