iosh Magazine : Article by Charlotte Waters

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.

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Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960.