Thursday, 14 November 2013
No abuse of process by claimant where Coroner’s office advises disposal of post mortem samples
The outcome of this particular decision runs against the general tide due to exonerating circumstances peculiar to the case, which included the Coroner’s office providing misleading information. It should be seen as an exception; not the rule.
It is vital to ensure that in a fatal industrial disease claim that all relevant post mortem evidence is preserved, both documentary and real evidence such as tissue samples. There have been two recent first instance decisions where a failure to preserve such evidence resulted in the claim being struck out: Weaver (Widow & Personal Representative of Harry L Weaver, deceased) v Contract Services Division Ltd considered  (unreported decision of the Senior Master, 03.09.2009) and Irene May Currie v Rio Tinto Plc and others  (unreported decision of Master Eastman, 06.10.2010).
In Matthews, Swift J concluded her judgment with the following postscript:
‘I propose to send a copy of this judgment to the Chief Coroner with a request that he considers advising all Coroners that, in cases where there has been a verdict that a contributory cause of death was industrial disease, any communication to the deceased’s family about the disposal of histological samples should contain advice that, if a claim in respect of the deceased’s death is pending, they should consult their solicitor before giving authority for disposal.
In the light of what has happened in this case, it would be good practice also for solicitors instructed by claimants in fatal asbestos claims to advise both their clients and the relevant Coroner’s Office that disposal of histological samples should not be undertaken without confirmation from those solicitors that the samples are not required for the purposes of the claim.’
Whilst it is to be hoped that in future Coroner’s officers will be better informed about the need to preserve tissue samples in this kind of case, practitioners would be wise not take any chances.
A more detailed commentary is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.