RE MEDICAL DEFENCE UNION LTD.

Coroner - inquest - proper scope of inquiry - s.6 of the Coroners Ordinance, Cap.14, read with the Coroners Rules - judicial review - verdict not challenged but declaration sought regarding conduct of inquest - whether such declaration could properly be granted - whether criticisms that Coroner did not conduct inquest according to law sustainable.

Practice and procedure - costs - costs of judicial review proceedings awarded against Coroner in favour of applicants who were refused the only relief they had claimed (a declaration) - whether, on the facts, this was a proper exercise of discretion.

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal from the decision of Barnett, J. dated 15th February 1990 whereby he refused to grant the declaration sought by the two applicants by way of judicial review. There is a Respondent's Notice including a cross-appeal on the order for costs made by the judge.

2. The unsuccessful applicants who now appeal are Dr. Michael John Bascombe and the Medical Defence Union Ltd.

3. When Mr. Michael Thomas, Q.C., who appeared for the applicants concluded his submissions, we did not call upon Mr. Whaley who appears for the respondent. Mr. Thomas represented the applicants in the Court below but took no part in the inquest.

4. This is a brief account of the dreadful tragedy which led to the death of Mrs. Shirley Ann Boyde, a healthy a lady in her mid-50s. On 14th January 1989 she was admitted into the Canossa Hospital for an operation to reduce the fracture to one of her ankles. She had slipped and fallen on her way home after work on Christmas Eve. The operation began in Theatre No.3 at 12:30 p.m. There were two surgeons, and the anaesthetist was Dr. Bascombe. Mrs. Boyde was anaesthetised. She had been connected to a "Datex" machine which could measure her blood pressure and also give ECG readings. The machine could also measure the percentage of oxygen flowing through the anaesthetic machine, but that part of the machine was not connected. Mrs. Boyde was also connected to another machine (an oximeter) which measures the oxygen saturation of the blood.

5. After Mrs. Boyde had been anaesthetised, the surgeons tried to treat her without opening her foot up, but manipulation was not successful. A decision was made to operate.  It was soon noticed that Mrs. Boyde had turned a bluish colour, which is a sure sign of oxygen deprivation. The machine to which she was connected showed an unsuccessful blood pressure  reading and when he saw that Dr. Bascombe thought that she had cardiac arrest and that her heart had stopped beating, and so he and the two surgeons tried to revive her. She was given external heart massage and medicines to try to get the heart pumping again, Dr. Bascombe administered to her what he thought was 100% oxygen. However, her condition remained critical and there was no sign of improvement. The blue colour remained and the normal pink colour of her skin did not return. A cardiologist was called and intensive resuscitation attempts continued on the basis that Mrs. Boyde had suffered a heart attack. But her condition continued to show no improvement at all.

6. At about 1:15 p.m. while the efforts to save Mrs. Boyde's life were going on, another operation had begun in Theatre No.2 at the hospital, which is immediately next door to Theatre No.3. A lady was about to undergo a hysterectomy. Within a couple of minutes or so after she had been anaesthetised, the anaesthetist noticed that her face was turning blue, an obvious sign of oxygen deprivation. He immediately administered what he thought, was 100% oxygen. This had no effect on her - the blueness remained, so he then considered that there might be a problem with the central oxygen supply (which served both theatres) so he disconnected the supply to that lady and blew into the tube. Immediately her condition improved and she began to turn pink. He then connected her to the emergency oxygen cylinder which was present in the theatre. There was one in Theatre No.3 too. As soon as he did that, she once again continued to improve, she returned to normal, the operation continued and was a success. She is alive and well today.

7. It became obvious to everyone in Theatre No.2 that there was something terribly wrong with the central oxygen supply. The sister from that theatre rushed into the theatre next door and immediately disconnected the tube which was pumping what was thought to be oxygen into Mrs. Boyde, and put her on the emergency cylinder in that theatre. She immediately turned pink. But by that time, Mrs. Boyde had been deprived of oxygen for something over 45 minutes. That caused her irreparable harm, so that without regaining consciousness, she died on the afternoon of 17th January, some three days later, of cerebral anoxia.

8. As the Coroner mentioned in his summing up, there was evidence that there were two monitoring machines in Theatre No.3 and that if they had been used to their fullest extent, they would have given warning of what was happening and would probably have saved Mrs. Boyde's life. The gas analysis function of the Datex machine had not been switched on - this function was seldom used in anaesthetics in Hong Kong save when particular complications were anticipated. Dr. Bascombe had not used the oximeter before but if it had been programmed it would have measured the amount of oxygen in the blood, giving an oxygen saturation read out, as we have seen, and sounding a warning if the saturation fell below a certain level. It appears that Dr. Bascombe had not used this machine before. He had only briefly read the manual and did not fully understand its functions. On that occasion, sadly as it turned out, he intended to try it out during Mrs. Boyde's operation but not to utilise its monitoring function as such. This approach was quite usual in the "anaesthetic community" of Hong Kong at the time. The pulse oximeter did in fact sound a warning before Dr. Bascombe noticed the cardiac arrest, however it seems that Dr. Bascombe did not understand the machine's functions and he switched it off.

9. As the Coroner put it in his summing up:

10. Exercising jurisdiction under the Coroners Ordinance, Cap.l4 ("the Ordinance") one of the Hong Kong Coroners, Mr. H.M. Sinclair, held an inquiry, with a jury, into the death of Mrs. Boyde (the Ordinance does not use the word "inquest" but I use it hereafter for convenience) over 26 sitting days between 17th April and 2nd June 1989. The jury's verdict was: "Death due to wrong supply of gas to hospital." They added 12 "recommendations".

11. An affidavit which was before the judge gave him information about the Medical Defence Union Ltd. ("The MDU") explaining their interest and involvement in the matter. The MDU was formed in 1885 as a company limited by guarantee. It now has a membership of some 175,000 doctors and dentists who pay subscriptions. Most Hong Kong practitioners are members. The principal areas of operation of the MDU are Great Britain, Hong Kong, Australia and New Zealand. Each subscribing member has a contract with the MDU being constituted by the MDU's acceptance of an application for membership on the terms of its Memorandum and Articles.

12. The chief objects of the MDU are the conduct of legal proceedings on behalf of members, and giving advice on various professional technical matters. Under its Articles the MDU's Council way, in its discretion, undertake the conduct and defence of any matter or proceeding concerning a member's professional reputation or interests, and grant indemnity where necessary from its funds, although members do not have the benefit of a contract of insurance in the strict sense. However, the MDU meets damages and costs of legal proceedings in all cases unless there is some extraordinary reason why it should not, for example where the member is untruthful or fails to co-operate with the MDU. Consistent with this policy, the MDU has arranged and funded legal representation in a number of inquests conducted in Hong Kong in recent years where it is considered that there is a possibility of a result adverse to the reputation or interests of a particular member.

13. The affiant, a partner in the leading firm of solicitors who act for the MDU, goes on to say that in recent years a matter of particular concern to the MDU has been the number of inquests involving medical practitioners. Hong Kong Coroners had, he asserted, come to regard their function as inquiring, where there are fatalities connected with medical treatment, into whether the medical practitioner exercised a reasonable standard of medical care and attention according to the civil standard. In recent years this has been sought to be justified on the footing that such questions were potentially relevant to a "lack of care" verdict. This caused unnecessary distress to the medical practitioners involved for their medical treatment was often called into question and legal costs, often substantial, were needlessly incurred.

14. The judge was further informed that after the death of Mrs. Boyde, the Council of the MDU decided to provide legal representation for Dr. Bascombe at the anticipated inquest and Counsel was instructed to act for Dr. Bascombe at the inquest.

15. I now take up the narrative in the Statement filed pursuant to RSC O.53, r.3(2)(a). On 17th April 1989 (the day the inquest began) Counsel for Dr. Bascombe, instructed by the solicitors acting for the MDU, submitted that evidence called to inquire into the question whether negligent or inadequate medical treatment was administered to the deceased was not relevant to the issue of how, when and where the deceased came to her death. That was the extent of the Coroner's jurisdiction, and a verdict reflecting a determination upon such an issue would be likely to offend against Rule 30 of the Coroners' Rules.  It was also submitted that such an issue could not be explored without offending the rules of natural justice having regard to Rule 28 of the Coroners' Rules which prevented Counsel representing Dr. Bascombe from addressing the Coroner or the jury on any matters or fact.

16. The Coroner's ruling on that submission was as follows:

"If there is evidence which is relevant, which does disclose some fault, perhaps some cause which contributed to the death, then that evidence will be called ... [and that] the verdict of 'lack of care' or of accident suicide or what have you aggravated by lack of care, is a proper verdict in the circumstances where the evidence so allows."

Whereupon Counsel for Dr. Bascombe confirmed that he would participate in the proposed inquiry into the "negligence" issue on behalf of the doctor, but "under protest".

17. The Statement goes on to say that the Coroner then called and examined witnesses, and permitted other parties to examine witnesses on issues and matters which, it is said, were relevant only to the question whether or not Dr. Bascombe had exercised reasonable skill and care in his treatment of the deceased. The witnesses included Dr. Bascombe himself, Professor Teik Oh, Professor James Payne, Professor Ross Holland, Dr. Jean Allison and Dr. Joseph Chen Yin-chong.

18. The draftsman of the Statement summarised "the principal issues explored" in this ways:

19. The Statement then summarises the submissions on law made by Counsel on behalf of Dr. Bascombe after the conclusion of the evidence regarding the undesirability and inappropriateness, in the circumstances, of leaving to the jury the possibility of bringing in a verdict incorporating the concept of "lack of care", and states the Coroner's ruling on the submissions to the effect that he was minded to leave a "lack of care" verdict to the jury if, after considering the evidence, he found it should be left. There then follow two extracts from the Coroner's summing up - the first extract explains the relevance of the evidence given by the expert witnesses called to give their opinions on the treatment and care Mrs. Boyde had received while she was in the operating theatre, both to the reasonable standard of care and competence expected by the law of a physician and to any recommendations the jury might think fit to make after giving their verdict.

20. The second passage set out in the Statement is in these terms:

"As I say, before you can consider a verdict to which the words 'aggravated by lack of care' can be added, you must be in a position to be satisfied on a balance of probabilities that Mrs. Boyde would have survived if the care been otherwise than you may have found it to be .... since on that evidence you cannot be satisfied that the time available was sufficient for a reasonable doctor to disconnect the gas supply, thus allowing Mrs. Boyde to breathe 'God's own fresh air' as Professor Payne put it,  I am directing you that you cannot be satisfied on a balance of probabilities that Mrs. Boyde would necessarily have survived, even if the ventilating machine had been disconnected and an alternative method of ventilating the patient with air tried within four minutes of the cardiac arrest. It follows that the standard of care of Mrs. Boyde's treatment cannot be considered when framing your verdict. However, Members of the Jury, it can, and perhaps should, be considered carefully by you if you are minded to make recommendations. I say this because in other, albeit similar, circumstances, where a patient is reliant upon oxygen for life support the critical timings may well not be as confined as we now know they were in Mrs. Boyde's case."

21. In the Statement, the complaint is made that the "Coroner went on to review various aspects of the evidence, tacitly inviting the jury to make recommendations which might possibly (if not inevitably) be construed as criticisms of the handling of the case by Dr. Bascombe or other doctors involved." Two of the recommendations made by the jury are set out as being relevant to the question of medical treatment :

22. I think it is desirable to set out, verbatim, the rest of the operative part of the Statement, since it contains the gravamen of the complaints made by the applicants of the Coroner's handling of the inquest:

23. The applicants sought the following relief in the High Court:

24. I think it is convenient here to refer to those provisions of the principal and subsidiary legislation governing Coroners and inquests which seem to me to be relevant to the appeal before us. The current Coroners Ordinance, Cap.14, ("the Ordinance") was enacted in 1967 and has been amended number of times since then. The basic jurisdiction of a Coroner is contained in section 6(1) :

"6. (1) Whenever any person dies suddenly, or by accident or violence, or under suspicious circumstances, or whenever the dead body of any person is found within Hong Kong or is brought into Hong Kong, a coroner may, if he considers that an inquiry  is necessary, inquire into the cause of and the circumstances connected with the death of such person, may think fit, and may determine the cause of death."

25. Athough the Law Reform Commission of Hong Kong has recommended,  in a published Report (Topic 14), that a Coroner's power under section 16 to issue a warrant for the arrest and committal of persons to prison so that they may be prosecuted should be repealed, those provisions remain in force although we know that they are very seldom used.

26. Section 22 of the Ordinance gives the Chief Justice power to make rules, inter alias:

27. The present Coroners Rules ("the Rules") made under this enabling power came into force in 1969. Rule 12(1) states that any person who is, in the opinion of the Coroner, a properly interested person shall be entitled to examine any witness either in person or by counsel or solicitor. Rule 12(3) requires the Coroner to disallow any question which, in his opinion, is not relevant or is otherwise not a proper question. Rule 14 provides that no witness shall be obliged to answer any question if to do so would incriminate him, and that the Coroner has the duty of informing the witness of his right to refuse to answer any such question.

28. The next two Rules deal with the rights of someone whose conduct is likely to be called into question, in these terms:

29. Rules 23 and 24 deal with matters to be ascertained at an inquest and with the ambit of opinions which may be expressed and recommendations which may be made by a Coroner or the jury. They provide:

30. Rule 28 states that no person is allowed to address the Coroner or the jury as to the facts, and Rule 30 states:

"30.    No verdict shall be framed in such a way as to appear to determine any question of civil liability."

31. Finally, Rule 31 requires the Coroner not to record any rider unless, in his opinion, the rider is designed to prevent the recurrence of fatalities similar to the one being inquired into.

32. I will now attempt to summarise the learned judge's principal findings and conclusions:

33. The applicants who now appeal against the judge's refusal to grant the declaration they had sought, complain by their Notice of Appeal that in law, and in the proper exercise of his discretion, on the authorities cited with approval and applied, the declaration they had asked for ought to have been granted in view of certain "findings or rulings" made by the judge. The ones specified in the Notice are those I have attempted to summarise in paragraphs (b), (c), (h), (i), (j), (1), (m) and (o). The applicants also rely upon what the judge said when giving his reasons for his costs order.

34. The Notice of Appeal lists other reasons why it is said the judge had erred in law or had wrongly exercised his discretion by refusing the declaration sought. It is said that Dr. Bascombe's stance at the inquest had not been vindicated by the Coroner's refusal of the declaration; that the interest of the MDU in seeking a decision on the instant case to serve as a precedent for the future had not sufficiently been taken into account and that a declaration was not otiose or academic having regard to the public importance of the issues raised as well as the desire of the parties to review the matters in controversy throughout the inquest.

35. The Notice of Appeal concludes by asserting that the judge's reasons and the expression by him of his opinion on various aspects or the relevant law were not a substitute for a declaration because, in the absence of a declaration, they were obiter dicta rather than a binding precedent. Moreover, it is said the judge's reasons contain a number of errors of law. Particular complaint is made about the judge's conclusions I have sought to summarise above in paragraphs (e), (k), (n) and (p) and it is suggested that some of them were "obscure" and did not represent the law.

36. I mention here a certain matter which is clearly relevant to the exercise of a Court's discretion were an application for a declaration is made. When Mr. Thomas was reading the following passage from Barnett, J.'s judgment :

"Dr. Bascombe seeks no personal benefit from his application.  He is concerned that fellow practitioners should not have to undergo the same ordeal ....."

I enquired whether this was so because I, for one, had never heard of a case where such, no doubt, altruistic and laudable motives had been accepted as a proper foundation for the relief which was sought. Mr. Thomas said that the judge had got it wrong and that Dr. Bascombe was seeking by his application to be "vindicated". It was not made clear to me what was meant by this observation. It could not have meant that Dr. Bascombe was seeking to have his reputation vindicated, for the declaration could not do that. From what Mr. Thomas said, it appeared more likely that Dr. Bascombe was seeking to have the stand taken on his behalf before the Coroner as to the proper ambit of the inquest vindicated and I began to turn my mind to the question whether this could be an acceptable plank upon which to rest an application for a declaration - I am not here concerned with the question whether leave to apply for judicial review should have been given.

37. However, on a subsequent day during the hearing of the appeal, Mr. Thomas very properly produced to us an affidavit sworn by Dr. Bascombe which was before the judge and of which Mr. Thomas had been unaware. It showed that the judge had made no mistake; I quote the two final paragraphs of Dr. Bascombe's affidavit dated 23rd January 1990:

38. I think it is necessary frankly to confront the unusual stand being taken by the applicants. They do not attack the verdict of the jury. They do not deny its authority. They do not seek to have the verdict quashed under the Court's common law jurisdiction. They have not attempted to invite the Attorney General to use his powers under section 20 of the Ordinance to require the inquest to be re-opened. They do not accuse the Coroner of misconduct in the ordinary sense of that word. They do not seek an order of mandamus or prohibition to control the conduct of the inquest. While they say that the rules of natural justice were breached they do not suggest that any such breaches had any bearing upon the verdict with which they are content.

39. I mention here that when I asked Mr. Thomas whether he could point to any injustice suffered by Dr. Bascombe as a result of the alleged breach of the rules of natural justice (about which Barnett, J. made an eminently sensible finding), Mr. Thomas said he could not but that "Dr. Bascombe must have suffered some injustice." I will say no more about this submission.

40. Mr. Thomas was not able to cite a single case from any of the many Commonwealth jurisdictions, or for any other common law jurisdiction, where an application even remotely resembling the one we have to consider had succeeded (or, indeed, had even been made). Of course, there is always a first time.

41. Mr. Thomas contended that in an appropriate case, even if no other relief were sought, it would be in accordance with the law and practice to grant a declaration, say, that the rules of natural justice had been breached during a hearing even if the breach had had no impact upon the result and even where the decision or verdict is not being challenged. As I understood Mr. Thomas, his submission extended to the proposition that anyone who could legitimately complain that he had been unfairly cross-examined at length and kept in Court for longer that was necessary because the judge permitted the investigation of irrelevant matters, could properly seek a declaration to prevent a similar ordeal being undergone in the future by his fellow citizens.

42. I would mention here that Mr. Thomas read us passages from wade's Administrative Law, (6th Edition). From page 595 Mr. Thomas read:

43. I invited Mr. Thomas to say whether he accepted what Sir William wade had written in the sentence I have emphasised, and he agreed that that was a correct statement of the law. There was, he said "a genuine legal issue between proper parties" here. I have to confess that I was unable to understand the grounds upon which this submission was made, despite the patient and courteous efforts of Mr. Thomas to explain why be felt able to make it.

44. The jurisdiction of the High Court to grant declaratory-relief, given by section 21K of the Supreme Court Ordinance, Cap.4, whenever it is "just and convenient", cannot be affected by anything said in RSC O.15, r.16, but I would remark in passing that it is interesting to note that that rule speaks of the power of the Court "to make binding declarations of right whether or not any consequential relief is or could be claimed". However one looks at the matter before us, one would be hard put to describe the declaration sought (if one were obliged to) as "a binding declaration of right". Mr. Thomas submitted that the "rights" of Dr. Bascombe that had been infringed were not private law rights, but the public law right of every person to be dealt with by a public authority in accordance with the law, and by fair procedures. In judicial review proceedings, the Court would grant declarations to protect such rights. In any event, it was not necessary to show that Dr. Bascombe's rights were infringed if be had a "sufficient interest" to bring proceedings for judicial review.

45. Mr. Thomas contended that the reforms in public law in 1977 gave the Court power, in every case where it gave leave for judicial review proceedings to be brought, to grant relief to any person (with a sufficient interest) who challenged the exercise of power by a public authority. Although many reviews did involve complaints about decisions of judicial and administrative bodies, the Court's powers of review extended beyond that to any instance of a public authority carrying out its functions not in accordance with the law, unfairly or irrationally.

46. However that may be, I know of no authority relevant to the High Court's wide and unfettered jurisdiction to grant declaratory relief that would justify a declaration sought for the motives put forward by either applicant and in the form asked for (even if a reasonable amendment were to be envisaged). For my part I cannot imagine circumstances in which it could ever be right for a Court to grant a declaration of the kind asked for in relation to any proceedings (civil or criminal) in a Court of law, or in relation to the proceedings of a tribunal, or of a statutory authority, or a disciplinary committee, or, indeed, of any decision-making body in the public or private field, where the applicant has no complaint about the decision made and seeks no relief other than a declaration concerning something that happened during the decision making process, which nevertheless reached the right result, so that such Courts, tribunals etc. get the procedure right in the future. There may be circumstances in which it would be proper to grant relief of this kind but I cannot conjure them up with all the ingenuity that is at my command.

47. I have to say that in my judgment the applications were entirely misconceived. Indeed, I feel bound to add that in my view on the material before the learned judge at the ex parte stage, had he refused leave to both of the applicants to apply for judicial review on the basis that no Court, in the proper exercise of its discretion, could possibly grant the declaration sought, his decision would have been unassailable.

48. This would be sufficient to dispose of the appeal but I wish to address some of the submissions made by Mr. Thomas on behalf of the applicants.  It will be recalled that the relief sought was entirely based upon the proposition that the Court had erred in law, and had thus exceeded his jurisdiction '[by ruling] that the issue whether or not [Dr.] Bascombe exercised reasonable skill and care in the medical treatment administered by him to the deceased on 14th January 1989 was a proper issue to be canvassed at the Inquest ...."

49. We were told that this proposition had been distilled from various rulings and statements made by the Coroner. We were taken through 8 pages of correspondence before the inquest began and, from the transcript, 10 pages of submissions and responses at the outset and 23 pages during submissions at the close. Reference was also made to parts of the summing up.

50. I have to say at once that having read and re-read what was put before us, I am wholly unconvinced that the formulation in the proposed declaration is a fair and accurate summary of the Coroner's views. It seems to me that to be fair to the Coroner, and not to give a misleading impression of his approach, one would have to consider all that he said and bear in mind that during a long inquest (just as during a long appeal hearing) it would not be difficult to point to submissions by counsel and responses by the Court which could have been better phrased.

51. At pages 204-205 of the transcript, occurs the following exchange:

52. I now quote from parts of the Coroner's rulings at the start of the inquest:

53. And it is to be noted that toe Coroner began his summing up to the jury like this:

54. It seems clear to me that, all along, the Coroner shared the approach of Hardie Boys J. in Louw v. McLean CP 445/87, transcript of judgment dated 12th January 1988.   In my view the Coroner was on very sure ground indeed in so doing. In my respectful opinion, the New Zealand judge's analysis could not be improved upon. That was an application for judicial review arising out of an inquest into the death of a lady who had been admitted to a hospital in New Zealand for surgery to correct a nerve problem in her arm. She suffered a cardiac arrest and later died. On the first day of the inquest attention had been directed to the anaesthetic procedures and the anaestnetist, Dr. Louw, was summoned to give evidence. The Coroner was invited to make certain orders and gave his rulings. Dr. Louw applied to the High Court for a review of the Coroner's conclusions, seeking an order in the nature of prohibition, to prevent the Coroner admitting evidence, of which it was said the substantial purpose was to discredit him.  He also sought a declaration that the Coroner was not entitled to admit evidence which would tend to discredit him.

55. Hardie Boys J. noted that the doctor's concern arose from the realisation that some, at least, of those represented at the inquest wanted to establish whether any member of the operating team was at fault.

56. The judge referred, inter alia, to section 4 of the New Zealand Coroners Act which prescribed the principal function of the Coroner as being to inquire, in accordance with the provisions of the Act, "into the manner of death" of any person whose death was reported to him. And to the purpose of the inquest, stated in section 12 as follows:

57. This is now the judge summarised what had been sought of him:

"What is sought here is a declaration that no evidence may be given by and no questions put to any witness that may in any way tend to show that Dr Louw was at fault.  Whether in terms of the criminal law or the civil law, or in terms of proper and accepted standards of medical practice. For this purpose, I am asked to define the limits of the Coroner's jurisdiction as they are set by the Act; and then to direct the Coroner to keep within them."

58. I will now read from pages 11-13 of the transcript of Hardie Boys J.'s judgment. I have added emphasis to part of this passage for reasons which will later be apparent:

59. It is interesting to note that Hardie Boys J. agrees with the editors of Halsbury's Laws of England (4th Edition) Vol. 9 para. 1110, note 1, that a Coroner in England must also investigate "the circumstances surrounding the death" for, as we have seen, section 6 of our Ordinance expressly requires the Coroner "to inquire into the cause of and the circumstances connected with the death ..." [Emphasis added].

60. It is in relation to the passage which mentions the "determination of the procedures that were employed, but also a determination whether the correct procedures were employed" (empanasised above) that Mr. Thomas is recorded to have made what I am bound to describe (but, of course, with very great respect) as a somewhat startling submission to Barnett, J. In the judge's words: "'procedures' as used there, said Mr. Thomas, relate to procedures laid down, e.g. in the operating instructions of a particular piece of equipment. It is legitimate to see if they have been followed ..." This simply cannot be so. Mr. Thomas has stated that the judge did not misunderstand him. However that may be, the stand maintained by Mr. Thomas throughout this appeal was that the inquest could only go into the procedures, for example, laid down in a manual instructing the operator now a machine or piece of equipment should be used, but that evidence of medical procedures ordinarily employed by the medical profession in a given situation was irrelevant and inadmissible, even if such evidence might have revealed that if the anaesthetist attending a patient during an operation had done what every reasonably competent anaesthetist would have done, the patient would not have died. I do not know now it can be maintained that such evidence, if it is available, is not relevant when inquiring "into the cause of and the circumstances connected with the death."

61. I invited Mr. Thomas to reconsider these submissions (which he acknowledged to be central to his case) over the weekend, and he was good enough to do so. This is part of his written response to my invitation:

Mr. Thomas emphatically confirmed (see paragraphs 3 and 4) that the only "procedures about which evidence could be heard were those laid down in such material as operating manuals - not evidence of general and approved medical practice and procedures. And so the use of the expression "laid down" in those paragraphs was deliberate. I was, and remain, astonished by this contention as I am by what is said in the second part of paragraph 2 - again, with the very greatest respect to Mr. Thomas.

62. In line with this approach, Mr. Thomas first submitted that none of the evidence about what happened in Theatre No.2 which I have summarised at the beginning of my judgment was relevant, and therefore admissible. Later he conceded that evidence that the sister rushed into the theatre from the one next door to disconnect the tube which, unbeknown to anyone in the theatre, was pumping nitrogen instead of oxygen into Mrs. Boyde, but only that evidence, was admissible. Later still, Mr. Thomas submitted that it would be admissible for the inquest to hear about the nitrogen having been administered to the lady who survived, but no more. And certainly the jury should not have heard that the lady next door did not die and now it was, that although she received nitrogen instead of oxygen from the same source as the nitrogen which killed Mrs. Boyde, she is nevertheless alive today. The treatment the other lady received was irrelevant and inadmissible.

63. Here were two ladies under anaesthesia in adjoining theatres in the same hospital, on the same day and at the same time. They each received nitrogen, as we have noted. Both patients turned blue, a sure sign, it is said, of oxygen deprivation. Part of a machine in Mrs. Boyde's theatre which would have measured the percentage of oxygen flowing through the anaesthetic machine was not connected. The tragedy was averted in Theatre No.2 and the lady there was very quickly connected to an emergency gas cylinder - and as we know there was one of these in Mrs. Boyde's theatre too. As it turned out there were a number of factors which, taken together, explained why the lady in Theatre No.2 is alive and Mrs. Boyde is dead, but there surely can be no doubt that the jury were entitled to be told exactly why there were such different results from the same basic dreadful mistake that had been made - the theatres having been supplied with nitrogen instead of oxygen from the identical source. To say, as Mr. Thomas has done, that the events in Theatre No.2 were unrelated incidents which could have had no cause bearing on the cause of death of Mrs. Boyde, so that evidence of the fact that the other lady survived and of the treatment she received was irrelevant, cannot be right.

64. In my judgment, had the Coroner sought to prevent the jury hearing the evidence objected to by Mr. Thomas, he would have been guilty of a very grave dereliction of duty. Fortunately, Mr. Sinclair knew exactly where his duty lay. It was Mr. Thomas who read to us the following passage from Jervis on the Office and Duties of Coroners (10th Edition, 1986), para.1.8:

"The functions of an inquest on a dead body at the present day are really to determine certain facts about the deceased: his identity, the cause of his death, and the circumstances surrounding his death and that cause. In R. v. South London Coroner, ex p. Thompson, Lord Lane C.J. summarised this by saying that: 'The function of an inquest is to seek out and record as many of the facts concerning the death as public interest requires.'" [Emphasis added]

65. I will say here that I am not persuaded that there is any conflict between the duty imposed by section 6 of the Ordinance "to inquire into the cause of and the circumstances connected with the death" and rule 23 of the Rules which says that the proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters: ...."(b) how, when and where the deceased came by his death." If it is said that rule 23 somehow limits the duty laid down in the Ordinance, of course, it cannot . Nothing said in the Rules made by the Chief Justice can affect the scope of a provision in the Ordinance itself, properly construed.  If the duty in section 6 is wider than that is prescribed in rule 23, again, of course, the Ordinance prevails.

66. If I understand him correctly, Mr. Thomas submitted that before the inquest began, the Coroner should, on the material before him, and before the jury heard the witnesses being examined and cross-examined, have decided and ruled that a "lack of care" verdict could not be left to the jury and therefore have forbidden any evidence that went beyond the determination of the obvious cause of death - the giving of nitrogen to Mrs. Boyde instead of oxygen. There may be cases where it is clear that certain evidence is irrelevant and the Coroner can properly give guidance to interested parties to save time and expense but, at any rate to me, it is absolutely plain that this was not such a case.

67. As everyone appreciated, the question of causation (not just in the legal sense) is an extremely difficult one. It is not necessary to go into the matter, but in my view, the width of the duty imposed by section 6 of the Ordinance permits (and, indeed, requires) the inquest to go into any evidence which might reasonably be relevant to the fulfilment of that duty. It all depends on the circumstances. There may be evidence of cumulative causes. There may be evidence to show that a certain event is not the sole or the main cause of the death. And then there are the difficulties created by the concept of novus actus interveniens. Surely, the Coroner, if he is to perform his duty according to law, must so conduct the inquest that the full facts are known so that the real cause of death can be determined and a proper verdict reached,

68. We have before us a submission that while the evidence led to determine "how" a person died is relevant and admissible, evidence as to "why" the deceased came to die is irrelevant and inadmissible. I may be forgiven for a measure of impatience in rejecting any attempt to circumscribe the difficult task of a coroner by semantic notions of that kind.

69. As this appeal proceeded it became daily clearer to me that Mr. Sinclair conducted this difficult inquest into a tragic death entirely fairly, with great agility and sensitivity, and in accordance with the law. I am happy to pay tribute to him. I do not accept any of the criticisms levelled against him by Mr. Thomas. Since we did not call upon Mr. Whaley, all I need say, and this most respectfully, is that nothing I have said must be taken as accepting any of the criticisms made by the judge of the way the Coroner conducted the inquiry, or that I necessarily accept that the MDU had a sufficient interest to give it a locus standi. Had it been necessary, I would have wished to hear full argument on the question of their locus standi.

70. I would dismiss the appeal against the refusal of the judge to grant the declarations sought.

71. After delivering his reserved judgment, the judge heard argument on costs. He decided to award costs against the Coroner, to include the costs of the application for leave to apply for judicial review, and directed that his order was not to be enforced against the Coroner unless a suitable indemnity to pay the costs from public funds was forthcoming.

72. In the reasons that he gave, he said that he was not persuaded that a mere error of law should call for strong disapproval. But, he said, he had in mind the grave consequences the error of law had had on Dr. Bascombe. Firstly, he had been put to considerable expense (even though indemnified by the MDU). He had suffered considerable financial loss since he had been unable to practice both during the inquest and for some time thereafter. Moreover, in the judge's view, the Doctor had had to go through the harrowing experience of defending his reputation which had been attacked at the inquest, "a reputation that has somewhat been left in the air". He had suffered very considerably by the error of law which had been raised three times before the Coroner. On each occasion the Coroner had either rejected Counsel's submission or had been noncommittal. The judge said he was therefore satisfied that this was a proper case in which to depart from the usual principle in exercising his discretion. He had earlier cited authority for the proposition that it was unusual to order costs against a public judicial body which had resisted an application for judicial review, in the absence of misconduct, adding that other authority showed that this principle was not immutable. This is the costs order which is the subject of the cross-appeal.

73. The grounds of the cross-appeal are that the applicants had not, as had been submitted to the judge, achieved "substantial success" for they had failed to establish that Dr. Bascombe had been treated unfairly, unfairly, and had been refused the declaration which they had sought. Even if, the respondent argued, the applicants could be said to have achieved a substantial degree of success, in the absence of any misconduct on his part, the Coroner should not have been ordered to pay the costs (notwithstanding the condition that it should not be enforced unless there was forthcoming a suitable indemnity from public funds), as a matter of general principle and for the reasons given later. It is averred that there was no question of any misconduct on the part of the Coroner in this case: the applicants' complaint was simply that the Coroner had erred in law in determining the limits of his jurisdiction.

74. It is also said that notwithstanding that the judge found that the Coroner had exceeded his jurisdiction, the relief sought by the applicants was academic and hypothetical in the circumstances of the application; the applicants had frankly admitted that they were seeking to make a point of principle for the future conduct of inquests in Hong Kong. It is submitted that the judge had erred in regarding as a relevant consideration, the financial loss suffered by Dr. Bascombe in attending the inquiry and had erred in considering that it was relevant consideration the alleged narrowing experience undergone by Dr. Bascombe while defending his reputation during the inquiry. The judge was wrong to find that Dr. Bascombe reputation had been somewhat left in the air.

75. This, it was submitted, was neither accurate in fact (the Coroner had expressly directed the jury that they could not, on the evidence, consider the standard of care of Mrs. Boyde's treatment when framing their verdict), nor relevant in law to the question of costs. Finally it is said that the judge also erred in placing reliance on the fact that a point of law had been raised three times by Dr. Bascombe before the Coroner because that was irrelevant to the question of costs.

76. The learned judge relied to some extent on In the matter of a inquest into the death of Adam Bithell deceased [1986] 150 JP 273. With very great respect to the judge, I do not see now he derived any assistance from that case. There it was held that the deficiencies in the summing up of the Coroner at the inquest were such that the interests of justice made it necessary or desirable that the inquisition be quashed and another inquest be held. An order for costs was made against the Coroner in pursuance of the authority given by section 6 of the Coroners Act 1887 of the United is Kingdom:

77. As the judge noted, the position in our case was different, and there is no provision in our Coroners Ordinance on the lines of the English section which authorised the award of costs. The judge also mentioned R. v. Turnbull, ex parte Kenyon, The Times, April 11 1984 (DC). About that case, the editors of the 10th Edition of Jervis make the following comment in footnote 47 on page 263:

"..... a case of judicial review, where the Court based its power to award costs, somewhat surprisingly, on section 6 of the 1887 Act."

78. The judge does not mention the provisions of RSC O.62, r.2(3) which require the Court to "order the costs to follow the event, except when it appears to the Court that is the circumstances of the case some other order should be made as to the whole or any part of the costs " but he was clearly aware of the rule because he speaks of being satisfied that this was a proper case to depart from the usual practice.

79. Mr. Thomas conceded that the judge had erred in law in taking into account the fact that Dr. Bascombe had suffered "considerable financial loss as he was not able to practice both during the inquest and for some time thereafter". With every respect to the judge this was not a relevant consideration and allows this Court to consider the matter afresh and exercise its own discretion in the matter.

80. The learned judge referred to R. v. West Yorkshire Coroner, Ex parte Smith, The Times  November 6 l982 where we find the following in the report of a decision given by the Divisional Court:

81. Mr. Thomas submitted that Bithell showed that an error of law could amount to "misconduct". I am unable to understand the basis for this submission; in my view Bithell does no such thing. Mr. Thomas drew support for his proposition from the law and practice relating to arbitration and contended that an error of law could amount to "misconduct". In my Judgment it is unhelpful and dangerous to transport the rather special meaning given in arbitration law to "misconduct" by an arbitrator into judicial review. In any event, that submission runs counter to comment in Commercial Arbitration: Mustill and Boyd (1982 Edition), page 602 where the learned authors say: "It has been clear for at least 200 years that it is not misconduct for an arbitrator to make a mistake of law or fact." In the footnote to that sentence we find "The authorities are so numerous and unchallenged that it would be pointless to set them out." The authors continues: "It makes no difference that the error is obvious, in the absence of jurisdiction to set aside for error on the face.  Nor does it matter that the error is gross ..." I do not think anything more need be said on this point, except to say that I reject the submission urged upon us by Mr. Thomas.

82. The discretion we now have to exercise is very wide, but it is a judicial discretion and one which must be exercised in accordance with rules of reason and justice. Even on the judge's view of the errors made by the Coroner (and I have said I do not wish to be understood to have agreed with him - with every respect) on the facts of this case, and taking all the circumstances into account, the applicants, having failed to obtain the only relief they had sought (which in my judgment no Court could properly have given them) a costs order that did not follow the event could not be Justified.

83. I would therefore allow the cross-appeal on the judge's costs order.

Kempster, J.A. :

84. During April and May 1989 when, pursuant to section 6 of the Coroners Ordinance (Cap 14), Mr. Sinclair conducted an inquiry into the cause (by which may be understood "the causes". Interpretation and General Clauses Ordinance (Cap 1) section 7(2),) of and the circumstances connected with - a wider provision than that found in the English legislation - the death of Mrs. Shirley Ann Boyde in the Canossa Hospital during the preceding January he had no easy task to perform. As he was well aware he had to tread delicate course. On the one hand it was incumbent upon him to explore any avenue which might reasonably be expected to reveal such cause or causes or to elucidate the circumstances and on the other, by reason of rules 23, 24 and 30 of the Coroners Rules in particular, not to permit his exploration unnecessarily to extend to matters determinative of any civil liability attaching to the supplier of oxygen to the hospital, to the anaesthetist or to anyone else. The procedures of the oxygen company were examined over a period of some three weeks. Some overlap was inevitable.

85. In response to a submission made at the opening of the inquiry the coroner said:

"I will look very carefully to ensure that no parties raise questions of individual witnesses which are designed solely to shift blame or put blame on any individual; they will only be allowed to put those questions if it is felt the answers thereto will tend to increase our knowledge of how it came about that Mrs. Shirley Boyde died and enable the jury to return a proper verdict".

In my opinion, which differs from that of Barnett J, that is just what he did. Mr. Sinclair exercised type peculiar, taxing and responsible jurisdiction committed to him with distinction.

86. The circumstances leading to the inquest have been described by My Lord the Vice-President. So far as Dr. Bascombe was concerned material available to the coroner before the hearing would, it seems, have suggested that while unbeknown to him nitrogen was piped into the central oxygen supply at about the time he commenced to anaesthetise his patient he had available to him two mechanical devices the understanding or use of which might almost immediately have revealed the nature of the gas which he was administering. In this regard the answer given by Mr. Thomas to a question put to him by  the Court was:

"Evidence of practice which, if followed, would have saved the patient's life is irrelevant."

He adopted a like stance in relation to evidence that in an adjoining ward a patient to whom nitrogen had been administered was successfully resuscitated. In fairness I should explain that we asked Mr. Thomas many questions susceptible only of answers which would have revealed, if revelation was required, the surprising  implications of these proceedings for judicial review. Understandably he sought to reserve his position. On the last day of the hearing before us he resiled from the concession he had made at the outset that Dr. Bascombe had suffered no injustice.

87. The only injustice of which complaint is made, as I understand the argument, is that Dr. Bascombe was required to explain what occurred in the operating theatre and why at the time his patient inhaled nitrogen and died. I agree with the finding of Barnett J that Dr. Bascombe was not treated unfairly. But, looking at the situation from the point of view of the coroner, he was bound in all fairness to afford the anaesthetist the opportunity of giving his account of material events and procedures. Paradoxically the coroner is alleged to have erred in law in so doing albeit it was only at a relatively late stage in the inquiry that it became apparent that death was inevitable. In consequence the options of verdicts of "lack of care" or of "accident aggravated by lack of care" were properly withdrawn from the jury. These circumstances afford neither Dr. Bascombe nor the Medical Defence Union who finance him, neither seeking to quash the verdict, grounds to impugn the coroner's conduct in the course of the inquiry let alone to be granted a declaration. After all "lack of care" means, as Croom-Johnson LJ explained in R. v. Southwark Coroner [1987] 1WLR 1624 at pp  1631, 1633 and 1634,

"physical attention preventing death from ... bad ... medical care ... what the verdict of 'lack of care' presupposes is that some other person had at least the opportunity of rendering care ... . which would have prevented. the death."

This is not to be confused with the legal duty of care as defined in Donoghue v. Stevenson [1932] AC 562. In R. v. Southwark Coroner the Divisional Court, holding a "lack of care" verdict worthy of investigation in case there had been insufficient medical treatment, quashed a verdict of "death by misadventure" in the light of the coroner's refusal to call the doctors concerned with the deceased prisoner's treatment. Of course no particular person may be identified as having failed to afford that care.

88. A similar question to that with which we are presently concerned arose in New Zealand in relation to an inquest commenced on 9 October 1987. A woman had been admitted to hospital for the surgical correction of a nerve problem in her arm. In the course of the operation she suffered a cardiac arrest and shortly afterwards died. When the anaesthetist was summoned to give evidence the coroner was invited to make orders precluding the admission of evidence which might tend to discredit him or to fix him with blame. The coroner declined to accede to the application. The anaesthetist sought an order of prohibition and a declaration that no evidence should be adduced or questions put tending to show that he was at fault, inter alia, in terms of proper and accepted standards of medical practice. Hardie Boys J quoted with approval a passage from the 9th edition of Jervis on Coroners on the nature of inquests: -

"They can and should afford a quick and cheap method of drawing public attention to circumstances which merit investigation. Suspicious circumstances attaching to a death even though there is no suggestion of murder or manslaughter are one example. Thus the relatives of a deceased person may feel that the deceased died owing to the negligence or inefficiency of medical authorities: there have been, for instance, several recent cases connected with the admission of patients to mental or other hospitals. If there has been any dereliction from duty, the facts are brought out into the open for all to judge; equally if the suspicions are unjustified, this also can be exposed and the persons cleared of unjustified suspicion. A properly conducted inquest has advantages in speed and cheapness over alternative judicial proceedings."

That judge went on to hold:-

"... for an inquest to have a useful social function it must I think be able to go beyond the mere medical cause of death. I agree with the comment in Halsbury's Laws of England 4th edition vol. 9 para. 1110 note 1, that the coroner must also investigate the circumstances surrounding the death. This must necessarily involve in this case not only a determination of the procedures that were employed but also a determination as to whether the correct procedures were employed. ... If in order to ascertain or explain how death occurred in the wider sense of the events that were the real cause, the implicit attribution of blame is unavoidable then, as the coroner himself observed, 'so be it' .. If however evidence directed to that topic tends to discredit or place blame on the doctor that cannot be helped. Similarly with cross-examination of the doctor himself. Counsel are entitled to discredit him in the sense of showing that his evidence should not be accepted and they are entitled to cross-examine him as to the relevant circumstances; but they are not entitled simply to show him to have been at fault." Louw v. Mclean High Court of New Zealand CP 445/87, 12 January 1988 (Unreported)

 

Mr. Thomas's attempt to restrict the word "procedures" to instructions in technical manuals has been the subject of comment by My Lord the Vice-President and calls for no elaboration on my part. I cannot for a moment agree with Barnett J, if I understand him correctly, that "correct procedures" means conduct evaluated by the standards of the- unassisted - jury.

89. Had Mr. Sinclair failed to permit  investigation of the conduct of and explanation by the anaesthetist prior to the disclosure of facts rendering such matters irrelevant he would have failed in his public duty and have seen open to the same criticism as that levelled at the coroner in R. v. Inner London North District Coroner Times 6 August 1990. It is not improper for a coroner to call evidence tending to confirm or to refute and allay rumours and suspicion R. v. Manchester Coroner [1985] 1QB 67 at pp 83 and 85 per Robert Goff LJ (as he then was).

90. The facts deployed before us might give rise to the impression that by successive submissions starting, by letter, before the hearing and by the application for judicial review subsequently sought an attempt was being made to inhibit the proper discharge by coroners of their inquisitorial role in relation to members of the medical profession. In the event I hope that the outcome of this appeal will give the guidance for the future that is genuinely sought. It really only comas to this. The coroner must discharge his statutory functions and comply with the rules to which the exercise of his jurisdiction is subject without fear or favour.

91. I agree that this appeal should be dismissed and the cross-appeal allowed.

Penlington, J.A.:

92. I have read the judgments of Fuad V.P. and Kempster J.A. in draft and agree with what they have said.

93. I would however refer to a conflict in the evidence as to the initial change in the colour of  Mrs. Boyde's skin. There was no doubt that some time after the first indication that all was not well she was cyanosed - she turned blue, a sign of oxygen deprivation. However Dr Bascombe's evidence, supported by Dr Chang, was that she first of all went gray. This, according to Dr Holland, would show cardiac arrest with the blood being drained away from non-vital parts of the body such as the face. This evidence was important as in theatre no. 2 the patient turned blue almost immediately she was put onto the nitrogen. However the coroner's direction on this aspect cannot be faulted.

94. I have also found the decision in Louw v. McLean of particular help. The background of that case is virtually on all fours and the judgment of Hardie Boys J. sets out admirably what is the correct approach for a coroner to take when inquiring into a death where inevitably there will be evidence indicating fault on the part of some person or persons who owed a duty of care. (I am only sorry that decision has not been reported as yet.) That category of persons is of course by no means confirmed to medical practitioners, it could include, in the instance put forward by Fuad V.P. in the course of argument, a signal-man who apparently failed to take proper steps and a train crash resulted.

95. I am moreover of the view that in the instant case it was in the interest of Dr Bascombe that there should have been evidence as to what happened in theatre no. 2. Once evidence was led that the patient in that theatre received the same nitrogen as Mr. Boyde but the fault was detected before it was too late and the medical team in theatre no. 3 were then warned, it surely was very much in Dr Bascombe's interest that further evidence be led to show  that the circumstances in both theatres were very different and a conclusion which the public might have come to was not correct.

96. Dr Holland dealt in some detail with the situations which developed in theatre nos. 2 and 3 and pointed out the very different circumstances of each operation. He concluded:

"Now finally, and I think perhaps most importantly, Dr Chen had the great advantage that his patient's deterioration was all but simultaneous or synchronous with her attachment to the anaesthetic apparatus. It was an elementary deduction that there was something wrong with the apparatus. I don't really believe personally that he knew what was wrong at that stage. It was just the machine had somehow let him down and what he did was to disconnect it and do what he did, so that I believe on all those counts he was dealing with a totally dissimilar clinical situation to that which confronted Dr Bascombe."

97. Coroners clearly are faced with a difficult task in conducting a full inquiry without however allowing evidence which is only relevant to fault. I also consider that were the coroner did so with considerable ability.

Fuad, V.-P.:

98. The appeal is therefore dismissed and the cross-appeal allowed. The costs order made by Barnett J. is set aside.

99. In handing down these judgments, we make orders nisi as to costs as follows: