HCMP001950/1989
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
_____________
In the matter of an application by the Medical Defence Union Limited and Michael John Bascombe for leave to apply for judicial review
and
In the matter of the conduct of Death Inquiry No. 31 of 1989 by H.M. Sinclair, Esquire, Her Majesty's Coroner, into the death of Shirley Ann Boyde, deceased
_____________
Coram: The Hon. Mr. Justice Barnett in Court
Date of Hearing: 30 and 31 January, 1 and 2 February 1990
Date of Delivery of Judgment: 15 February 1990
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ADDENDUM
____________
At page 41, following the paragraph ending "......... Dr. Bascombe's conduct" insert ：
In my view, this is reflected in the Rules which cater for the occasional enquiry in which there is a full-scale evaluation of conduct and which accord with the narrower construction of S.6. If the wider construction of S.6 for which Mr. Whaley contended is correct, I would have expected to find a more generous and comprehensive set of rules to provide for the inevitable detailed and lengthy enquiries.
(N.J. Barnett)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
_____________
In the matter of an application by the Medical Defence Union Limited and Michael John Bascombe for leave to apply for judicial review
and
In the matter of the conduct of Death Inquiry No. 31 of 1989 by H.M. Sinclair, Esquire, Her Majesty's Coroner, into the death of Shirley Ann Boyde, deceased
_____________
Coram: The Hon. Mr. Justice Barnett in Court
Date of Hearing: 30 and 31 January, 1 and 2 February 1990
Date of Delivery of Judgment: 15 February 1990
___________
JUDGMENT
___________
1. In April and May 1989 the coroner, Mr. H.M. Sinclair, conducted an enquiry, pursuant to the Coroners Ordinance Cap. 14 (the Ordinance), into the untimely and unhappy death of Mrs. Shirley Ann Boyde. It is, I think, widely known that Mrs Boyde was having what was a relatively routine operation at Canossa Hospital on 14th January 1989 to reduce a fracture of her ankle. For this purpose she was given a general anaesthetic by the anaesthetist, Dr. Michael John Bascombe. Unfortunately, the hospital oxygen supply, unbeknown to everyone concerned, contained nitrogen. Mrs. Boyde received so much nitrogen that she ultimately died of cerebral anoxia.
2. Before the enquiry commenced, counsel on behalf of Dr. Bascombe wrote to the coroner's officer expressing concern that the coroner might direct the jury that a verdict of lack of care was open to them and that such a verdict would involve consideration of whether there was a failure to meet a fair and reasonable standard of care. Counsel cited authority in support of his view that lack of care is a very special verdict, requiring careful direction, and does not amount to a finding of, effectively, negligence. The coroner's officer replied, in a somewhat non-committal way, that in his view a verdict of misadventure aggravated by lack of care is permissible. He did not vouchsafe his view on the nature or meaning of lack of care.
3. Upon on the opening of the enquiry on 17th April, counsel took the matter up again because he apprehended the Hong Kong Oxygen Co. Ltd., which was responsible for supplying oxygen to the hospital, intended calling evidence with a view to establishing that negligent or inadequate medical treatment was the effective cause of death. The coroner ruled upon this. He said "the purpose of the enquiry is to make a full, frank and revealing investigation into all aspects of death - so far as they are relevant" and went on :
"It is for the Coroner's Officer, with my directions, to call such evidence as reveals to the Court, to the public and most particularly to the Jury, all of the circumstances. If there is evidence which is relevant, which does disclose perhaps some fault, perhaps some cause which contributed to the death, then that evidence will be called. If there is other evidence which tends to negate that, then that is also relevant and that will also be called by the Coroner's Officer. One cannot restrict the verdicts which are open; the verdicts as I say, which will be left to the Jury are those which in my opinion, based on the evidence, can properly De left to them to properly describe how it was this unfortunate lady came to her death."
He finished by saying :
"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 enables the Jury to return a proper verdict."
4. The enquiry lasted 5 weeks. Over a week was spent examining the medical and anaesthetic aspects of the episode, during which Dr. Bascombe was questioned persistently not just on what he did at the time but on his training, experience and knowledge. Expert witnesses were closely examined as to how a reasonable anaesthetist should have reacted when the emergency occurred. One expert clearly felt Dr. Bascombe fell short of such a standard another did not.
5. At the conclusion of the enquiry, counsel made a written submission on behalf of Dr. Bascombe reiterating that a lack of care verdict would be inappropriate. The coroner ruled that, subject to the evidence supporting it, such a verdict might be left to the jury. He went on to sum up to the jury, in the course of which he said :
"Now, members of the jury, you have heard an amount of evidence given by expert witnesses called to give opinion on the treatment and care received by Mrs. Boyde when in operating Theatre No. 3. This is because a physician owes a duty to his patient to use diligence, care, knowledge, skill and caution in administering his treatment. The law requires a fair and reasonable standard of care and competence. What is meant by fair and reasonable is to exercise ordinary skill and care, according to the ordinary and reasonable standards of those who practise in the same field of medicine. The standard for the specialist is the standard of the specialists. A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical people skilled in that particular field, even though other doctors may adopt a different practice. Now we have heard from several eminent professors of anaesthesiology about what they say should have been done, or what could reasonably have been expected to have been done in Theatre No. 3 to save Mrs. Boyde's life.
What is the relevance of this evidence? Well, it is relevant in two respects. First, if you (a) found that the care given to Mrs. Boyde by the doctors attending her or any one of them fell below what you found as a fact, based on all the evidence you have heard, a fair and reasonable standard as I have defined it; and if you were (b) satisfied that Mrs. Boyde would, unless some unrelated intervening event occurred, be alive today had the care given been reasonable, you would be entitled to reflect such in your verdict by the audition of such words as "aggravated by lack of care." ......
Now, I have reviewed the evidence very carefully since we last met, paying particular attention to the link between the care received and the death of Mrs. Boyde.
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 had been otherwise than you may have found it to be."
6. That, it is agreed, is a careful and accurate direction for the purpose of determining whether a person has been negligent or at fault. However, after rehearsing the relevant evidence, the coroner directed that it was not open to the jury to consider care when it came to their verdict because :
"In any event, and as Professor Oh tells us, there must necessarily have been an overlap time, an overlap between his five minutes or possible sooner, when the onset of brain stem death was inevitable and the two to five minutes when, in Professor Oh's opinion, a resuscitative bag would be reasonably expected to be used. It is, as he says, extremely difficult, if not impossible, to be very precise on such a short time-scale basis.
Therefore, members of the jury, since of that evidence you cannot, as I see it, be satisfied that the time available was sufficient for a reasonable doctor, as defined by Professor Payne, 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. I'm leaving aside the two minutes, I'm giving the outside limits.
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."
7. The jury returned a verdict that death occurred "due to the wrong supply of gas to hospital".
8. Dr. Bascombe now complains that he was subjected to a harrowing and unnecessary experience, unnecessary not just because of the way in which the time factor made the bulk of the medical evidence irrelevant but because the coroner had no authority to conduct the enquiry in the manner in which he did. Together with the Medical Defence Union, he applies for judicial review of the conduct of the enquiry and for :
"A declaration that the learned Coroner erred in law and thereby exceeded his jurisdiction in that :-
(a)
he ruled that the issue whether or not Michael John 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 which commenced on 17th April, 1989;
(b)
he called witnesses and examined witnesses at the Death Inquiry under the Coroners' Ordinance specifically with a view to determining the above issue;
(c)
he allowed the Coroner's Officer and Counsel on behalf of interested parties to examine witnesses with this object and purpose.
Such matters being in excess of the Coroner's function and powers under S. 6 of the Coroners' Ordinance and not in accordance with the practice and procedure prescribed by the Chief Justice in the Coroners' Rules, and in particular Rule 23, Rule 24 and Rule 30."
9. Dr. Bascombe seeks no personal benefit from his application. He is concerned that fellow practitioners should not have to undergo the same ordeal and asks this court to clarify the law. The Medical Defence Union Ltd., however, while echoing Dr. Bascombe, also has a very real financial interest. Worldwide it has 175000 members including a large proportion of all Hong Kong practitioners. Its chief objects are the conduct of legal proceedings on behalf of members and giving advice on professional technical matters. Although retaining a discretion, it generally indemnifies a member from all damages and costs in legal proceedings. Unlike in other countries, it expends considerable funds on death enquiries in Hong Kong because, as it perceives the position, some coroners, as in the present case, regard it as their function to examine whether a medical practitioner exercised a reasonable standard of care and skill as being potentially relevant to a lack of care verdict.
10. Mr. Whaley, who appeared for the coroner, argued that the Union has no sufficient interest in the matter to which this application relates to give it locus standi. He referred me to the notes 53/1 - 14/31 in the Supreme Court Practice. He maintained that the Union has no direct or personal interest in the relief sought; that it was not a party as such at the enquiry; and that it would create an undesirable precedent if a body like the Union, which is little more than an insurer, can intervene to protect its own rather than a public cause.
11. For the Union, Mr. Thomas referred me to a number of authorities. Three I find particularly helpful. In R. v. Horsham Justices, ex parte Farquharson & Act (1982) 1 Q.B. 762, the justices made an order prohibiting any reporting in relation to certain committal proceedings. A journalist, his union and a local paper applied for certiorari to quasn the order, which the Divisional Court did only to refer the matter back to the justices. On appeal by the journalist and the union, Lord Denning M.R. said at p. 787 :
"Locus standi
No doubt Mr. Farquharson, the reporter for the "West Sussex County Tides," has sufficient standing to apply for judicial review: see Reg. v. Russell, Ex parte Beaverbrook Newspapers Ltd. [1969] 1 Q.B. 342. But a question was raised as to the National Union of Journalists. I think they have upon the principle I endeavoured to state in Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R. 550, 559, and in Reg. v. Inland Revenue Commissioners, Ex parte National Federation or Self-Employed and Small Businesses Ltd. [1989] 1 Q.B. 407, 422 which was endorsed by Lord Diplock in the House of Lords [1981] 2 W.L.R. 722, 737 and when he said at p. 740 :
"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped."
As there with the federation, so here with the National Union of Journalists. They are, in my view, entitled to come to the High Court to see if the magistrates were entitled to make this order."
12. In R. v. Her Majesty's Treasury, ex parte Smedley (1985) 1 Q.B. 657, a British taxpayer challenged the validity of a draft Order in Council. On appeal, Sir John Donaldson M.R. said at p. 667 :
"One further point should be mentioned before turning to the substance of Mr. Smedley's application. This is a submission by Mr. Laws that Mr. Smedley has no sufficient interest within the meaning of R.S.C., Ord. 53, r. 3(7). Woolf J. did not find it necessary to decide this point and neither do I, although I agree with the judge that I should be extremely surprised to find myself obliged to uphold that submission."
Slade L.J. remarked at p. 669 :
"The speeches of their Lordships in Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617 well illustrate that there has been what Lord Roskill described at p. 656G-H as a "change in legal policy," which has in recent years greatly relaxed the rules as to locus standi. Lord Diplock referred at p. 640c to a "virtual abandonment" of the former restrictive rules as to the locus standi of persons seeking prerogative orders against authorities exercising governmental powers. If the court had taken the view that Mr. Smedley's application was of a frivolous nature, the wide discretion given it by R.S.C., Ord. 53 would have enabled it to dispose of it appropriately. There has, however, been no suggestion that it is of this nature. It raises a serious question as to the powers of Her Majesty in Council to make an Order in Council in the form of the draft now before Parliament. The making of any such Order would be likely to be followed automatically by the expenditure by the government of substantial sums from the Consolidated Fund in reliance on section 2 of the European Communities Act 1972. I do not feel much doubt that Mr. Smedley, if only in his capacity as a taxpayer, has sufficient locus standi to raise this question by way of an application for judicial review; on the present state of the authorities, I cannot think that any such right of challenge belongs to the Attorney-General alone."
13. R. v. Secretary of State for Social Services and Act, ex parte Child Poverty Action Group and Ors
"The fact that the court is not required to give declaratory relief also means that it is unnecessary for the court to deal with the question of the applicants' locus standi to make their application for judicial review. In the court below Schiemann J. 's judgment records that, because of the importance of the issue, the Secretary of State and the Chief Adjudication Officer did not dispute the issue of locus standi while making it plain that they reserved their right to argue the point of locus standi in analogous cases in the future. Before this court the Secretary of State and the Chief Adjudication Officer wishes to adopt the same position but indicated that, if this court required argument, they were prepared to advance the argument. Mr. Beloff indicated that he would have relied on the decision in the Scottish case of Scottish Old People's Welfare Council, In re, 1987 S.L.T. 179. This court did not require. Mr. Beloff to advance the argument which he wished to reserve. However, we make it clear that in our view the question of locus standi goes to jurisdiction of the court and therefore the approach adopted by the department in this case, while understandable, is not appropriate. The parties are not entitled to confer jurisdiction, which the court does not have, on the court by consent and, if this court had peen minded to grant declaratory relief, would have had to advance any arguments which were available to them or to accept the consequences of not doing so. Having regard to the outcome of this appeal we can content ourselves by indicating that, on the evidence but without the advantage of argument, we have not doubt that it was in order for this court and Schiemann J. to treat the application for judicial review as being one which the court had jurisdiction to hear."
14. The applicants in the latter case would never themselves be applicants for benefit. They would however be closely involved in advising individuals of their rights in relation to such benefit. I see a close kinship with the position of the Union.
15. As urged by Mr. Thomas, I am persuaded that interest should be construed broadly. An important question is raised. I am satisfied that the Union has sufficient interest to give it locus in this application.
16. The applicants put forward 2 grounds for the relief which they seek. First, it is submitted that the Coroner, on a true construction of the Ordinance and Coroners Rules (the Rules), exceeded his jurisdiction and powers. Second, it is said that the enquiry was conducted in a manner which was unfair to Dr. Bascombe, that is to say in breach of the rules of natural justice. While standing on its own, Mr. Thomas also used it in support of his first and principal ground.
17. In so far as it is a separate ground, I will deal with the latter first. Immediately I must emphasise, as Mr. Thomas was at pains to acknowledge, no attack is made upon nor complaint made about the way in which Mr. Sinclair conducted the enquiry. Mr. Sinclair, it is fairly acknowledged, was patient, courteous and did his best to ensure that everyone said or asked what they wanted, subject to relevancy and subject to the Rules prescribing for procedure at a death enquiry. So much is evident from the transcript of the proceedings.
18. Mr. Thomas' argument was that, if the coroner is right about the extent of his jurisdiction, the Rules are inherently flawed. He said that the rules of natural justice apply to a coroner's enquiry : Maksimovich v. Walsh and the Attorney-General (1985) NSWLR 318 where Samuels J. A. said at p. 337 :
"However, it may now be taken as settled that the rules of natural justice may apply to inquiries as well as to judicial proceedings, and I have no doubt but that a coroner is bound to govern his proceedings according to the notions of fairness which the doctrine of natural justice entails.
What those requirements are ' must ... depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth': per Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118."
19. At the very least, the argument went, a person must be advised of any matters to be alleged against him and given the opportunity to deal with them, by calling evidence if necessary : Peter Thomas Mahon v. Air New Zealand Ltd and Ors. (1984) 1 A.C. 808.
20. Mr. Whaley did not address me on this point. I am content to accept the argument. I would have been surprised had the contrary been advanced.
21. The Rules provide :
"15. Any person whose conduct is likely in the opinion of the coroner to be called in question at an inquiry, shall, if not summoned to give evidence at the inquiry, be given reasonable notice of the date, hour and place at which the inquiry will be held.
16. If the conduct of any person is called in question at an inquiry on grounds which the coroner thinks substantial and which relate to any matter referred to in rule 23 and if that person is not present at the inquiry and has not been summoned to attend or otherwise given notice of the holding of the inquiry, the inquiry shall be adjourned to enable him to be present.''
22. Mr. Thomas complained that the Rules contain no provision for notifying the person of the grounds. I would observe only that the Rules do not prohibit such notification but rather prescribe the bare minimum that must be done. Whether anything more is ever done is perhaps debatable because the coroner himself appeared vague about precisely what is notified - see p 670 Transcript.
23. Next it was said Dr. Bascombe was given no notification of what would be said against him. It is true he received no formal notification from the coroner or his officer. It is clear from the transcript, however, that Dr. Bascombe and those advising him knew what was in the wind. They raised it early in the enquiry. While there is a dispute as to whether or not the coroner's officer was prepared to supply them with copies of witnesses', particularly expert witnesses', statements or reports before the enquiry opened (on which I express no opinion), it is clear that the officer was prepared to make them available at the hearing. Those documents would undoubtedly have shown Dr. Bascombe precisely what he could expect. Therefore any failure formally to notify Dr. Bascombe in advance was cured at that stage.
24. Then it is said Dr. Bascombe suffered because he was unable to grapple with matters raised by medical witnesses called after him. As to that, I have 3 observations. First, the documents would have permitted Dr. Bascombe's counsel to tackle these matters with him. Second, the coroner would no doubt have considered sympathetically an application to recall Dr. Bascombe or for an adjournment to gather additional material. Page 671 of the transcript certainly suggests this. Third, an expert whose evidence was favourable to Dr. Bascombe was called by the coroner at Dr. Bascombe's instigation. I consider that there is nothing in this point.
25. Further, Rule 13 gives the coroner a discretion as to the order in which a witness shall be questioned. I have no doubt the coroner would sympathetically have entertained a request that Dr. Bascombe's counsel be first to question him.
26. Rule 28 provides that "no person shall be allowed to address the coroner or the jury as to the facts". This provision, argued Mr. Thomas, both suggests that it was unlikely that a public enquiry into someone's conduct was ever contemplated, and is wholly unfair, removing as it does the usual right to address a tribunal after the evidence has been heard. Assuming that the coroner correctly found the ambit of his jurisdiction, there seems to me nothing in this point. The provision may be undesirable if a detailed enquiry into an individual's conduct is justified by the legislation, but if the legislature sees fit to include it, so be it. In practical terms I see little difference between this and the prohibition on legal representation before certain tribunals. A layman can add very little to what he says in evidence.
27. In my judgment Dr. Bascombe was not treated unfairly. This ground must fail.
28. I turn then to examine the extent of a coroner's jurisdiction. It is common ground that a coroner's enquiry is a thorough fact finding enquiry but is not concerned to find or apportion guilt or fault : R v. South London Coroner, ex parte Thompson (1982) Times L.R. 372. Mr. Thomas argued that such an enquiry admits of asking a person what he did or did not do, why, and what he had in mind; it does not admit of going on to ask questions aimed at discrediting his actions or of leading other evidence with that purpose. The facts thus established will speak for themselves. An evaluation of a person's conduct is beyond a coroner's remit.
29. Mr. Whaley said that it would be wholly artificial to draw a line there. It is permissible for a coroner to go on and lead evidence that is relevant to establishing a cause or contributory cause of death. Provided the evidence is adduced for that purpose the fact that it may overlap with the possibility of fault or negligence on the part of a witness is unfortunate. An evaluation of a person's conduct, judged if necessary in relation to what are the reasonable standards of such person's calling or profession, is inevitable if a proper and thorough enquiry into the cause of death is to be made.
30. The coroner's jurisdiction is to be found, prima facie, in s. 6 of Cap. 14 which reads:
"(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 the Colony or is brought into the Colony, 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, with or without a view of the body as he may think fit, and may determine the cause of death."
31. Mr. Thomas argued that "determine" relates only to "cause of death" and not to "circumstances connected with the death". "Circumstances" he said are included only in so far as they may assist in determining cause. It is not clear, however, what is encompassed by "circumstances". The section has a broad meaning and, in order to ascertain its limits, resort may be had to the Rules.
32. Mr. Whaley contended that, unless there is some indication in the Ordinance to the contrary, which there is not, the words of S. 6 should be given their plain and ordinary meaning. The words give, and were intended to confer, a broad jurisdiction to carry out a full and thorough enquiry. There is no need to find a limit to "circumstances" which admit of no ambiguity.
33. I find myself unable to accept that contention. In my experience, "circumstances" is commonly used as a catch-all of no great precision. Whilst I accept, as does Mr. Thomas, that there was intended by the legislature that there should be a full and vigorous examination of the cause of a death, I cannot accept that there was intended an almost carte-blanche on the part of a coroner to examine, as the coroner here put it, "all aspects of the death" - p. 25. To accept the latter, would mean a quasi-commission of enquiry if a coroner was so minded.
34. It is permissible therefore to look at the Rules as an aid to construction: Hanlon v. The Law Society (1981) A. C. 124, where at p. 193 Lord Lowry said :
"My Lords, when these regulatory provisions are so clearly relevant, it it pertinent to ask how far they are admissible for the purpose of construing section 9(6).
A study of the cases and of the leading textbooks (Craies on Statute Law, 7th ed. (1971), p. 158 Maxwell on Interpretation of Statutes, 12th ed. (1969), pp. 74-75, Halsbury's Laws of England, 3rd ed., vol. 36 (1961), para. 606) appears to me to warrant the formulation of the following propositions:
(1)
Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous.
(2)
Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires.
(3)
Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation.
(4)
Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former.
(5)
The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify.
(6)
Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act."
35. Mr. Thomas said that propositions (1), (3) and (4) are relevant. I reject (4), the Rules having been made some 2 years after the Ordinance came into effect.
36. Relevant Rules are :
"23. The proceedings and evidence at an inquiry shall be directed solely to ascertaining the following matters -
(a)
the identity of the deceased;
(b)
how, when and where the deceased came by his death;
(c)
the persons, if any, to be charged with murder, manslaughter, infanticide or causing death by reckless driving, or of being accessories before the fact should the jury find that the deceased came by his death by murder, manslaughter, infanticide or reckless driving;
(d)
the particulars for the time being required by the Births and Deaths Registration Ordinance to be registered concerning the death.
24.
(1) Neither the coroner nor the jury shall express any opinion on any matters other than those referred to in rule 23.
(2) Notwithstanding paragraph (1) the coroner or the jury may make a recommendation designed to prevent the recurrence of fatalities similar to that in respect of which the inquiry is being held.
30.
No verdict shall be framed in such a way as to appear to determine any question of civil liability."
37. These, said Mr. Thomas, tend to confine an enquiry and evidence to particular matters rather than permit an open-ended examination of every circumstance connected with the death. Rule 23 contains specific language restricting the enquiry "solely" to certain matters. In particular para. (b) does not refer to "why" or "by whose fault. Whilst para. (c) does raise questions of evaluation of conduct, it is limited to specific criminal offences.
38. Rule 24(1) is in strong language restricting opinion effectively to matters contained in Rule 23 (b) unless para. (c) is also applicable.
39. Rule 30 provides not merely that a verdict shall not determine civil liability but that it shall not even be framed in such a way. A fortiori, argued Mr. Thomas, no question should be framed which appears to establish such liability nor should evidence be led for such a purpose. If this approach is right, individuals will be encouraged to give an honest account of what happened, which can only be in the public interest.
40. The Rules show therefore that the Chief Justice, who is the rule-making authority, was anxious that an enquiry should not become entangled in questions of civil liability. The only question to be determined is how and not why a death occurred.
41. Mr. Thomas said that, if that argument is wrong, one would have expected better provision for the rules of natural justice and conduct of the proceedings. In the absence of, indeed, because of the exclusion of certain rights, it is unlikely that a public examination of conduct was contemplated.
42. I have already referred to rules 15 and 16. In addition to the lack of provision to notify a person of any allegations about his conduct, Mr. Thomas pointed out that there is no other reference to person and conduct in the Rules. Therefore those 2 rules can only relate to rule 23(c) and, together, do not confer a general power to call in question the conduct of anyone outside of the matters laid down in rule 23. To hold otherwise would be inconsistent with rule 24 (1).
43. Again, I have referred already to rule 28. Mr. Thomas made the additional point that a person caught by rule 23(c) will have an opportunity to answer any charge later on. It is unfair that a person can be brought into a public enquiry, questioned about his conduct with a view to obtaining damaging evidence but not have the opportunity to address the tribunal at the conclusion of the evidence.
44. This case, said Mr. Thomas, is a perfect illustration of the unsatisfactory situation that can arise if a coroner has a wide jurisdiction. Dr. Bascombe was, by the verdict of the jury, effectively "acquitted" of any fault or blame because of the time limit factor. Much criticism was, however, made of him and that criticism remains largely unresolved, particularly in the mind of the public at large.
45. In Ex parte Minister of Justice; Re Malcolm; Re Inglis and Coroners Act 1960-1963 (1965) N.S.W.R. 1598, McClemens J. was reviewing the sufficiency of an enquiry that found the cause of death in a man, who had become seriously ill at work, to be pneumonia. At p. 1604, he said :
"There is, however, another reason why, in my view the enquiry should be quashed and a further inquiry had. The problem of causation has bedevilled philosophers for centuries and will do so in the future. If a man is knocked down by a car and the injury to his system is such that it causes heart failure, does he die from injury or from heart failure? If a senile person who has been sinking for weeks slowly into death contracts a terminal pneumonia and that actually carries him off, does he die of senile degeneration or does he die of terminal pneumonia? Without examining such things as precipitating causes, contributing causes, cause sine qua non and all the other elements of causation, suffice it to say that I think where the Coroners Act speaks of the cause of death it means the real cause of death, namely, the disease, injury or complication, not the mode of dying as e.g. heart failure, asphyxia, asthenia, etc. In this case, obviously, the pneumonia was not the real cause of death, this was merely a final result operating on a man who was suffering from a bed sore, bladder infection, secondary infection from the bed sore, who was inert, vegetative, and incontinent of urine and faeces. But were these things in him caused by the inhalation of poison gas? They might have been, they might not. If what really brought him to this pass was "poisoning" and hence caused the death then the poisoning can be fairly said to be the real cause of death ..... the following observations from Jervis on Coroners, at p. 83, are important : -
All deaths can in a sense be regarded as natural. This is true in a philosophic sense in that it is part of man's lot to die. It is also true in a medical sense in that in all cases death is brought about by the failure of one or other of man's organs. In order, therefore, to distinguish between one sort of death and another it is necessary to consider not the terminal cause of death but the cause which was the real cause of death. Difficult legal and medical questions may be raised in deciding how far back in the chain of causation a coroner should go in considering what was the real cause of death .... It is suggested that in so far as the terminal cause of death directly and consequentially follows from a definable event the death should be regarded as being caused by the definable event.
"Other difficulties arise where there are two or more causes to which the death may be due. Here the coroner must rely mainly on the medical evidence gained from a post-mortem examination to determine which was the real cause of death.
"Further and even more difficult questions arise where a person is dying from some factor, but there then occurs a novus actus interveniens, i.e. a new and final cause of death. Thus a person may be shot and would die in any case from the wound: an operation is performed in an attempt to save his life but the person dies during the operation from shock or haemorrhage. Should the death be regarded as being caused by the shot or by the operation? Where the operation was rendered necessary by the wound and was properly performed, the law will hold the cause of death to be the wound and, in appropriate cases, a verdict of murder will result. If an operation is performed on a person suffering from some disease such as cancer and the person dies, it is suggested later that there are arguments in favour of the same test being applied and that, if the operation is properly performed and is necessary, the death should be regarded as being due to the cancer, the operation being incidental." "
46. Mr. Thomas contended that the coroner's duty is to establish the real or effective as opposed to the medical cause of death and that an enquiry based on such a duty does not require investigation of contributory causes. Indeed, the Ordinance itself speaks of the cause and not causes. In this case, he said, the effective cause of death was clearly the introduction of nitrogen into the hospital's system and ultimately into Mrs. Boyde. There was no warrant for investigating what might have happened thereafter, only what did happen.
47. Just as the problem of causation has bedevilled philosophers, so has the verdict "lack of care" bedevilled lawyers. It appears that in Hong Kong there are 2 schools of thought amongst coroners - one, that of Mr. Sinclair; the other, that the verdict is restricted to a death that occurs because of starvation, exposure or similar causes brought about by self-neglect or the failure of other persons properly to look after the deceased. The former, it is thought, has contributed to the view that a coroner may legitimately evaluate conduct. The verdict was examined with some care by a Divisional Court in R. v. Southwark Coroner, ex party Hicks (1987) 2 All E.R. 140. At p. 144, Croom-Johnson L.J. said :
"Whether such a verdict is either permissible or appropriate depends first on the meaning to be give to the word 'care'. The prime meaning is that of physical attention, preventing death from starvation, exposure, or bad nursing or medical care. Since the great extension in this century of the concept of a legal duty of care, breach of which may lead to an action in tort for negligence, there is now growing up the notion that 'lack of care' means also a breach of such a duty. we have had cited to us a recent case reported in The Times for 19 September 1985. A boy aged 6, a non-swimmer, was taken to the Serpentine lido in Hyde Park in a party of children. It seems the excursion was not properly supervised. He drowned and his body was recovered under a diving board. The jury returned a verdict of 'an accident aggravated by lack of care'. In another case reported on 5 July 1985, a drunken mother slept while her baby was savaged by the family alsatian dog. The jury returned 'lack of care'.....
The history of the verdict 'lack of care' indicates that it is appropriate only to the physical condition of the deceased as causing the death and should not be used to indicate a breach of duty by some other person. Questions of criminal negligence amounting to manslaughter were always a different problem, and now that they are out of the way the verdict of 'lack of care' can be given its original and proper meaning. It should generally be regarded as the other side of the coin to self-neglect, and consequently was an inappropriate verdict in the case to which I have referred of the child who drowned in the Serpentine. The verdict in that case of 'an accident aggravated by lack of care' was, in any event, illogical. The lack of care in supervising the bathing party may nave been the cause of the accident, but it did not aggravate anything at all.
Junior counsel for the applicant, in his, speech in reply, submitted that the lack of care which could form the basis of the verdict could be a legitimate method used by the jury of expressing a view that there was a culpable breach by someone of a legal or moral duty to take care of the deceased which would be distinct from the general duty of care on which the modern law of negligence is based. He listed a number of special relationships where the deceased would be dependent on that other person. Being in prison was one of them. There is no need to presuppose the existernce of such a range of duties. What the verdict of 'lack of care' presupposes is that some other persons had at least the opportunity of rendering care (in the narrow sense of that word) which would have prevented the death. There is no need to go beyond that, although in many circumstances such persons would have had a duty, either legal or moral. The opportunity should have been a real opportunity of doing something effective. This verdict should not be used as a means of levelling disguised criticism at people who do not act in an emergency or take a wrong or inadequate decision in such cases. I doubt if the inaction of the priest and the levite who passed by on the other side would have justified such a verdict, but if one regards the verdict, at its lowest, as reflecting a missed opportuhity, then 'lack of care' without naming names will not be in breach of s 4(3) or r 42. it. should not attribute blame or fault..... If the verdict is proper when, the deceased is not given enough nourishment by those caring for him it is also proper if the deceased is not given enough medicine. There is no difference. It may be a 'free-standing' verdict, on its own. Self-neglect is, after all, a free standing verdict (see R v Surrey Coroner, ex p Campbell [1982] 2 All ER 545 at 555, [1982] QB661 at 676-677)..... The word 'how' is wide and it is not possible to foresee every way in which someone may meet his death. Nevertheless, common sense indicates that if the death is caused by accident it it unlikely in the extreme that it will also have been caused by lack of care. In those cases where it is thought to be a possible verdict or part of a verdict, the jury should receive a very careful direction as to its meaning and the need for a clear causal connection between the lack of care and the death.
In the case of Keith Hicks my conclusion is that if there had been evidence of insufficient medical treatment, a verdict of 'lack of care' might have been possible."
48. That case was cited with approval by another Divisional Court in R. v. Portsmouth Coroner, ex parte Anderson (1988) 2 All E.R. 604 Which concerned a soldier who suffered heart stroke during training. At p. 610 Mann J. said :
"The grounds on which relief is not sought complain of the failure to give a direction that 'lack of care' of itself was a possible verdict. In the light of Croom-Johnson LJ's observations such a complaint would seem to me to be untenable, despite what Surgeon Commander Buchanan said at the conclusion of his post-mortem report.
The argument of counsel for the applicant is for a direction that the jury could have, on the evidence, added to their verdict that death was aggravated by lack of care. I do not understand how death can be aggravated by lack of care, but I do understand how a cause of death can be so aggravated and I proceed on the basis that this is what the applicant intended by his application.
I ask myself: was the cause of Sapper Anderson's death aggravated by lack of care: I must to that return the answer NO. The absence of rehydration equipment did not aggravate the cause of death. The presence of the equipment might have ameliorated the condition which in fact led to death but its absence did not aggravate it. In my judgment, the coroner was correct in not raising the question of aggravation by lack of care. I add that I do not decide that aggravation by lack of case is never appropriate in a case of accidental death but, like Croom- Johnson LJ, I think that such a case is unlikely in the extreme: see R v Southwark Coroner, ex p Hicks [1987] 2 All ER 140 at 147, [1987] 1 WLR 1624 at 1634."
49. Earlier, yet another Divisional Court had considered whether such a verdict conflicted with the equivalent of rule 28 of the Hong Kong rules; R. v. Surrey Coroner, ex parte Campbell (1982) 1 Q.B. 661. At p. 675 Watkins L.J. said :
"We must now decide whether, on the facts, the coroner has exceeded or failed to exercise his proper jurisdiction. Section 4(3) of the Act of 1887 requires a coroner and his jury to inquire 'who the deceased was, and how, when, and where the deceased came by his death.' If a coroner withdraws from the jury a verdict which should be open to them, he is improperly restricting their answer to the question, "How?" This would, in our view, be failure to exercise his jurisdiction. Mr. Sedley submits, and we agree, that in this case the coroner was apparently concerned hot to transgress rule 33 of the Coroners Rules 1953 as amended by the Coroners (Amendment) Rules 1977. That rule now reads:
'No verdict shall be framed in such a way as to appear to determine any question of - (a) criminal liability on the part of a named person, or (b) civil liability.'
It is immediately apparent that there may, in some cases, be a possibility of conflict between rule 33(b) and the duty under section 4 to inquire "how" the deceased came by his death. Mr. Sedley therefore submits that rule 33(b) is ultra vines. This apparent conflict is discussed in a passage in Jervis on Coroners, 9th ed. (1957), p. 179, in a section dealing with the verdicts of 'Self-neglect and lack of care.' The passage reads:
'The verdict of lack of care is recommended where a person who, owing to his inability to look after himself, is being cared for by others, dies and his death is due to starvation or exposure or similar causes brought about by the failure of such other persons to look after him properly. There is an obvious danger that such a verdict will conflict or appear to conflict with rule 33 of the Coroners Rules 1953, which forbids the verdict to appear to determine any question of civil liability. To avoid such conflict the verdict is careful to refrain from stating that the death was aggravated by the lack of care of any particular person or persons and merely states that it was aggravated by lack of care. There is, therefore, no suggestion that any person owed a duty of care towards the deceased breach of which would render that person liable for civil or criminal negligence.'
We agree with this comment. A verdict of 'lack of care by another or others' without more is clearly one which a jury is competent to find if the evidence warrants it without transgressing rule 33.
On this issue it seems to us that there may have been a misunderstanding between the coroner and the jury. It appears to have been the coroner's view that a verdict of lack of care would inevitably be understood to mean lack of care by the staff of the Ashford Remand Centre. The jury, on the other hand, seem to have been concerned about the lack of facilities and staff at the two hospitals which declined to keep, or admit, the deceased. Be that as it may, it is our view that on the facts of this case a verdict of 'lack of care' would not have contravened rule 33. It is therefore not necessary for us to decide whether the rule is ultra vires. But, we think we ought nevertheless to express our conclusion upon this point which is that Mr. Sedley's submission upon it is ill-founded. Such conflict as may in any given circumstance appear to arise between rule 33 and the duty to inquire "how" must be resolved in favour of the statutory duty to inquire whatever the consequences of this may be."
50. Accepting the final remarks of Watkins L.J., Mr. Thomas contended that a lack of care verdict is only appropriate where a deceased has been deprived of the essentials of life such as food, warmth or medicine. He said that it is the obverse of self-neglect and might more accurately be termed "want of care". Further, it can be the real cause or an aggravation of the real cause. However, the neglect or want of care must precede the physical condition leading to death. Thus, in the present case, although Dr. Bascombe was a link albeit unwitting in the chain by which Mrs. Boyde was given nitrogen, anything he did or did not do thereafter did not aggravate cerebral anoxia but only failed to ameliorate it.
51. Mr. Thomas also suggested that Watkins L.J. was there equating "circumstances" with facts, from which inferences may be drawn.
52. A recent New Zealand case (unreported) bore considerable similarity to this case: Louw v. McLean , High Court of New Zealand, CP. 445/87. An anaesthetist, who thought it probable his conduct was likely to be questioned, asked the coroner not to admit evidence which tended to discredit him or to establish some form of liability on his part. The coroner declined to make the orders sought. In dismissing the application for review, Hardie Boys J. said:
"Nonetheless, 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 edn 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 the evidence does not enable the Coroner to determine that, then he must not do so. But if it does, then I consider that it is part of his function to do so. This is not necessarily the same thing as allocating blame. That is not the Coroner's function. There are other means of doing that..... By the same token it would be wrong for the inquest to become a civil or a disciplinary trial. But 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". This was the view taken by Watkins LJ in R v Surrey Coroner, ex parte Campbell [1982] 2 All ER 545, 555, where in discussing a possible conflict between the duty imposed by s. 4 of the Coroners Act 1887 and the Rule
prohibiting the determination of civil or criminal liability, he said that the conflict "must be resolved in favour of the statutory duty to inquire whatever the consequences of this may be". As the same learned Judge observed in R v West London Coroner , the difficulty, if there be one, is usually capable of resolution by careful drafting of the finding. And he added:
'Interested parties may look at the circumstances of the case and seek to draw from them and the verdict an inference or inferences as to blameworthiness on someone's part for causing death. That is almost inevitable. It can be neither avoided nor legislated against. So long as on the face of the inquistion the verdict does not give the appearance of identifying by name or otherwise anyone as blameworthy for the cause of death, r. 42 is complied with.'
A similar kind of discretion is required in controlling the questioning of witnesses.
It follows that if, to use the terminology of the prayer for relief in the statement of claim, evidence is adduced the substantial purpose of which is to discredit the applicant, in the sense of showing that he was at fault, the Coroner will stop it, for the purpose of the inquest is not to discredit or to blame Dr. Louw, but to ascertain how Mrs. Hendrie died. 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. I have no doubt that the Coroner is quite able to deal with these points as they arise, to protect witnesses from unfair publicity by resort to his powers to prohibit publication (s. 16(1)), and to bring down a finding that is in accordance with, and within the confines of, his statutory function.
For this reason, and because the Coroner's ruling of 12 November neither contains nor threatens any error of law, and because it is quite impossible for me to foresee what may develop at the resumed hearing, I am satisfied that there are no grounds upon which the applicant should have relief."
53. "Procedures" as used there, said Mr. Thomas, relate to procedures laid down, e.g. the operating instructions of a particular piece of equipment. It is legitimate to see if they have been followed. That apart, he contended that the judge was there grappling with the line that a coroner has to draw, and clearly drew it where he himself asks me to draw it.
54. For his part, Mr. Whaley said that Louw equally clearly expressed his basic argument: that evidence may be led which may have the effect of indicating blame, provided it is led for the purpose of establishing cause. It is not permissible, he said, to limit the word "procedures" as contended for. Correct procedures must be determined in order to ascertain whether there was a falling short of proper standards and, if so, whether that contributed to death.
55. The lack of care verdict, he said, should likewise not be restricted. Nothing in Campoell prevented an evaluation of medical treatment as long as it is causally relevant, while the reference in Hicks to "bad nursing or medical care" put the matter beyond doubt. The principle, he said, is whether the person was responsible for the deceased's survival.
56. I find myself unable to accept this view of the "lack of care" verdict. I accept that the passages from the judgment of Croom Johnson L.J. in Hicks , which I have set out, are not perhaps as clear as Mr. Thomas suggested. However, the thrust, in my view, is of something falling far short of a legal evaluation of conduct. In the same case, Peter Pain J., after agreeing with Croom Johnson L.J., went on at p. 149 :
"It seems to me very proper that in such an inquiry the question whether there has been any lack of care should be considered. I reiterate what Croom-Johnson LJ has already said, that in this context the inquiry should be whether the prisoner has been properly cared for whilst in custody. It bears no relation to the question whether there was a duty of care in the Donghue v Stevenson sense(see M'Alister v Stevenson [1932] AC 562, [1932] All ER Rep I) and whether that duty or care has been breached."
57. In my judgment, "lack of care" means conduct on the part of a person who had some responsibility towards the deceased, which caused or contributed to the physical condition bringing about the medical cause of death. That conduct should be judged or evaluated according to the standards of the reasonable man, that is to say, the jury, rather than the standards as laid down by experts whose views may often be conflicting. In other words, would the members of the jury, having heard what happened, say "We would not have allowed the deceased to get into that state."
58. In reaching this conclusion, I have been at pains to bear in mind that a lack of care verdict flowing from evaluation of conduct might be permissible if the legislation defining a coroner's jurisdiction warrants such an evaluation. Having found therefore what constitutes such a verdict in the light of English authorities based upon English legislative provisions, I must not allow that to affect my construction of the Hong Kong legislation. If the Hong Kong legislation is of wider ambit, it may admit of a wider lack of care verdict.
59. Coming to the construction of the Ordinance, I think I can summarise the points made by Mr. Whaley without doing him an injustice :
1.
S.6 is not ambiguous, as I have already mentioned.
2.
even if resort must be had to the Rules, they are consistent with a broad interpretation of S.6.
3.
in particular, rule 23 is not concerned with findings or verdict but goes to the heart of what the enquiry is; rule 24(1) does not prohibit a wide investigation; rule 30 is to rule out any determining of civil liability when the investigation of the facts suggests that a person did not do that which he should or might reasonably be expected to have done.
4.
public policy expects a full enquiry so as to fulfil an important social need - see The Law Reform Commission of Hong Kong, Report on Coroners, passim.
5.
there are differences between Hong Kong's coronial legislation and that of other jurisdictions.
60. As the passage from Campbell shows, a coroner's jurisdiction in England is confined to the matters appearing in Hong Kong Rule 23(a) and (b). The English coroner is not enjoined, like his Hong Kong counterpart, to enquire "into the cause of and the circumstances connected with the death". Nor has he powers to ascertain who, if anyone, should be charged with murder etc, or to make recommendations. He is, on the face of it, far more circumscribed.
61. With these points firmly in mind, I am nonetheless satisfied that the legislature did not intend that a coroner should carry out a wide-ranging investigation of 'all aspects' of a death involving, as it often seems to do, a microscopic examination of the conduct of a person who may have made a contribution, or been a link in the chain leading, to death. Such an enquiry entails the expenditure of much time and money. I do not think such expenditure of public funds justified when there are so many professional, disciplinary and watch-dog bodies to follow up any suggestion of improper conduct or matters of public concern that the evidence may produce. And there is certainly no warrant for an individual having to mount an expensive defence of his reputation.
62. I find it unrealistic to draw the line where Mr. Whaley asks me to draw it. For all practical purposes, an enquiry conducted as this one is a trial of the liability of the person or persons under attack in the strict civil sense. Duty of care (usually undisputed, I imagine), breach thereof which involves establishing appropriate standards and whether there has been a falling short of these standards, and finally whether any breach caused or contributed to the death, must necessarily be examined. However it is dressed up, such an enquiry is not just an unfortunate overlap into the field of civil liability, it is the same exercise. The only real difference I can see is that an enquiry, by law, does not after all that name anyone.
63. In my judgment, a coroner is charged with finding the effective cause of death. That involves finding the facts - what was done, what was not done and why. Such findings will undoubtedly show a person in a bad light from time to time. No doubt inferences may be drawn, as watkins L.J. accepted. The coroner must not then go on to evaluate conduct to see if there may have been some contributory cause of the death when the effective cause will usually be plain and obvious.
64. Having come to this conclusion, I am satisfied that the lack of care verdict, as I earlier found it to be, is equally applicable in Hong Kong. I venture to suggest it might more appropriately be termed "want of common care".
65. I do not, however, rule out the evaluation of conduct entirely. Clearly it is of crucial importance in relation to the possible criminal charges. It may also be crucial in determining whether some intervening factor was the effective cause of death - see Malcolm, Inglis . Thus, if Mrs. Boyde had died during the operation from a cause other than that found, it might well have been proper to evaluate the surgeon's or Dr. Bascombe's counduct.
66. In the present case, the coroner did not have the benefit of my view of a lack of care verdict. Had he done so, I have no doubt the enquiry would have taken a very different course. He would have appreciated that the supply of nitrogen effectively led to the anoxia, through no fault of Dr. Bascombe although of course he was a link in the chain of causation. He would have appreciated that there was no lack of care as I have now defined it. He would largely have confined his investigation to the supply of nitrogen - and indeed he spent much time on that.
67. It is possible, of course, that as the evidence came out the coroner might have felt constrained to investigate Dr. Bascombe's conduct more vigorously. Indeed, in the course of any enquiry the evidence may warrant the investigation of someone hitherto largely uninvolved. If so, the coroner has ample powers to adjourn the enquiry, notify that person (preferably providing details of what is alleged) and resume the enquiry when that person has had a reasonable time to prepare and respond.
68. It follows therefore that I think the coroner misdirected himself in dealing with Dr. Bascombe as he did. I do not however propose to grant the declaration sought. From what has gone before, Dr. Bascombe is vindicated in the approach he adopted before the coroner while coroners generally nave, I hope, some guidance as td their jurisdiction for the future. The declaration would be personal to Dr. Bascombe and, in the circumstances, would be otiose and academic.
(N.J. Barnett)
Representation:
Mr. M. Thomas, Q.C. & Mr. P. Graham instructed by Johnson, Stokes & Master for Plaintiff
Mr. B. Whaley, S.C.C. & Mr. Y.M. Liu, C.C. of Crown Solicitors for Coroner