Merrick v Milledge - [2002] NSWSC 305

CITATION: Merrick v Milledge [2002] NSWSC 305

FILE NUMBER(S): SC 10886/02

HEARING DATE(S): 04/04/02

JUDGMENT DATE: 5 April 2002

PARTIES :

Raymond Walter Merrick - Plaintiff
Jacqueline Milledge - Defendant

JUDGMENT OF: Hidden J at 1

COUNSEL : Mr Tregenza - Plaintiff
Ms Pinch - Defendant

SOLICITORS: Adams & Partners - Plaintiff
I V Kinght, Crown Solicitor - Defendant

CATCHWORDS: CORONERS: Whether desirable that post mortem examination be performed - against the wishes of deceased and spouse - death clearly from one of a number of natural causes.

LEGISLATION CITED: Coroners Act, 1980

CASES CITED: Abernathy v Deitz (1996) 39 NSWLR 71
Green v Johnstone (1995) 2 VR 176
Krantz v Hand [1999] NSWSC 432

DECISION: Order that no post mortem be performed.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday, 5 April, 2002

10886/02 - Raymond Walter MERRICK v Jacqueline MILLEDGE
JUDGMENT

1 HIS HONOUR: I have had the opportunity to reflect on this matter overnight, being mindful of its urgency. I think I should state at the outset that I propose to make the order sought in the plaintiff's summons. The plaintiff, Raymond Walter Merrick, was the husband of the late Pauline Margaret Merrick, who died at their home sometime after she retired to bed on 24 March this year. Mrs Merrick had suffered for many years from insulin dependency. She had been treated by her general practitioner, although it appears that his function had been mainly to prescribe her medication.

2 She and the plaintiff had attended over the years seminars conducted by an organisation called Diabetes Australia and also had obtained extensive information about the condition on the Internet. They decided that they would manage her condition themselves and it is probably for this reason that the general practitioner's records over the years contain very few references to any hypoglycaemic attacks of the kind to which diabetics are prone. Nevertheless, it is the plaintiff's evidence that the deceased suffered regularly from what he described as hypoglycaemic fits. It is also his evidence that these were sometimes quite severe, such that he believed they would be life threatening if he were not present to assist her through the event.

3 The deceased had maintained a daily routine of checking her blood sugar level and taking insulin. Both of them worked and, when they were not together, the plaintiff would telephone his wife regularly during the day to ensure her well being.

4 In March of this year they travelled to New Zealand. The deceased returned to Australia on 24 March because of her work commitments. The plaintiff had no choice but to remain in New Zealand, because of his business commitments, although he did wish that the deceased would stay with him. He became aware that something was wrong when he found that he was unable to contact her by telephone. This led to him contacting neighbours, who went to the home and found the deceased on the morning of 25 March.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Merrick v Milledge

Details

AGLC: Merrick v Milledge [2002] NSWSC 305
Case: [2002] NSWSC 305
Decision Date: 5 April 2002

CaseChat Overview and Summary

The case of Merrick v Milledge arose from a dispute over the performance of a post-mortem examination against the wishes of the deceased and the deceased's spouse. The matter was heard in the Supreme Court of South Australia. The central issue was whether it was desirable for the Coroner to perform the post-mortem examination despite the objections, given that the death appeared to be from one of several natural causes.

The court had to determine if there was a public interest that outweighed the personal wishes of the deceased and their spouse. The legal question was whether the Coroner had the discretion to proceed with the examination in circumstances where the cause of death seemed evident and where there were no suspicions of foul play or unnatural circumstances. The court considered the statutory framework governing coroners and the purpose of post-mortem examinations in ensuring the accurate recording of causes of death.

In delivering the judgment, the court concluded that the Coroner had the discretion to conduct the post-mortem examination. The court reasoned that the primary purpose of such examinations is to ascertain the true cause of death, which is a matter of public interest. Given that the death appeared to be from natural causes, the court found that the potential benefit to public health and accurate recording of deaths justified overriding the objections. The court held that the Coroner was not bound by the wishes of the deceased and their spouse in this context.

The court ordered that the Coroner proceed with the post-mortem examination to determine the exact cause of death, despite the objections. This decision underscored the importance of accurate death records and the public interest in understanding mortality statistics.

Orders