Plover v McIndoe
[2000] VSC 475
•20 November 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION Not Restricted
No. 8055 of 1999
| HEATHER JEAN PLOVER | Plaintiff |
| v | |
| ROWAN McINDOE | First Defendant |
| BLUE CROSS COMMUNITY CARE SERVICES (BALLARAT) PTY LTD | Second Defendant |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 3 November 2000 | |
DATE OF JUDGMENT: | 20 November 2000 | |
CASE MAY BE CITED AS: | Plover v McIndoe | |
MEDIA NEUTRAL CITATION: | [2000] VSC 475 | |
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Coroner’s inquest – Review of coroner’s findings – How death occurred – Identity of person who contributed to cause of death – Finding that no person contributed to the death of the deceased – Whether such finding was reviewable under s.59(1) of the Coroners Act 1985 – Whether finding in relation to how death occurred was “against the evidence and the weight of the evidence” in terms of s.59(3)(d) – Whether the Court should make an order under s.59(1) declaring such finding void because of “insufficiency of inquiry” – Whether the Court should order that the inquest be re-opened.
Coroners Act 1985; ss. 15, 19, 59.
Anderson v Blashki [1993] 2 VR 89.
Chief Commissioner of Police v Hallenstein [1996] 2 VR 1.
Kahn v West (unreported, decided on 17 December 1999).
Keown v Khan [1999] 1 VR 69.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms FV McNiff with Mr JP McMahon | Clayton Utz |
| For the Second Defendant | Mr CJ Blanden | Ebsworth & Ebsworth |
HER HONOUR:
Introduction
This is an application, commenced by originating motion on 24 December 1999, for
§an order pursuant to section 59(1) of the Coroners Act 1985 (“the Act”) that certain of the findings of the inquest held by the First Defendant (“the Coroner”) on 23 July 1998 into the death of Harry Kenneth Robertson on 16 February 1998 are void; and
§an order pursuant to section 59(2)(b) of the Act that that inquest be reopened.
There was no appearance for the Coroner.
On 28 February 2000 Mr Justice Beach ordered that the Second Defendant (“Blue Cross”) be joined as a defendant to the proceeding. The death of Mr Robertson occurred at Begonia Private Nursing Home (“Begonia”). “Begonia Private Nursing Home” is a registered business name of which Blue Cross is the proprietor. Blue Cross is the Approved Provider of Begonia pursuant to section 8-1(1) of the Aged Care Act 1997.
The relevant provisions of the Act are sections 15, 19 and 59, the relevant portions of which read as follows:
15.Jurisdiction of coroners to investigate a death
(1)A coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death.
(2)A coroner to whom a death is reported must, if it appears to the coroner that the death is or may be a reportable death, investigate it or report it to the State Coroner.
19.Findings and comments of coroner
(1)A coroner investigating a death must find if possible -
(a)the identity of the deceased; and
(b)how death occurred; and
(c)the cause of death; and
(d)the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1996; and
(e)the identity of any person who contributed to the cause of death.
(2)A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.
(3)A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.
59.New inquests and re-opening of inquests
(1)Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.
(2)The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner -
(a)to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or
(b)to re-open (or direct another coroner to re-open) the inquest and to re-examine any finding.
(3)The Supreme Court may only make an order if it is satisfied that -
(a)it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or
(b)there is a mistake in the record of the findings; or
(c)it is desirable because of new facts or evidence; or
(d)the findings are against the evidence and the weight of the evidence.
Section 19(1)(e) was repealed by section 10 of the Coroners (Amendment) Act 1999 (“the Amendment Act”). However, by virtue of section 18 of the Amendment Act, the repeal applies only to investigations into deaths commenced after 1 July 1999. Consequently, section 19(1)(e) remains relevant to the investigation of the death of Mr Robertson, the inquest having been completed on 23 July 1998.
The Coroner’s Record of Investigation into Death, (“the Record of Investigation”) in the form prescribed by the Coroners Regulations 1986 (“the Regulations”), reads as follows:
CORONERS REGULATIONS 1986
Form 1
No 488/98
RECORD OF INVESTIGATION INTO DEATH
I, Rowan McIndoe, coroner, having investigated the death of Harry Kenneth ROBERTSON
WITH INQUEST HELD AT BALLARAT ON 23rd JULY, 1998
AT 9.30 a.m.FIND THAT the identity of the deceased was Harry Kenneth ROBERTSON and that the death occurred on 16th February, 1998 at the Begonia Nursing Home, 207 Richards Street, Ballarat
from 1a Asphyxia
1b Compression of the neck
2Alcoholic dementia, emphysema, early lobar pneumonia, coronary artery disease.
In the following circumstances
The deceased was admitted to this Nursing Home, for long term care, approximately 4 weeks prior to his death. He brought a history of blindness, dementia (accompanied by florid behaviour), and cardiac problems.
On the morning of his death, he was given suppositories, and placed on a commode next to his bed. He was restrained on the commode, by tie rug, wrapped around his abdomen, the ends wrapped and tied to the rail of his bed. He was left, curtained and unobserved, on the commode, for approximately twenty minutes. At the expiration of that time, he was checked. His legs were seen protruding under the curtain. He was found, when the curtains were withdrawn, lying on the floor, with the rug tie caught around his neck. Immediately, the rug tie was cut, and his pulse checked, but there was none. Dr Hemming attended, and found Mr Robertson deceased. Subsequently, he was certified dead by Dr Steven Walker at Ballarat Health Services, at 1.00 p.m.
COMMENT
The findings are made consequent on the investigating officer, Senior Constable M. Fitzpatrick, tendering the brief without any investigation of witnesses. Prior to the tendering of the brief the next of kin met in conference with representatives of the Begonia Nursing Home, each of these parties represented by legal practitioners. At the conclusion of the conference, I was advised by those practitioners that questions had been raised by the next of kin, answered by the representatives of the nursing home, and that in the result, no questions were sought to be put in the Inquest Hearing. There appearing to me to be no questions of contribution to death raised on the materials in the brief, to which all parties had unrestricted access, I find that no person contributed to the death of the deceased.
DATED at Ballarat this 23rd day of JULY, 1998
(signed)
CORONER – ROWAN McINDOE
The application under section 59(1)
The plaintiff seeks first an order under section 59(1) of the Act that the findings of the inquest pursuant to section 19(1)(b) and (e) are void, on the grounds:
(a)under section 59(3)(a), that it is necessary or desirable that the Court make such an order because at the time of the inquest there was insufficiency of inquiry; and
(b)under section 59(3)(d), that those findings are against the evidence and the weight of the evidence.
Section 19(1)(e)
It is convenient to first consider section 19(1)(e). The only passage in the Record of Investigation which could be regarded as relevant to the duty of the Coroner to make a finding, if possible, under that provision, appears under the heading “COMMENT”. This passage is not included in the earlier portion of the report, commencing “I, Rowan McIndoe, coroner, . . . FIND THAT . . .”, and is not included in the place where the form prescribed by the Regulations requires such a finding to appear. However, that passage is expressed by the Coroner to be a “finding”, the words used by him being, “I find that no person contributed to the death of the deceased”. That being so, I would have difficulty in regarding it as anything other than a “finding” in ordinary parlance. I note that in Keown v Khan [1999] 1 VR 69 at 78, Callaway JA points out that the form prescribed by the Regulations
encourages discursive records that make it difficult to separate the coroner’s findings about the matters mentioned in s. 19(1), especially para. (b), from his or her discussion of the evidence. . . . Such discussion is the equivalent of the reasons that a court gives for its decision, but just as it is only the decision of a court and not its reasons that may be the subject of appeal, so it is the findings and not the discussion of the evidence that may be declared void under s.59.
See also the comments of Hedigan J in Chief Commissioner of Police v Hallenstein [1996] 2 VR 1 at 7, where His Honour concluded:
Since the right of appeal conferred by the Act is limited to review of the necessary findings, it is likely to add to the difficulties, and it has done so here, if findings and comment, which must in many cases be closely linked, are not disentangled by a clear and separate statement of the s.19(1) findings.
In any case, in the present context, the finding that no person contributed to the death of the deceased must be considered in the light of the decision of the Court of Appeal in Keown v Khan.That was an appeal from a decision of a judge of the Trial Division of this Court on an application under section 59 of the Act. The Court of Appeal held that a finding that a particular named person did not contribute to the cause of death was not a finding as to “the identity of any person who contributed to the cause of death” in terms of section 19(1)(e) and was thus not reviewable under section 59. Callaway JA, with whom Ormiston and Batt JJA agreed, said at 74-5:
The point of substance was earlier identified as whether the second respondent’s conclusion that the appellant did not contribute to the cause of death or that he acted in self-defence was capable of challenge under s.59. In whichever of those two ways the conclusion is expressed, it is not a finding as to “the identity of any person who contributed to the cause of death”. On the contrary, the statement in para. 51(b) of the record of investigation is a statement as to the identity of two persons who, in the second respondent’s opinion, did not contribute to the cause of death. . . . The matter may be tested by considering the position if the coroner had held the inquest with a jury and asked them to identify any person who contributed to the cause of death. An answer that the appellant did not contribute to the cause of death, or that he acted in self-defence, would have been non-responsive. [emphasis in the original]
Relying on Keown v Khan, Mr Blanden, for Blue Cross, submitted that, assuming that the Coroner had held the inquest into Mr Robertson’s death with a jury, as provided for in sections 49 and following of the Act, and the jury had been asked to identify any person who contributed to the cause of death, and had replied that no person contributed to the cause of death, that would equally have been a non-responsive answer. It would not be a finding as to “the identity of any person who contributed to the cause of death”. Accordingly, he submitted, the finding of the Coroner “that no person contributed to the death of the deceased”, was not one of the “findings of an inquest” and was not reviewable under section 59(1), which provides for an application to this Court for “an order that some or all of the findings of an inquest are void”.
In response to that submission, Ms McNiff, for the plaintiff, submitted that the hypothetical reply of the jury, that no person contributed to the cause of death, was a positive or affirmative finding, and thus was reviewable, while the finding in Keown v Kahn, relating to a specific named person, was an exculpatory finding. In the context, I find that to be a distinction without a difference. There is no finding, in the Record of Investigation, of “the identity of any person who contributed to the cause of death”. That being so, I accept the submission of Mr Blanden that, on the authority of Keown v Khan, there was no reviewable finding by the Coroner under section 19(1)(e). That provision requires a coroner investigating a death to make such a finding “if possible”. What the Coroner in this case has done is to explain, in effect why he did not find it possible to make any such finding.
Section 19(1)(b) – against the evidence and the weight of the evidence
The finding under section 19(1)(b) as to “how death occurred” appears in the Record of Investigation in the second paragraph under the heading “In the following circumstances”. It is convenient to consider first whether that finding is “against the evidence and the weight of the evidence” in terms of section 59(3)(d) of the Act. As Callaway JA said in Keown v Khan at 77, section 59(3)(d) was included in the Act on the recommendation of Sir John Norris QC in the general review of the Coroners Act 1958 (“the 1958 Act”) which he conducted in 1980. The recommendation was made because, as Sir John stated at paragraph 164 of his Report, there was:
at least one case on the files of the Attorney-General’s office in which a finding at an inquest attributing the blame for a fatal collision to a deceased driver appears on the depositions taken to be completely contrary to the weight of the evidence, though it could not be said there was no evidence on which the coroner could base his finding.
Callaway JA went on to say of section 59(3)(d) in Keown v Khan at 77-8:
All that was intended was that perverse findings might be set aside, i.e. findings for which there was no evidence or that no reasonable coroner could make. The scope of review is therefore the same as that with which, in Anderson v Blashki [1993] 2 VR 89 at 92, Gobbo J contrasted it by reference to Young v Paddle Bros. Pty. Ltd. [1956] VLR 38 at 41.
The passage there referred to from Anderson v Blashki reads as follows:
Section 59(3)(d) appears to enable a finding to be set aside as being “against the evidence and the weight of the evidence”. This imposes a heavy burden on the court since it involves the court in reviewing the whole of the evidence and examining for itself all issues of fact, including inferences from the evidence. It has to decide the matter for itself, despite conflicting evidence. . . .
The task faced by the court is a comprehensive and time consuming one and virtually involves a re-hearing, based on the evidence given below. This is a quite different method of review to that which the court is obliged to carry out in relation to decisions of magistrates in their ordinary civil and criminal jurisdiction. There, the court is not entitled to set aside findings of fact unless the finding was such that there was no evidence to support it, or it was a finding that no reasonable magistrate could have come to. See Young v Paddle Bros. Pty. Ltd. [1956] VLR 38, at p. 41.
I have reviewed the whole of the evidence which was before the Coroner, namely the materials in the investigation brief tendered by Senior Constable Fitzpatrick to which the Coroner refers in the Record of Investigation. I am satisfied that there is no basis on which I could be satisfied that the findings of the Coroner under section 19(1)(b) as to how death occurred are against the evidence and the weight of the evidence in terms of the manner in which that expression was interpreted by the Court of Appeal in Keown v Khan. Accordingly, the plaintiff’s claim on that ground fails.
Section 19(1)(b) – insufficiency of inquiry
There remains for consideration the claim of the plaintiff that, pursuant to section 59(3)(a), it is necessary or desirable that the Court make an order under section 59(1) declaring that the finding of the Coroner under section 19(1)(b) as to how death occurred is void because of “insufficiency of inquiry”. I note that this expression appeared in section 10 of the 1958 Act, the provision corresponding to section 59 of the Act, where the grounds for quashing an inquisition appeared in section 10(1) as “fraud rejection of evidence irregularity of proceedings insufficiency of inquiry or, for any reason it is necessary or desirable in the interests of justice that another inquest should be held”.
Counsel were unable to direct me to any judicial exegesis of the expression “insufficiency of inquiry”. However, in the course of his consideration of section 10 of the 1958 Act, Sir John Norris said at paragraph 159 of his Report, after referring to re Davis (1968) 1 QB 72; (1967) 1 All ER 688 and R v Cardiff Coroner (1970) 1 WLR 1475; (1970) 3 All ER 469:
The Court of Appeal in the former case said that where the ground on which it was sought to quash a coroner’s inquisition was an insufficiency of inquiry into the cause of the death, the court would quash the inquisition and order a fresh inquest only if it were probable that there would be a different verdict at the new inquest. The verdict there sought to be attacked was suicide. The court said that the only ground on which it could interfere in the circumstances of that case would be if it were of opinion that the verdict of suicide would be replaced by a different verdict if a new inquest were to be held. In the latter case a Divisional Court referred to this statement in Davis’ case but quashed the inquisition on the ground that there was insufficient evidence to justify the verdict of suicide.
Davis’ case was distinguished by the NSW Court of Appeal in Bilbao v Farquhar (1978) 1 NSWLR 528, as falling into a particular class where it was sought to set aside a verdict of suicide on the basis of other available evidence. As Moffitt P said (at p 540):
“Not unnaturally the Court applied a rule somewhat akin to that applied on an application for a new trial, and refused a further inquest which it did not appear would produce a different result.”
In Bilbao v Farquhar, where a fresh inquest was sought on the ground of insufficiency of inquiry, His Honour pointed out the absurdity which would result from applying the principle in question.
“If it is correct that a fresh inquiry cannot properly be ordered, unless the probable result of the failure properly to inquire can be determined before ordering the fresh inquiry, then the greater the insufficiency of inquiry and hence, prima facie, the greater the reason to order a fresh inquest, the less likely would it be that the Court would be entitled to order a fresh inquest.”
Sir John concluded:
With respect, I agree with the view of the New South Wales Court of Appeal.
Mr Blanden submitted that on a claim on the ground of “insufficiency of inquiry” the only issue for the Court was whether the Coroner had made sufficient inquiry of the materials which were in evidence at the inquest. In his submission the provision would be unworkable if a finding could be challenged on that ground by the admission of further material as a basis for a claim that the existence of that material, not located by the coroner, indicated that the coroner’s inquiry had been insufficient. The Court should consider a claim of “insufficiency of inquiry” by looking at the material before the coroner and considering whether, on that material, it was open to the coroner to reach the finding which was made. In my view, that submission involves a misapprehension as to the meaning and purpose of the ground of “insufficiency of inquiry”.
The duty of a coroner under the Act, broadly speaking, is to investigate those deaths which the Act requires to be investigated, and to make findings, if possible, in accordance with section 19. Sir John Norris, at paragraph 112 of his Report, spoke of:
. . . an appreciation of what in essence the inquest is. It is an inquiry conducted by the coroner. The proceedings are inquisitorial; they are not proceedings between parties.
The inquiry undertaken by the coroner must be sufficient for the purpose of investigating the death and making, if possible, the findings required by the Act. He cannot be limited to investigating the material placed before him by other persons. Section 44 of the Act provides that a coroner holding an inquest is not bound by the rules of evidence and may conduct the inquest in any manner the coroner reasonably thinks fit. Section 46 empowers a coroner holding an inquest to summon a person to attend as a witness or to produce any document or other materials, to inspect, copy and keep for a reasonable period any thing produced at the inquest, to order a witness to answer questions, and to do anything else the coroner believes necessary. The breadth of these powers serves to emphasise that the duty of the coroner is to inquire.
The power of the Court to declare that a finding of a coroner is void if the Court is satisfied that it is necessary or desirable to do so because of “insufficiency of inquiry” establishes a remedy where a coroner has failed to carry out that duty.
As the Coroner found, the tie rug, the tie of which caught around Mr Robertson’s neck, was used as a restraint. The plaintiff tendered evidence on affidavit by Ms Koch, Director of Undergraduate Studies at the La Trobe University School of Nursing, relating to the use of restraints on elderly patients, and I find that Ms Koch is qualified to give expert evidence on that subject. Affidavits were also tendered from Ms Brophy, a barrister with experience as an advocate for recipients of Commonwealth funded aged care services. Ms McNiff expressly abandoned any reliance on the affidavits of Ms Brophy (for reasons, as I understood her, which were unrelated to the accuracy, validity, or reliability of their contents), but relied on the documents exhibited to her second affidavit, being extracts from policy guidelines published by the Commonwealth Department of Health and Family Services in 1997 and 1998, relating to the care of residents in nursing homes . No request was made for either deponent to be available for cross-examination.
Three of the documents in the brief before the Coroner related to policies for the restraint of residents in nursing homes. They were the Begonia policy document on restraints, the Australian Society for Geriatric Medicine Position Statement on Physical Restraint Use in the Elderly, by Dr Leon Flicker, and the Restraint Protocol of the Victorian Health Department issued in November 1991.
It was submitted for the plaintiff first, that the Coroner, in his findings, should have referred to those documents which were before him in the brief. The Health Department Protocol should have demonstrated to him that the Begonia Policy was inadequate. The material on the brief, including the statements of witnesses, was not adequate to advise him how the Begonia Policy was communicated to staff, why a tie rug was used as a restraint, and how staff were educated as to the proper use of restraints and the associated dangers. Similarly, it was submitted, he should have extended his inquiry further to include reference to the 1997 and 1998 Commonwealth manuals, and an examination of current nursing practices in the field of restraint of elderly patients, as described in the affidavit of Ms Koch. The absence of appropriate policies or procedures at Begonia should have been part of the finding as to how death occurred. The Coroner should have made a thorough inquiry into the practices and procedures of Begonia with regard to mechanical restraints of patients, in the light of Commonwealth policies and current nursing practices, in order to find, if possible, whether those practices and procedures were part of the reason why Mr Robertson died. It was submitted that there had been a failure to employ and implement contemporary standards at Begonia, and that that failure formed part of the answer as to how Mr Robertson died and what contributed to his death.
In Chief Commissioner of Police v Hallenstein at 16, Hedigan J referred to:
the principle driving the obligation to pronounce the necessary finding, namely to state the essential facts found.
And later:
The English section provides that the verdict must say “how the deceased came by his death”. This has been interpreted to mean “by what means” and not “in what broad circumstances”. The application of this view of the meaning of the corresponding [provision], s.19(1)(b), would have materially limited the inquest to what it was really concerned with, the death of Yap.
Mr Blanden submitted, on that basis, that the matters which the plaintiff submitted should have been the subject of inquiry by the Coroner as to how death occurred fell within the description of “broad circumstances”, rather than “means”. He referred to the judgment of Warren J in Kahn v West (unreported, decided on 17 December 1999) where, after summarising extensive passages from the record of investigation which was before her, Her Honour said at paragraph 25:
On the basis of the matters set out in the record of investigation I am satisfied that the Deputy Coroner has properly found how the death of the deceased occurred as required of him pursuant to s.19(1)(b) of the Act, namely, by the shooting of the deceased by Constable Keown.
Mr Blanden submitted, and I accept, that those passages from Hallenstein and Kahn v West indicated the view of Hedigan J and Warren J that a finding pursuant to paragraph 19(1)(b) should be brief, rather than extensive.
A power to make comments is conferred on the coroner by section 19(2). The Coroner could have commented on the matters referred to by the plaintiff had he considered it appropriate to do so. But this Court has no power to review a decision by the Coroner to make or not to make comments pursuant to that power, or any comments so made. What is sought to be reviewed here is the finding of the Coroner pursuant to section 19(1)(b) as to how death occurred. The Coroner had before him appropriate and relevant materials relating to policies for the restraint of elderly patients in nursing homes. The fact that he chose not to refer to those materials in his finding is not, in my view, an indication of “insufficiency of inquiry”. The fact that he did not seek more materials than he had similarly does not indicate “insufficiency of inquiry”. His finding as to how death occurred was an account of the relevant events which took place on the morning of Mr Robertson’s death.
Hedigan J in Hallenstein was concerned with a finding under section 19(1)(e) and considered the law relating to causation, as being “applicable to the concept of contribution which, within the Act, is concerned with the causes of death and who contributed to it.” After referring to Fitzgerald v Penn (1954) 91 CLR 268 and E & MH March v Stramare Pty Ltd (1991) 171 CLR 506, His Honour said at 17:
The fact that some feature constitutes an essential condition of an occurrence in the “but for” sense does not mean that for the purpose of ascribing fault or responsibility it is necessarily to be regarded as contributing to that occurrence in a causal sense as a matter of either ordinary language or common sense. If this were not so, then Mrs Kirkwood who pressed the alarm button or the armourer who supplied the police officers with their loaded weapons could be regarded as contributors. But in the common law approach to contribution, they would not be so regarded. This is because their acts (or omissions, in other cases) are not such as could reasonably be regarded a playing a contributing part in causing the death.
The same can be said, mutatis mutandis, in the context of section 19(1)(b), of the policies and practices at Begonia with regard to the restraint of elderly patients. The fact that those policies and practices constituted “an essential condition. . . in the ‘but for’ sense” of the manner of Mr Robertson’s death does not mean that they could reasonably be regarded as falling within the rubric “how death occurred”.
Having considered the matter, I am not satisfied that it is necessary or desirable because of insufficiency of inquiry to make an order that the finding of the Coroner under section 19(1)(b) is void. The plaintiff’s first application accordingly fails.
The application under section 59(2)
The plaintiff then seeks an order under section 59(2)(b) of the Act that the inquest be re-opened. Section 59(2) does not expressly provide that a finding that some or all of the findings of the inquest are void is a necessary pre-requisite to an order under that provision. Nevertheless, it seems to me that that is the intention of section 59, read as a whole. That being so, having made no finding to that effect, my view would be that I have no power to order the re-opening of the inquest. If I am wrong in that, I nevertheless find no ground upon which to make such an order.
For the reasons given, the plaintiff’s applications fail. Counsel may wish to make submissions as to costs.
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