Pope & Pope v State Coroner No. Scgrg-98-60 Judgment No. S6526

[1998] SASC 6526

POPE & POPE v STATE CORONER

Olsson J

This is an application for judicial review and injunctive relief against the Acting State Coroner.

In essence the plaintiffs seek to overturn her decision that a post-mortem examination be carried out on the body of their son Elliot Sydney Pope, whose tragic death occurred on 9 January 1998.  It is asserted on behalf of the plaintiffs that the direction given by the Acting State Coroner is, in the circumstances, beyond power or otherwise invalid.

I first turn to the relevant facts.

Elliot is the second child of the marriage of the plaintiffs.  He was born on 4 March 1997 and was thus approximately 10 months old at the time of his death.  He has an elder brother Oliver, who is 3½ years old.

The family resides at 84 Hawkers Road, Medindie.

At about 1.45 pm on 8 January 1998 both children were at home.  They were being looked after by their mother, the plaintiff Barbara Pope.  She was also baby-sitting a third child, who was a friend of Oliver.  All three children were, she said, playing outside.  They were “squealing and laughing”.

At one point Elliot sounded distressed.  His mother rushed out to find that he had fallen off his kickalong trike.  She comforted him and suggested that he come inside the house.  He did not wish to do so.  She, therefore, put him back on his trike and went back inside the house to make some telephone calls.

She made two such calls, after which she heard “the boys throwing things against the fence”.  She went outside to investigate.  Some ten minutes had elapsed since she had last gone outside.

When she exited the rear of the house she observed a red plastic bucket near a garden tap on the southern side of the property.  This was about 35 centimetres in height and 34 centimetres in diameter at the top.  It and the location of it near a child’s sand pit are depicted in the photographs comprising exhibit C1.

She at once saw what proved to be Elliot’s bottom and legs protruding from the top of the bucket, which contained a quantity of water.  He was all “floppy and cold”.  She carried him inside and telephoned the emergency number.  Under telephone instructions she administered CPR.

Ambulance officers arrived at about 2.02 pm and administered adrenalin.  A situation of cardiac arrest was noted on arrival.  After treatment some signs of life were noted and Elliot was conveyed to the Womens and Childrens Hospital.

Police officers were told by Elliot’s father that the bucket contained about 10 cms of water plus some sand in the bottom, when he first examined it after the incident.  Mrs Pope indicated that it was used for the dog’s water, but that, earlier in the day, the older boys had been washing their match box cars in it.  The top of the bucket would, she said, have come up to about Elliot’s chest level when he was standing alongside it.  The evidence indicates that the purpose of the sand in the bucket was to maintain its stability and prevent it from readily being tipped over.

Despite intensive medical treatment Elliot could not fully be resuscitated.  Ventilatory support was withdrawn on 9 January 1998, following an assessment of cerebral cortical injury deemed to be incompatible with reasonable neurological recovery.  Death was attributed by the medical staff to hypoxic ischaemic encephalopathy/asphyxia from drowning.

At the request of counsel assisting the Coroner, a medical report was prepared by Associate Professor Byard as to the need for an autopsy.  Professor Byard is a highly qualified and experienced paediatric pathologist on the staff of the Department of Paediatrics and Pathology of The University of Adelaide.

Having recited the relevant medical history, he had this to say:-

“In my opinion an unfortunate case such as this requires full coronial investigation, including an autopsy.  There are a number of reasons for this.  For example, the initial event was not witnessed by an adult and there does not appear to be any information or assessment of Elliott’s developmental level, specifically regarding his ability to climb into a bucket.  There is also no information on the ages and strengths of the other children present.

I do not have a police scene investigation or information on the height, stability and structure of the bucket (e.g. lidded or not).  It is also not stated how much water was present and what the precise position of the body was, when found.

I also do not have a detailed medical assessment of Elliot with respect to possible subtle injuries.  For example, I could not find a medical assessment of the retinas of the eyes for haemorrhage, the skin for bruises, or the bones for fractures.  Point 5, on the Emergency Room Assessment form, asking whether there is a history or record of previous injury, has not been filled out, and the only apparent record of attempted retinal examination states that they could not be visualised.  The only detailed documentation of possible skin lesions was performed by a nurse, not a doctor, on 8/1/98 who did note a lesion between the buttocks, but did not provide further assessment.

In cases such as this the clinical focus is understandably very strongly on the immediate medical problem, not on the initiating events.  Thus, although I consider that the medical management was appropriate, due to the nature of the case I do not believe that there has been an adequate assessment of Elliot to exclude occult injury, or to definitely rule out the presence of rare medical conditions.  In my experience there are a number of conditions of the heart, liver, blood vessels, airways and brain which can remain clinically undetected until an autopsy is performed.  Examples include holes in the heart, abnormally situated blood vessels and bleeding into the brain.  It is well known in the literature, and has also been my experience, that the clinical diagnosis may be changed in a significant percentage of cases after an autopsy has been performed.  It should also be recognised that accuracy of diagnosis is improved the earlier an autopsy is performed after death.  Scene reconstruction is also an important part of the paediatric forensic autopsy which helps to establish the plausibility of the proposed fatal episode.  It is also possible that there may be product safety issues involved.

In a study that I performed at the WCH in 1990 of 58 autopsies of children who had drowned, 10% had additionally underlying medical problems that could have initiated the drowning episode or caused death due to alternative mechanisms.  In two cases the condition was only identified at autopsy.  An autopsy with full radiological assessment will also be able to exclude/identify hidden bone fractures that would not be obvious clinically.  Deep soft tissue and abdominal organ haemorrhage may also not be detected clinically but may be quite obvious at autopsy.

Although the autopsy results may support the clinical conclusions in Elliot’s case, until a full investigation with an autopsy is performed there will remain many unanswered questions.  My experience in similar cases of sudden unnatural infant death has been that the formal exclusion of possibilities other than accidental death is often later appreciated by families of the deceased despite an initial reluctance to have an autopsy.  This may be of particular value for the family in excluding the possibility of inherited disease.

While drowning in a bucket is a known danger to toddlers, it should be recognised that it is a rare event.  For example, local data demonstrate that of 63 drowning deaths in children under the age of 16 years who were autopsied at the WCH from 1963 to 1996, only one drowning in a bucket was found in 58 of the 63 cases where the circumstances of death had been recorded.  Reviewing the medical literature from 1966 to 1998 on Medline revealed only 5 reports detailing such cases.  In a discussion in the Journal of the American Medical Association entitled ‘Accidental Drowning of Toddlers in Buckets’ (JAMA 1990; 264:1407) it was stated that ‘It must be emphasized that these cases need to be thoroughly investigated through a cooperative effort by the medical examiner, law enforcement, and social services.’  Accepted international practice is, therefore, that these cases undergo full autopsies.  I would be unwilling to attribute the probable HIE to drowning in the absence of an autopsy.

In summary, an autopsy in this case will be able to:

1)     Establish the cause of death;

2)..... Establish beyond doubt the absence/presence of certain kinds of injuries;

3)Exclude/identify significant underlying, possibly inherited, conditions or diseases;

4)..... Provide toxicological information;

5)Clarify the lack of contribution/possible contribution of others at the scene, eg the other children, to the death.”

.................. The plaintiffs, who hold deeply religious beliefs, objected to the conduct of an autopsy and made strong representations to the Acting State Coroner that this was both unnecessary and contrary to their religious convictions.

.................. After considering all of the relevant material the Acting State Coroner felt constrained to order the conduct of such a procedure.  She signed a direction to that effect on 12 January 1998.  The original of that direction is still on file and is not, at this stage, directed to any specific medical practitioner.  I infer that it has not been completed in that respect, pending the outcome of these proceedings.

.................. The present proceedings seek to challenge the propriety of the decision of the Acting State Corner to give such a decision.

.................. Section 12 of the Coroners Act, 1975 (“the Act”) stipulates that an inquest may be held (inter alia) in order to ascertain the cause or circumstances of the death of any person “by violent, unusual or unknown cause’.

.................. The power for the State Coroner to order the conduct of an autopsy is conferred by section 13(1)(e) of the Act.  This section provides that:-

13.    (1)     Subject to this section, a coroner may, where the coroner believes on reasonable grounds that it is necessary for the purposes of an inquest or the determination of whether or not an inquest is necessary or desirable -

(a).... enter at any time and by force, if necessary, into or upon any place or thing, where the coroner believes there is the body of a dead person, and view the body, or issue his or her warrant authorising some other person to exercise such powers;  or

(b).... issue his or her warrant for the removal of the body of a dead person to such place as the coroner directs;  or

(c).... enter at any time and by force, if necessary, into or upon any place or thing, and inspect and remove anything in or upon that place or thing, or issue his or her warrant authorising some other person to exercise such powers;  or

(d).... with the consent of the Attorney-General, issue his or her warrant for the exhumation of the body of a dead person;  or

(e).... direct a medical practitioner to perform a post-mortem examination of the body of a dead person;  or

(f)..... direct a medical practitioner, or some other person whom the coroner considers sufficiently qualified, to perform an examination or a test.”

There can, in my view, be no question that the death of Elliot occurred in unusual circumstances which would warrant the holding of an inquest, if the State Coroner deemed it appropriate to convene one.  Until cause of death can definitely be confirmed it might also be argued that the cause or circumstances of death, in the broad sense of that expression, is unknown.  No one saw the actual incident and what actually occurred is the product of inference.

Mr Coppola, of counsel for the plaintiffs, took, as his initial point, that it simply could not be said that the cause or circumstances of Elliot’s death were unusual.  It was, he said, patent that Elliot had drowned by accidentally falling into the bucket.  This type of mishap was clearly documented in the medical literature and could not, in the relevant sense, be said to be unusual.  It was a simple case of death by drowning.

In my opinion this submission misconceives the plain intendment of the Act.

First, it must be stressed that section 12 does not restrict itself to consideration of the literal cause of death.  No doubt death by drowning, per se, is not unusual.  However, the statute also directs its attention to the circumstances of death.

The word “unusual” is to some extent ambulatory in meaning and derives its construction from the context in which it appears.  However, the essence of the expression is that it connotes the existence of something out of the ordinary.  (See, for example, K v Cullen (1994) 126 ALR 38, Mooy v Carter (1986) 3 MVR 352, Davidson v Registrar of Motor Vehicles (1989) 8 MVR 421). The medical evidence before me clearly reveals that, whilst the occurrence of young children drowning in buckets is documented, the incidence of such events is, nevertheless, rare. This was, therefore, patently, an event to which section 12 of the Act was capable of application.

The principal issue which arises in the instant case is as to whether the direction here sought to be impugned was the consequence of the formation by the Acting State Coroner of a belief, on reasonable grounds, that an autopsy is necessary for the purposes of an inquest into Elliot’s death, or the determination of whether or not an inquest into that death is desirable or necessary.

The formal instrument of direction, as signed by the Acting State Coroner, is not specific as to which of two alternative bases is relied upon.  The body of it is expressed as under:-

“WHEREAS I believe on reasonable grounds that it is necessary for the purposes of an inquest or determination of whether or not an inquest is necessary or desirable that a post-mortem examination or special examination be performed on the body of Elliot Sydney POPE now lying at Womens & Childrens Hospital Mortuary now by virtue of the provisions of the Coroners Act, 1975, and all other enabling powers, I direct you personally and with all convenient speed to make:

(a).... a post-mortem examination of the said body and as soon as reasonably possible report thereon to me;

(b).... an examination of such samples or specimens arising from the said post-mortem as you consider necessary for the purposes of an inquest or determination of whether or not an inquest is necessary or desirable and as soon as reasonably possible report thereon to me.”

As no actual inquest has, at this point, been embarked upon, it must be taken that it is intended that a direction be given in order to enable the Acting State Coroner to formulate a view as to whether a formal inquest ought to be held.

Both parties not only placed medical reports written by Drs Keeley and Byard before me, but also called them to give oral evidence.

I do not find it necessary to traverse this material in detail, although I have considered it with care.

It seems to me that what has been said by the two medical experts simply reflects the perspectives of their specialties.  Both were excellent witnesses.

I entertain no doubt that Dr Keeley bona fide and reasonably holds the view, based on his clinical findings, that Elliot accidentally drowned as a consequence of falling into the subject bucket.  However, that opinion necessarily depends for its efficacy on an unqualified acceptance of factual assumptions outside his sphere of knowledge and expertise.  Moreover, he did not pretend to conduct a full forensic examination of Elliot, either before or after his death.

Professor Byard points out, on the basis of his own personal experience and researches of the literature, that only a full post-mortem examination can both confirm the precise cause of death and also reveal whether there are any physical indicia which point to the possibility of pure accidental death by drowning, by way of contrast with the possible involvement of others such as the other children or the child’s parents.  His report and evidence on this score are compelling and do not here require repetition.

As I read the correspondence passing between the Acting State Coroner and Elliot’s father, the former states that the autopsy is required to establish the precise cause of death in the context of the making of a determination as to whether or not an inquest is necessary or desirable.

Mr Coppola seeks to argue that the reason expressed by the Acting State Coroner in the correspondence clearly reveals that the direction has been given for an impermissible, collateral purpose.  He says that the determination of cause of death is a quite different issue from the determination of whether or not an inquest is necessary or desirable.  The correspondence specifically adverts to the former and not the latter.

It seems to me that this submission ignores the context in which the statement is made.  It is abundantly plain, on a perusal of the relevant letter, that what the Acting State Coroner is attempting to convey to the male plaintiff is that it is necessary to determine the precise cause of death, by post-mortem examination, as part and parcel of the process of arriving at a decision as to whether an inquest ought to be held.

The submission made seeks, in quite unrealistic terms, to isolate out but one feature of the decision making process, without reading the correspondence in its entirety and in context.

Fairly read, this material renders it plain that, in order to determine whether the death and the circumstances in which it occurred fall within the purview of section 12 of the Act, the Acting State Coroner requires the conduct of a post-mortem examination to determine cause of death and provide necessary forensic information with which to make an informed decision.  This purpose clearly falls within the ambit of section 13(1)(e).

I consider that the only point raised on behalf of the plaintiffs which has validity is that section 13 of the Act requires the issue of a direction to a specific medical practitioner, who must be named in it.  For the reason already identified, the original document signed by the Acting State Coroner and held on file does not satisfy this requirement.  It will need to be completed in this respect before it has any validity.

In the foregoing circumstances, the plaintiffs are not entitled, in law, to maintain their objection to what is proposed.  Injunctive relief is discretionary.  In my opinion, it is not appropriate to issue any injunction based purely on the present absence of a nominated medical practitioner in the proposed direction.  This is a matter which can simply be attended to by the Acting State Coroner, by completing the formal direction in the appropriate manner.

Subject to the giving of an undertaking to attend to that aspect the application must be dismissed.

In arriving at that conclusion I am sensitive to the extreme distress which this decision is likely to occasion to the plaintiffs.  Whilst my sympathy goes out to them at this sad time, they must appreciate that a decision must be made in this matter according to an objective application of the law.  Although their distress is natural, they may ultimately come to realise that the post-mortem examination is of value to them, as well as being necessitated by the wider community interest.