Saraf v Johns
[2008] SASC 166
•23 June 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal)
SARAF & ANOR v JOHNS
[2008] SASC 166
Judgment of The Honourable Justice Debelle
23 June 2008
MAGISTRATES - CORONERS - POWERS OF SUPERIOR COURT - QUASHING AND CORRECTING INQUISITIONS AND VERDICTS: AND REVIEW
Coronial inquest into death of resident of nursing home – whether death was a “reportable death” – nature of appeal – grounds for interfering with Coroner’s finding – Court to correct a finding only where there is no evidence to support finding or finding was not reasonably open on evidence – whether Coroner’s recommendations were ultra vires – appeal allowed – recommendations invalid.
Coroners Act 2003 s 3, s 21, s 25, s 27; Coroners Act 1985 (Vic) s 3, s 15, s 59; Coroners Act 1980 (NSW) s 13(1); Coroners Act 1996 (WA) s 3; Coroners Act 1997 (ACT) s 13(1); Crown Proceedings Act 1992 s 9(2), referred to.
Keown v Khan [1999] 1 VR 69; re DG & The Adoption Act 2000 (NSW) (2007) 244 ALR 195, applied.
Anderson v Blaski [1993] 2 VR 89; Commissioner of Police v Hallenstein [1996] 2 VR 1, not followed.
Attorney-General v Sillem (1863) 2 H & C 58; 159 ER 242; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; Delaney v Staples [1992] 1 AC 687; Khan v Keown [2001] VSCA 137; Khan v West (2002) 131 A Crim R 111; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; National Insurance Co of New Zealand v Espange (1961) 105 CLR 569; R v Tennent (2000) 9 Tas R 111; Plover v McIndoe (2000) 2 VR 385; Taylor v Armour & Co Pty Ltd [1962] VR 364; Taylor v Hayes (1990) 53 SASR 282; Timbu Kolian v The Queen (1968) 119 CLR 47; WRB Transport v Chivell (1998) 201 LSJS 102; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; Young v Paddle Bros Pty Ltd [1956] VLR 38, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"reportable death"
SARAF & ANOR v JOHNS
[2008] SASC 166Miscellaneous Appeals
DEBELLE J: This is an appeal from findings and recommendations of the Coroner’s Court made following an inquest into the death on 18 July 2007 of Mrs Gladys Ruth Wells at the Brighton Aged Care Facility.
Neither the Coroner nor the Coroner’s Court appeared on this appeal. Instead, the Attorney-General exercised the power in s 9(2) of the Crown Proceedings Act 1992 and intervened on behalf of the Crown. That effectively provided a contradictor to the appellants.
The Brighton Aged Care Facility (“the nursing home”) was owned and operated by a company called Bresant Pty Ltd (“Bresant”) which trades as “Brighton Aged Care Facility”. The sole director of Bresant is Dr Jagdish Saraf. Dr Saraf and his wife, Dr Madhu Saraf, are two of the three shareholders in Bresant. Dr Jagdish Saraf and Dr Madhu Saraf are the appellants. The third shareholder is Saraf Nominees Pty Ltd. There is no evidence as to who controls Saraf Nominees Pty Ltd but it is reasonable to infer that it is controlled by one or both of the appellants.
Mrs Wells was a resident in the nursing home. At about 8.30 am on 18 July 2007 she was found dead in her bed by two carers employed by the nursing home, Ms Brown and Ms McKendrick. Ms Brown then contacted Ms Cockerell, a registered nurse also employed at the nursing home. Ms Cockerell confirmed that Mrs Wells had died. Later at about 2.00 pm that day, Dr Jagdish Saraf went to the nursing home and certified the death of Mrs Wells. Subsequently the appellants purported to complete and sign certificates under the Cremation Act 2000. A post-mortem was not conducted. Mrs Wells was cremated on 24 July 2007.
The Coroner conducted an inquest into the death of Mrs Wells. On 7 February 2008 the Coroner published his findings. He found that Mrs Wells had died as a result of an undetermined cause. In the course of his findings the Coroner found that the death of Mrs Wells was a reportable death within the meaning of the Coroners Act 2003. He said:
In my opinion the circumstances surrounding the discovery of Mrs Wells’ body were such that her death could be described as “unusual” because of the position in which she was found. Therefore I find on the balance of the evidence that hers was a reportable death.
The Coroner also found that it was inappropriate for the appellants to sign the cremation certificates for a patient or resident of the nursing home that they indirectly owned.
In addition to those findings, the Coroner made three recommendations. They were:
11.3I recommend that the Attorney-General consider the introduction of a Bill to amend the Cremation Act 2000 by extending the prohibition in section 6(5) to cover the certification of deaths in a nursing home in which a medical practitioner has a financial or proprietorial interest. In considering this measure, the Attorney-General may wish to consider other interests which might disqualify a doctor from certifying a person for cremation in particular cases.
11.4I recommend that the Medical Board of South Australia give consideration to whether the conduct of either of the Doctors Saraf was in breach of the Medical Practitioners Act. I have found their conduct to be inappropriate in the sense described in these findings. I make it clear that I do not in any way intend to pre-empt any finding of the Medical Board.
11.5I recommend that the Attorney-General consider these findings with a view to determining what action, if any, should be taken against any person pursuant to section 28 of the Coroners Act 2003 and section 6(4) of the Cremation Act 2000.
The power to make recommendations is provided by s 25(2) of the Coroners Act.
The appellants have appealed against both the findings and the recommendations made by the Coroner. There are a number of grounds of appeal. The grounds of appeal challenge the jurisdiction of the Coroner’s Court to have conducted the inquest and to make the recommendations as well as the findings and recommendations themselves. As the submissions on behalf of the appellants point out, the errors of the Coroner fall into three categories,
(i) his conclusions regarding the death as a reportable death;
(ii) the making of findings, suggestions and recommendations that are ultra vires;
(iii) the making of findings that were against the weight of the evidence.
The notice of appeal also asserts that the Coroner failed to accord the appellants procedural fairness.
A Reportable Death?
I deal first with the question whether the death of Mrs Wells was a reportable death. Section 21 of the Coroners Act prescribes the events in which the Coroner’s Court must hold an inquest. For present purposes, it is necessary to notice only s 21(1) which provides:
21 – Holding of inquests by Court
(1) The Coroner’s Court must hold an inquest to ascertain the cause or circumstances of the following events:
(a)a death in custody;
(b)if the State Coroner considers it necessary or desirable to do so, or the Attorney-General so directs –
(i)any other reportable death; or
(ii)the disappearance from any place of a person ordinarily resident in the State; or
(iii)the disappearance from, or within, the State of any person; or
(iv)a fire or accident that causes injury to person or property;
(c) any other event if so required under some other Act.
The effect of that provision is that, unless the Attorney-General directs an inquest into a reportable death, the State Coroner has a discretion to conduct an inquest into a reportable death. The Coroner is not able to conduct an inquest unless the death is a reportable death as defined. Section 3 of the Coroners Act defines the expression “reportable death”. Although paragraph (a) of the definition is the most immediately relevant paragraph, it is convenient to set out the whole of the definition.
reportable death means the State death of a person –
(a) by unexpected, unnatural, unusual, violent or unknown cause; or
(b) on an aircraft during a flight, or on a vessel during a voyage; or
(c) in custody; or
(d) that occurs during or as a result, or within 24 hours, of –
(i) the carrying out of a surgical procedure or an invasive medical or diagnostic procedure; or
(ii)the administration of an anaesthetic for the purposes of carrying out such a procedure,
not being a procedure specified by the regulations to be a procedure to which this paragraph does not apply;
(e) that occurs at a place other than a hospital but within 24 hours of –
(i)the person having been discharged from a hospital after being an inpatient of the hospital; or
(ii)the person having sought emergency treatment at a hospital; or
(f) where the person was, at the time of death –
(i)a protected person under the Aged and Infirm Persons’ Property Act 1940 or the Guardianship and Administration Act 1993; or
(ii)in the custody or under the guardianship of the Minister under the Children’s Protection Act 1993; or
(iii)a patient in an approved treatment centre under the Mental Health Act 1993; or
(iv)a resident of a licensed supported residential facility under the Supported Residential Facilities Act 1992; or
(v)accommodated in a hospital or other treatment facility for the purposes of being treated for drug addiction; or
(g) that occurs in the course or as a result, or within 24 hours, of the person receiving medical treatment to which consent has been given under Part 5 of the Guardianship and Administration Act 1993; or
(h) where no certificate as to the cause of death has been given to the Registrar of Births, Deaths and Marriages; or
(i) that occurs in circumstances prescribed by the regulations;
It is common ground that, although the nursing home may be a supported residential facility as defined, it is not required to be licensed under the SupportedResidential Facilities Act 1992 so that paragraph (f)(iv) of the definition has no application.
The Coroner’s Court does not have jurisdiction to conduct an inquest into a death unless the death satisfies the definition of a reportable death. In many cases, the facts will speak for themselves and in those circumstances the Coroner will have little difficulty in determining whether a death is a reportable death. Obvious instances are deaths that occur in the circumstances prescribed in paragraphs (b), (c), (d) and (e) of the definition. In the case of paragraph (a), however, the Coroner may need to make an investigation to determine whether the death results from any of the causes there listed. As a matter of practical reality, the only means by which the Coroner is able to determine whether the death falls within any of the causes listed in paragraph (a) is to conduct an inquest. The Act therefore requires the Coroner to determine the jurisdictional fact whether the death is a reportable death. If as a result of the inquest, the Coroner determines that the death satisfies any of the five causes listed in paragraph (a), the Coroner’s Court has jurisdiction to conduct the inquest. If the death does not fall within any one of those listed causes, the Coroner’s Court does not have jurisdiction. In a sense there is an unfortunate circularity but the scheme of the Act does not allow any alternative.
One consequence of this fact is that the Coroner might embark on an inquest believing that the death is a reportable death because it satisfied one of the kinds of causes listed in paragraph (a) but, after completing the inquest, finds that it results from another of the listed causes. As a matter of practical reality, unless it is manifestly clear that the death is not a reportable death, the Coroner has no alternative but to continue with the inquest. If, on completion of the inquest, the Coroner finds that, contrary to his original belief, the death was not, say, the result of an unexpected cause but the cause of death is unknown or satisfies one of the other causes listed in paragraph (a), the Coroner is at liberty to determine that the Coroner’s Court has jurisdiction.
The Solicitor-General submitted that it was appropriate to adopt a purposive construction of both s 21 and of the definition of “reportable death” so that, by necessary implication, the definition in paragraph (a) would read as if the clause “which appears to be” where inserted at the beginning of paragraph (a). The definition would then read,
reportable death means the State death of a person –
(a)which appears to be by unexpected, unnatural, unusual, violent or unknown cause…
I do not agree. Section 21 and the definition of “reportable death” can operate effectively in the manner already discussed. To accede to the Solicitor-General’s submission is tantamount to amending the Act to include additional words. To imply words in the way for which the Solicitor-General contends requires three conditions to be satisfied: re DG & The Adoption Act 2000(NSW) (2007) 244 ALR 195. First, it must be possible to determine the purpose of the statute. Second, it must be apparent that the eventuality is one that has been overlooked through inadvertence. Third, it must be possible to state with certainty the words that would have been added if the eventuality had not been overlooked. It is not possible to comply with at least the second and third conditions with the consequence that the Solicitor’s submission must fail.
With that background, I turn to the circumstances and cause of the death of Mrs Wells. When Mrs Wells was found in her bed on 18 July 2007, she was not lying in the bed but in a position that might be described as half in and half out of the bed. She was lying on her side with the trunk of her body on the bed but her arms and legs were hanging over the side of the bed. The bed was close to the floor being about 12 inches above floor level. The lower part of her face was leaning against a pole on the side of the bed. The bed pole was attached to the bed in a vertical position and so that she could use it to assist her to adjust her position in the bed. Ms Brown, one of the carers at the nursing home who saw her lying in that position, described the position in which Mrs Wells was found in these terms:
…her head was resting against the bed pole and, yes, I’m not sure but it just didn’t look right, it just wasn’t a natural position to lie in and, yes, that’s pretty much what I mean by that. Yes, it just didn’t look right.
Ms McKendrick, the other carer who found Ms Wells in that position, gave evidence that Mrs Wells was in an odd position but it was the kind of position that residents in the nursing home did get into from time to time. The registered nurse, Ms Cockerell, said that she had assumed that Mrs Wells had got into the position in course of dying. She did not think that there was anything unusual in the way in which she was positioned. The husband of Mrs Wells gave evidence that he had seen her in that position on many occasions.
The Coroner concluded that the death of Mrs Wells was a reportable death because it had resulted from an unusual cause. He said:
Having regard to the evidence of Ms Brown and Ms McKendrick, it is my view that there was something unusual about the position in which Mrs Wells was found. Ms McKendrick refers to displacement of the mattress and Mrs Wells’ feet being on the bed base. There is an involvement of the bed pole in some way. From this it follows that Mrs Wells’ death may have been “unusual” within the meaning of the definition. I am not suggesting that her death did in fact involve the bed pole – that can never be known given that Mrs Wells’ body was cremated and no autopsy was performed. However, the evidence is such that her death may have been caused by the position in which she was found; there were sufficient unusual features about her position that the bed pole may have been involved in some way. In my opinion these matters alone mean that there was an obligation to report her death pursuant to section 28 of the Coroners Act 2003. In so finding, I acknowledge that the Court must not make any finding or suggestion of criminal or civil liability. In my opinion, that prohibition does not prevent the Court from finding that a death may have been reportable.
There is no medical evidence to support the conclusion that the fact that Mrs Wells’ face was lying against the bed pole caused her death. In my view, while the position in which Mrs Wells was found would not have been either comfortable or desirable, it was not of a kind that could have led to the conclusion the cause of death was unusual. It is entirely consistent with the position an infirm person might get into as well as being consistent with the position that might have occurred in the course of dying. The medical evidence supported the latter conclusion. The evidence does not support the Coroner’s conclusion. For these reasons the death of Mrs Wells was not reportable on the ground that she had died by an unusual cause.
However, that conclusion does not mean that her death was not a reportable death within the definition prescribed by the Coroners Act. The Coroner went on to find that Mrs Wells had died “as a result of an undetermined cause”. For the reasons that follow I uphold that determination. I have already pointed out that, if the Coroner commences an inquest believing that the death is a reportable death but later, as a result of his investigations in the course of the inquest determines that his original belief is wrong and that the death resulted from another cause which satisfies the definition of a reportable death, the Coroner’s Court retains jurisdiction to proceed with the inquest. For the reasons to be given later, the finding that Mrs Wells died as a result of an undetermined cause is a finding that the cause of death was unknown. The death was, therefore, a reportable death.
The Right of the Appeal
The appellants did not appeal against the finding that the cause of death was undetermined. However, some submissions were made to that effect. It was contended that the Coroner should have found that Mrs Wells had died as the result of a heart attack. Before dealing with that contention, I note the scope of the right of appeal.
While s 27 provides a right of appeal, it says little as to the grounds on which this court should interfere with the findings of a Coroner’s Court. Plainly, the court will interfere with those findings if the appellant can demonstrate an error of law. The question in this case is on what grounds can the court interfere with the Coroner’s finding as the cause or circumstances of death or of other prescribed events the subject of the inquest.
Subsections (5) and (6) of s 25 do not materially assist. While subsection (5) invests the court with power to re-hear witnesses or receive fresh evidence if the interests of justice so require, it begs the question when the interests of justice require that step. Similarly, subsection (6) provides little assistance. While that subsection invests the court with a number of powers which, effectively, amount to the power to set aside the finding, it does not indicate on what grounds the court should do so.
Section 21 imposes a duty on the Coroner’s Court to hold an inquest to ascertain the cause or circumstances of, among other things, a death that is a reportable death. The cause of death is a question of fact that must, like causation in the common law, be determined by the application of ordinary common sense and experience: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515 and per Deane J at 522; WRB Transport v Chivell (1998) 201 LSJS 102 per Lander J at 106; Commissioner of Police v Hallenstein [1996] 2 VR 1 at 17. See generally I Freckleton, Causation in Coronial Law (1997) 4 JLM 289 at 291-292. In undertaking that task the Coroner is not limited by concepts such as “direct cause”, “direct or natural cause”, “proximate cause”, causa sine qua non or the “real or effective cause”: cf WRB Transport v Chivell (ibid). The same principles apply mutantis mutandis to other prescribed events that might be the subject of an inquest.
Although the Coroner is to apply common sense and experience to the task of finding the cause or circumstances of a reportable death or other prescribed event the subject of an inquest, there remains the possibility that reasonable minds may reasonably disagree as to the cause. One problem with common sense is that it is not all that common. That is an inevitable consequence of the unfortunate fact that opinions sometimes differ as to what is the common sense of the matter. In the case of the cause of a death, reasonable medical practitioners might reasonably disagree. Another factor is that a medical practitioner or other person might consciously or sub-consciously seek to determine the real or proximate cause while another may have regard to the causa sine qua non or some other aspect of “the logical and metaphysical controversies that beset the idea of cause” to use the words of Sir Frederick Pollock quoted by Windeyer J in Timbu Kolian v The Queen (1968) 119 CLR 47 at 68-69; see also Windeyer J in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 590-596.
In addition to these considerations, s 25(3) of the Coroners Act expressly provides that the Coroner’s Court must not make any finding or even a suggestion as to criminal or civil liability. The Coroner’s finding is quite indeterminate as to legal responsibility: Keown v Khan [1999] 1 VR 69 per Callaway JA at [16].
For these reasons and especially those in the preceding paragraph, I do not think that Parliament intended that the right of appeal provided by s 27 should require this court to conduct a re-hearing in the same way as it might in the case of appeals from decisions of magistrates which, generally speaking, do affect rights and liabilities. On an appeal from a magistrate this court has the power to disturb findings of fact made by the magistrate: Taylor v Hayes (1990) 53 SASR 282. As the function of the Coroner’s Court is confined to making a finding or findings as to the cause of death or other prescribed event the subject of the inquest, this court should limit its role to correcting a finding for which there was no evidence or a finding that was not reasonably open on evidence.
In reaching this conclusion, I have had regard to decisions of the Supreme Court of Victoria concerning s 59 of the Coroners Act 1985 of that State. Section 59 provides an entitlement to any person to apply for an order declaring some or all of the findings of an inquest void if the Supreme Court is satisfied that it is necessary or desirable to do so after a review of the evidence. It is in these terms:
(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.
The powers invested in the Supreme Court of Victoria by s 59 are effectively as wide as those vested in this court by s 27.
Initially, it was decided that s 59(3) required the court to review the whole of the evidence and examine for itself all issues of fact, including inferences from the evidence, so that the appeal was tantamount to a re-hearing based on the evidence given below: Anderson v Blashki [1993] 2 VR 89 at 92; Commissioner of Police v Hallenstein (supra). However, those decisions were overruled by the Court of Appeal in Keown v Khan (supra) where it was held that the intent of s 59 is that only perverse findings of the Coroner would be set aside, that is to say, findings for which there was no evidence or that no reasonable Coroner could make. The decision in Keown v Khan was reaffirmed by the Court of Appeal in Khan v Keown [2001] VSCA 137 and has been followed and applied in Victoria: see, for example Plover v McIndoe (2000) 2 VR 385; Khan v West (2002) 131 A Crim R 111. It has also been applied in Tasmania where the Coroners Act 1985 in that State is based on the Victorian Act: R v Tennent (2000) 9 Tas R 111. Although s 59 is grounded on recommendations in the report of Sir John Norris QC that led to the enactment of the Coroners Act 1985 in Victoria, those observations are apposite to appeals under s 27 of the Coroners Act of this State. For the reasons already expressed, I would, however, respectfully qualify them in a small but, I think, significant way. In my view, the intent of the legislation is to enable this court to correct a perverse verdict, that is to say, to correct findings for which there was no evidence or that was not reasonably open on the evidence. If on any reasonable view of the evidence the Coroner’s decision can be supported, the appellant who complains of that decision cannot have it set aside and have another decision that the appellant desires substituted for it: cf Young v Paddle Bros Pty Ltd [1956] VLR 38 at 41, approved in Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351-352.
Undetermined Cause of Death
The Coroner reviewed the evidence in the reasons for his findings. Professor Byard is a forensic pathologist of long experience. In a written report to the Coroner’s officer he said:
On 29/8/07 I reviewed the coronial file on this 71-year-old woman who died at Brighton Aged Care facility on 18/7/07. Her past medical history included dementia, hypertension, asthma, a foot ulcer, depression and hypercholesterolaemia. There was no mention of any history of ischaemic heart disease.
She was found dead in her bed, lying on her left side with “the left side of her jaw near her chin resting against the help bar”. There is inconsistency in the description of possible injuries to her neck with i) no bruises seen, ii) a scratch and a small bruise on the left side of her neck, and iii) three bruises the size of 20c pieces down the right jaw line.
Given the absence of a definitive clinical history preceding Mrs Wells death I would not be able to ascribe her death to any particular medical condition and so would have recommended that an autopsy be performed. In addition, the description of Mrs Wells being found with her head resting against the railing of the “help bar” with bruises under her jaw raises the possibility of an asphyxial episode, however in the absence of scene photographs and an autopsy report it is not possible to confirm or refute this possibility. In addition, confirmation of the nature of her neck injuries at autopsy would have been desirable.
I would, therefore, classify the death as “undetermined”.
In his oral evidence Professor Byard repeated his view that the different conditions from which Mrs Wells suffered precluded any conclusion as to the cause of death in the absence of an autopsy. He pointed out that the description “cardiac arrest” is not a cause of death but a description of a mechanism of death. He also said that studies from hospitals where clinicians had made diagnoses of the causes of death, 10 per cent of those had been shown to be inaccurate after autopsies had been performed.
Counsel for the appellants called two witnesses at the inquest, Dr Ayres and Dr Joyner. Dr Ayres is a cardiologist. In a report to the Coroner he referred to the fact that Mrs Wells suffered from hypertension, hyperlipidaemia and depression, all of which, he said, pre-disposed her to coronary artery disease or a cardiac event including sudden death. He said that while many patients dying of myocardial infarction and its complications have not had prior ischaemic heart disease detected, he said that the cause of death was likely to be
…a ventricular fibrillation cardiac arrest (minutes) related to coronary artery disease (years) secondary to hypertension and hyperlipidaemia (years) with coexisting depression and Alzheimer’s disease.
He added that the pain that might have accompanied an acute cardiac event may have been a factor in her struggling to the side of her bed before dying and so might explain the reason for part of her body outside the bed. He expressed the view that it was much less likely that Mrs Wells had suffered from a stroke. Dr Ayres had not examined Mrs Wells nor had he treated her.
Dr Joyner is an experienced general practitioner who practises at Mannum. He gave evidence to similar effect to that of Dr Ayres.
The Coroner was thus presented with the opinion of two medical practitioners who believed that, with the conditions from which Mrs Wells suffered, the likely cause of death was ischaemic heart disease that had led to a cardiac arrest. Professor Byard took the view that risk factors are not causes of death so that, while statistically it was likely that Mrs Wells died of ischaemic heart disease, there was inadequate clinical information available from which to determine the cause of death. The Coroner, therefore, found that the cause of death was undetermined. That conclusion was plainly open to the Coroner. His task was to determine the cause of death. In the absence of an autopsy, it was not possible to reach a firm conclusion as to what was the cause of death. While it may be open to the Coroner’s Court to make a finding on the balance of probabilities (a matter on which I express no conclusion), the Coroner was entitled to conclude in the particular circumstances of this case and on the evidence before him that the cause of death was undetermined.
The fact that the cause of death was undetermined leads to the conclusion that the cause of death was unknown. The words “undetermined” and “unknown” have a very similar denotation. In ordinary usage, the adjective “undetermined” means that which is not authoritatively settled or decided or is uncertain while “unknown” means that which is not known or not ascertained: see Oxford English Dictionary and Macquarie Dictionary. In the context of ascertaining a cause of death, that which is undetermined is plainly that which is unknown. If the cause of death was known, it could not be said that it was undetermined. The cause of death of Mrs Wells was, therefore, unknown and for the reasons already expressed it was a reportable death.
The Appeal Against the Recommendations
The appellants appeal against the three recommendations made by the Coroner. The Solicitor-General contended that there is no right of appeal. I will first examine that question.
Section 25 of the Coroners Act prescribes the duty of the Coroner’s Court to make findings after an inquest and invests it with power to make recommendations. The Solicitor-General contended that the right of appeal provided by s 27(1) of the Coroners Act is limited to an appeal against a finding so that there is no right of appeal against a recommendation or recommendations made by a Coroner’s Court. Section 27 is in these terms:
(1)The Attorney-General or a person who has a sufficient interest in a finding made on an inquest may, subject to this section and in accordance with the rules of the appellate court, appeal to the Supreme Court against the finding.
(2)The appeal lies to the Supreme Court constituted of a single Judge (but the Judge may, if the Judge thinks fit, refer the appeal for hearing and determination by the Full Court).
(3)An application under subsection (1) must be made within one month after the findings on the inquest are given by the Coroner’s Court.
(4)However, the Supreme Court may, in its discretion, extend the time fixed for making an application, even if the time for making the application has ended.
(5)On an appeal, the appellate court may, if the interests of justice so required, re-hear witnesses or receive fresh evidence.
(6)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm or set aside the finding subject to the appeal;
(b)it may substitute a finding that appears justified by the evidence;
(c)it may order that the inquest be re-opened, or that a fresh inquest be held;
(d)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(7)For the purposes of this section, a person has a sufficient interest in a finding made on an inquest if –
(a)the finding affects or may affect that person’s pecuniary interests; or
(b)the finding reflects adversely on that person’s competence in his or her trade, profession or occupation; or
(c)the person has, in the opinion of the Supreme Court, some other interest sufficient to ground an application under this section.
The appellants plainly have a sufficient interest in the findings as to be entitled to an appeal against the findings since the findings may affect them in their pecuniary interests in the nursing home. Furthermore, their conduct is the subject of the findings. Pursuant to s 27(7)(c), I find that they have a sufficient interest to appeal.
The Solicitor-General did not contend that the appellants do not have standing. Instead, he contended that, as the right of appeal is limited to findings, there is no right of appeal against recommendations made in the Coroner’s Court.
There is no common law right of appeal. It is a remedy given by statute: Attorney-General v Sillem (1863) 2 H & C 581 at 608-609; 159 ER 242 at 253; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225. The scope and effect of an appeal will be governed by the terms of the enactment creating it: Commissioner for Railways (NSW) v Cavanough (ibid). The question whether the appellants are entitled to an appeal against the recommendations made by the Coroner, therefore, depends on the meaning and effect of s 27(1) of the Act and, in particular, what is meant by the expression “the finding” at the end of s 27(1).
The Coroner’s Court has been established to enquire into reportable deaths which, as already noted, is defined broadly. As defined, the expression “reportable death” is wide enough to include sudden, violent and unnatural death. It includes deaths in custody or deaths as a result of surgical procedures as well as deaths in institutions under the Mental Health Act 1993. It includes deaths on an aircraft during a flight or on a vessel during a voyage. The manifest intention of the Coroners Act is that there should be an investigation of death in particular circumstances or of other prescribed events so that appropriate steps may be taken to prevent recurrence of the death or prescribed event. To that end the court is invested with power, not only to make findings as to the cause and circumstances of the death or other prescribed event, but also to make recommendations that might prevent or reduce the likelihood of a recurrence of a death in like circumstances or the recurrence of a prescribed event. There is, therefore, an obvious and close connection between the findings made by the Coroner’s Court and any recommendation. In some cases, the recommendation will depend on the findings that have been made. The recommendations might fairly be considered to be a subset of the findings. In order to understand the recommendation it might be necessary to examine the finding. Thus, while s 25 draws a distinction between the finding and a recommendation, I do not think that Parliament intended that the right of appeal in s 27(1) should be limited to a finding so that there was no right of appeal against a recommendation.
Policy reasons reinforce that conclusion. First, it would be curious indeed if there was a right of appeal against a finding but no right of appeal against a recommendation. If the Solicitor-General is correct and a Coroner has made recommendations quite beyond his powers, there would be no appeal against that excess of power. That would be an entirely unsatisfactory result leaving an aggrieved person without remedy by way of appeal. Secondly, while it would be possible for a person with a sufficient interest to institute an application for judicial review seeking orders quashing the recommendations on the ground the Coroner’s Court had acted beyond its power, it is unsatisfactory to require that person to resort to two remedies, an appeal against a finding of the Coroner’s Court and an application for judicial review to quash a recommendation. The firm policy of the law is to put an end to litigation as speedily as justice allows. That policy is expressed in the maxim interest reipublicae ut sit finis litium: Co Litt 303B. That maxim might be translated to mean that it is in the best interests of the State that litigation should not be protracted. That policy is reflected in the philosophy of the rules of this court relating to joinder of causes of action that multiplicity of proceedings is to be avoided. In this respect, it is appropriate to refer the words of Lord Browne-Wilkinson speaking for the House of Lords in Delaney v Staples [1992] 1 AC 687 at 698, words that have so often been said in other similar occasions:
To be forced to bring two sets of proceedings for small sums of money in relation to one dismissal is wasteful of time and money. It brings the law into disrepute…
An appellant against a finding should not have to be put to the expense and possible delay of having to institute separate proceedings by way of judicial review to challenge a recommendation that is perceived to be invalid. That plainly brings the law into disrepute.
For all of these reasons, the right of appeal in s 27(1) in respect of the findings of the Coroner’s Court includes a recommendation made by the court.
I turn to the question whether the recommendations were within power. For present purposes it is sufficient to note only subsections (1), (2), (3) and part of subsection (4) of s 25.
(1)The Coroner’s Court must, as soon as practicable after the completion of an inquest, give its findings in writing setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest.
(2)The Court may add to its findings any recommendation that might, in the opinion of the Court, prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest.
(3)However, the Court must not make any finding, or suggestion, of criminal or civil liability.
(4)The Court must, as soon as practicable after the completion of the inquest, forward a copy of its findings and any recommendations –
(a)to the Attorney-General…
It will have been noticed that the power to make recommendations is not at large but is limited to recommendations that might, in the opinion of the court, prevent or reduce the likelihood of a recurrence of an event similar to the event that was the subject of the inquest. The proscription in s 25(3) of any finding or suggestion of criminal or civil liability is expressed in terms wide enough to apply to recommendations.
The event the subject of this inquest was the death of Mrs Wells. The power of the Coroner to make recommendations was limited by s 25(2). That power included the power to make recommendations relating to both the cause of death of Mrs Wells and to the circumstances in which she died. It, therefore, extends to circumstances that are not a direct cause of death: WRB Transport v Chivell at 106-107 per Lander J. Nevertheless, the power to make a recommendation extends only to such matters as might prevent or reduce the likelihood of recurrence of a death in like circumstances to those in which Mrs Wells died or to prevent death from the same or like causes to those from which she had died. In this case, the recommendations dealt with matters that did not either directly or indirectly relate to the death of Mrs Wells or might prevent or reduce the likelihood of a death recurring in like circumstances. Both related to events that occurred after her death.
I will deal with each recommendation. The first recommendation is directed to preventing certificates of death under the Cremation Act being signed by medical practitioners who have an interest in a nursing home. Dr Jagdish Saraf did not come to the nursing home until 2 pm on the day of the death of Mrs Wells to certify her death. Sometime later he purported to complete a “first medical certificate” pursuant to the Cremation Regulations 2001 made under the Cremation Act. The form that Dr Saraf signed was a form prescribed by the Cremation Act 1891 which had been repealed by the Cremation Act 2000 which had come into operation on 1 February 2001. The Cremation Regulations provide for a first medical certificate which is similar to but not identical in form to the form completed by Dr Saraf. In addition to that irregularity, Dr Saraf incorrectly gave the date of death as 17 July 2007 rather than 18 July 2007. He also nominated a time of death that does not correspond with the notes kept by the nursing home staff. Dr Saraf took the first medical certificate home and asked his wife, Dr Madhu Saraf, to sign a second medical certificate. That too was a form prescribed under the Cremation Act 1891. Dr Jagdish Saraf said that he completed the substantive parts of the second medical certificate including the answers to questions whether his wife had ever professionally tended to the deceased, whether she had read and considered the certificate of the practitioner who had signed the first certificate, and whether she was satisfied that the deceased died from natural causes. In answer to those two last mentioned questions, he wrote the word “yes” in the appropriate place. Dr Madhu Saraf then signed the certificate. However else it might be described, the conduct of the appellants was at least irregular. Importantly, in no respect does that conduct prevent or reduce the likelihood of death.
The next two recommendations are similar in that they recommend that consideration be given to disciplinary proceedings (in the second recommendation) or to criminal proceedings (in the third declaration). Neither is concerned directly or indirectly with preventing or reducing the likelihood of death resulting from causes similar to those that caused the death of Mrs Wells. There is nothing in the findings of the Coroner that suggest that any error or omission on the part of either of the appellants was the cause of the death of Mrs Wells. The Coroner’s criticism of their conduct is directed to other matters and in particular the fact that they signed certificates under the Cremation Act and that Dr Jagdish Saraf was providing general practitioner services to the nursing home. Both recommendations do not fall within the ambit of s 25(2).
The Coroner’s Court and any Coroner exercising the jurisdiction of that court has authority to exercise only the powers and functions conferred on the court by the Coroners Act. Conduct that is not authorised by the Act is invalid. As each of these recommendations falls outside the power in s 25(2), the Coroner had no power to make them and each is invalid.
For these reasons, the appeal challenging the validity of the recommendations must succeed. The Coroner’s Court had no power to make the recommendations which are, therefore, invalid.
Given these conclusions, it is unnecessary to deal with the grounds of appeal complaining of a want of procedural fairness.
Law Reform
It is instructive to compare the scheme of the Coroners Act in this State with the Coroners Act in Victoria which by s 15 invests the Coroner with jurisdiction to investigate a death if it appears to the Coroner that the death is or may be a reportable death. Section 3 of the Coroners Act 1985 (Vic) defines the expression “reportable death”. One kind of reportable death is a death “that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly from accident or injury”. In Victoria the jurisdiction of the Coroner does not, as in South Australia, depend on a precise determination of the objective fact whether the cause of death is of a kind prescribed in the definition. A like approach is to be found in s 13(1) of the Coroners Act 1980 (NSW), s 3 of the Coroners Act 1996 (WA), and s 13(1) of the Coroners Act 1997 (ACT). Consideration might be given to amendment of the Coroners Act in this State along the lines of the legislation in Victoria. In that way, it might be possible to avoid arid questions as to whether the Coroner’s Court did in fact have jurisdiction to conduct an inquest.
Conclusion
For these reasons, the Coroner’s Court had jurisdiction to hold an inquest to ascertain the cause or circumstances of the death of Mrs Wells but the recommendations made by the Coroner are invalid. I will hear the parties as to the terms of the order.
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