WRB Transport v Chivell

WRB TRANSPORT & ORS v CHIVELL
[1998] SASC S7002

Full Court: Prior, Mullighan and Lander JJ

PRIOR J. The applicants sought relief in the nature of prohibition or an injunction preventing the State Coroner from proceeding to hold an inquest into six deaths which occurred on 3 August 1996 or to continue with the proceedings until there had been a determination as to the exclusion of evidence in material proposed to be adduced in a hearing before the Coroner. The applicants also sought an order preventing the Coroner from receiving evidence from some 19 persons and a declaration that if, contrary to the order sought, the Coroner were to call these 19 additional witnesses it would be beyond the power of the Coroner. The Coroner was said to have erred in law in refusing the request of the applicants to exclude evidence from these additional witnesses.
There is no dispute that six people died as a result of a motor accident in which a truck owned by the applicant company and driven by its employee Snewin collided with motor vehicles in which the six deceased were travelling. After the accident Snewin was charged with six counts of causing death by dangerous driving. He has been convicted and sentenced with respect to those charges.
The applicants were informed in September of this year that there was to be a coronial inquest into the deaths of the deceased persons. Their solicitors were given statements of proposed witnesses. Those statements indicated that it was the intention of counsel assisting the Coroner to invite the Coroner to call witnesses to give evidence that certain employees of the applicant company supplied tablets to its drivers and, in addition, that these drivers were under pressure to drive for periods of time far in excess of that permitted by law.
The applicants sought a ruling from the Coroner to have the evidence excluded from the inquiry on the ground that it was irrelevant to the matter before the Coroner. The Coroner ruled the evidence was both relevant and admissible even if the Coroner’s inquiry were to be confined to the circumstances of the particular accident and why Snewin drove as he did on 3 August 1996. As to that the Coroner said that the evidence sought to be excluded should be received. In his view:-
“If accepted, it tends to show a work practice, a culture…, a course of conduct which puts into context the events of 3 August 1996. It goes to the likelihood as to whether what occurred, occurred in the circumstances described by Mr Snewin and assists in the determination of whether what he did was done with the connivance, assistance, knowledge, consent or tacit acceptance of his employers, or whether, as Mr Trim argues, he was on a frolic of his own.
In my view this ruling is particularly strengthened by the reminder that this is an inquiry. It is not a criminal or a civil proceeding. As I am advised, there will be evidence led which connects the issues of sleep deprivation and the use of drugs, with the risk of accidents such as this occurring and in my view, this makes the evidence both relevant and admissible.”
A judge of this court refused to grant any of the relief sought in these proceedings for judicial review. His Honour’s view was that the proceedings could only succeed if the Coroner had made a jurisdictional error. His Honour could not identify such an error.
By s12 of the Coroners Act 1975 a Coroner is authorised to hold an inquest, “in order to ascertain the cause or circumstances of… the death of any person by violent, unusual or unknown cause.” Section 25 authorises the Coroner not only to make findings but to add any recommendation that might in his opinion prevent or reduce the likelihood of a recurrence of an event similar to the event the subject of the inquest. Section 28A provides for a finding to be set aside in this court if the court is of the opinion that the finding is against the evidence or the weight of the evidence adduced before the Coroner or if it is desirable that the finding be set aside because of an irregularity occurring in the proceedings, insufficient inquiry or because of new evidence.
It was put to the single judge that the evidence objected to did not relate to any fact, matter or circumstance which formed part of the sequence of events leading up to the deaths the subject of the inquest and were therefore outside the ambit of the Coroner’s jurisdiction. The submission was that the jurisdiction of the Coroner was to enquire into the cause or causes of death of deceased persons, the Coroner having no power to call witnesses or compel them to answer questions which went beyond that inquiry. Before the Full Court it was conceded that the first part of the Coroner’s quoted ruling did not involve an error going to jurisdiction. There may be an error within jurisdiction. However, in the appeal the argument was that within the second paragraph quoted from the Coroner’s ruling there was an error going to jurisdiction that should be corrected by this court. The argument was that a determination that a particular issue was relevant to the cause of death or surrounding circumstances was a determination as to jurisdiction and erroneous. It was submitted that the Coroner did not have an unfettered discretion to determine the scope of his own jurisdiction.
Harmsworth v The State Coroner[1] was relied upon. In that case Nathan J held that a Victorian Coroner does not have general powers of inquiry or detection. In His Honour’s view an inquest into particular deaths in a prison was not and should not be permitted to become an investigation into prisons in which deaths may occur. So here the argument was that to permit the evidence objected to to go before the Coroner, the Coroner would be exceeding his jurisdiction and proceeding to investigate the use of vehicles in particular circumstances. It cannot be disputed that the Coroner is not authorised to have an inquiry into general causes of accidents unrelated to a particular accident. That is not what the Coroner has done here. The Victorian legislation limits an inquiry to the cause of death whereas s12 of the South Australian provision goes beyond cause to cause or circumstances of death. In R v von Einem[2] Duggan J said that the words “cause or circumstances” as they appear in s12 are of wide import with no narrow interpretation placed upon the use of those words by emphasising the word “cause”. Submissions put before this court sought to emphasise cause and gain comfort from the Victorian authority, limited as it is by an inquiry as to cause of death. I do not think that Harmsworth is of assistance to the appellants.
[1] (1989) VR 989
[2] (1991) 55 SASR 199 at 225
Queensland Fire and Rescue Authority v Hall[3] affords support for the correctness of the Coroner’s approach. The Queensland legislation confers jurisdiction on a Coroner to hold an inquest into the “cause and origin” of fires where life has been lost or endangered. It also authorises an inquest into the cause and circumstances of the death of a person. The proceedings sought to prevent the Coroner inquiring into the training of the fire officers in an inquiry where there was a limitation to who or what caused a fire. Lee J held that the adequacy of training and equipment were relevant to the cause of the fire in the first place. The broader test of cause and circumstances in s12 must render relevant and admissible the inquiry into work practices and the topics of sleep deprivation and drug use. That is not to say that there may be some cases where those inquiries may be irrelevant to a particular inquiry and give rise to a jurisdictional error. If, for example, there was no evidence of fatigue or drugs having anything to do with a particular death the Coroner could be restrained from having an inquiry on whether sleep deprivation and the use of drugs caused accidents. In that situation those things would be patently unrelated in terms of causation to the particular death. That is not this case. The Coroner was not pursuing a frolic of his own or acting in bad faith. If that were established judicial review would be appropriate. In this case the Coroner’s ruling cannot be set aside unless it is such that no reasonable Coroner correctly directing himself in law could properly arrive at his decision: see Douglas v Pindling[4].
[3] (1998) 2 Qd. R 162 at 170
[4] (1996) AC 890 at 904
No jurisdictional error is evident in the ruling given by the Coroner. The decision of the single judge was correct. This appeal failed. It was dismissed at the completion of the hearing for the reasons now given.
MULLIGHAN J I agree that the appeal should be dismissed. I agree with the reasons of Prior J and Lander J and there is nothing which I can usefully add. The impugned evidence is clearly relevant to the subject matter of the enquiry as Lander J has shown.

LANDER J. I have had the opportunity of reading the reasons, in draft, of Prior J.
This matter came before the Full Court on 8 December 1998 and after hearing the appellant and respondent, the Court announced that the appeal would be dismissed. The Court indicated at that time that it would give reasons for its decision and these are my brief reasons for my joining in the order of the Court dismissing the appeal.
The appellant brought proceedings for judicial review in relation to a ruling made by the Coroner on 16 October 1998.
The Coroner was due to commence an inquest into the death of the six persons killed as a result of a motor vehicle accident on 3 August 1996. A truck owned by the first appellant of which the second, third and fourth appellants are directors, and driven by Brian Snewin, collided with two motor vehicles in which the six persons were travelling. Apparently, the appellants were made aware on or about 9 September 1998 that there was to be an inquest into the deaths of those persons and as a result they instructed their solicitors to apply to the Coroner to have excluded from the inquest the statements in evidence of a number of persons who were employed as drivers by the first named appellant. The ground of the application for the exclusion of their evidence from the inquest was that their evidence was “outside the ambit of a coronial inquest and extremely prejudicial and not relevant to deciding the essential issue as to what caused the death of the six persons”.
The Coroner’s jurisdiction is statutory. Section 12 of the Coroner’s Act provides:
“12 (1)...... Subject to this Act, an inquest may be held in order to ascertain the cause or circumstances of the following events:
(a).... The death of any person by violent, unusual or unknown cause; or
... ”
In exercising that jurisdiction the Coroner has to make findings, in writing. Section 25 provides:
“25 (1)... A coroner must as soon as practicable after the completion of an inquest give his or her finding by writing in the prescribed form setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest.
(2)A coroner may add to his or her finding any recommendation that might, in his or her opinion, prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest.”
Section 25, in my opinion, does not extend the jurisdiction which is given to the Coroner by s12. The coroner’s jurisdiction is limited to ascertaining “the cause or circumstances” of the death of any person by violent, unusual or unknown cause together with the further jurisdiction given by the other paragraphs in s12(1), which are not relevant for a determination of this matter.
Clearly enough, the ‘cause and the circumstances’ must be two different things. If it was otherwise there would be no reason for Parliament to have included both words.
The cause of a person’s death may be understood as the legal cause. In determining those events which may be said to give rise to the cause of the death, the Coroner is not limited by concepts such as ‘direct cause’, ‘direct or natural cause’, ‘proximate cause’ or the ‘real or effective cause’. Nor is the Coroner limited to a cause which is reasonably foreseeable. The cause of a person’s death in respect of the Coroner’s jurisdiction is a question of fact which, like causation in the common law must be determined by applying common sense to the facts of each particular case; Mason CJ, March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515.
The Coroner, therefore, has to carry out an inquiry into the facts surrounding the death of the deceased to determine what, as a matter of common sense, has been the cause of that person’s death. The inquiry will not be limited to those facts which are immediately proximate in time to the deceased’s death. Some of the events immediately proximate in time to the death of the deceased will be relevant to determine the cause of the death of the deceased. But there will be other facts less proximate in time which will be seen to operate, in some fact situations, as a cause of the death of the deceased. That is a factual inquiry which only has, as its boundaries, common sense.
Not only does the Coroner have jurisdiction to determine the cause of a deceased’s death, he also has jurisdiction to determine the circumstances of the death of any person.
That jurisdiction must be in addition to the jurisdiction given to determine the cause of the death of the deceased.
There may be some circumstances surrounding the death of the deceased which, although not operating directly as a cause of the death of the deceased, are relevant for the coroner’s inquiry.
Those circumstances might explain the origin of the causes of the death of the deceased or the interaction between a number of causes of death.
The circumstances surrounding the death of the deceased may be important, for the purpose of the coroner adding to his or her findings, recommendations which might prevent or reduce the likelihood of a recurrence of a death.
In Queensland Fire and Rescue Authority v Hall (1998) 2 Qd R Lee J was called upon to consider the construction of the Coroner’s Act 1958 in Queensland.
That Act gave jurisdiction to a coroner to hold an inquest into the cause and origin of a fire. It also gave a coroner jurisdiction to inquire in “the cause of the death” and “the circumstances of the death” of a person.
In relation to the construction of the section giving the jurisdiction to inquire into “the cause of the death” and “the circumstances of the death”, his Honour said that he believed that jurisdiction to be considerably wider than the jurisdiction given to inquire into “the cause and origin” of a fire. In connection with the jurisdiction relating to death Lee J said at 170:
“It may be noted that s7 first refers to “the cause of the death” itself as the ultimate focus of the inquiry, i.e., the death, but there is the added requirement of “... and the circumstances of the death”. The death is the actual event and the cause of it is the process of happening which brought the death about and is the cause of it, whereas “the circumstances” obviously covers a much wider area of inquiry as the word itself conveys and as the various sections of the Act referred to indicate. Circumstance means “time, place, manner, cause, occasion, etc, surroundings, of an act or event”; Concise Oxford Dictionary.”
I agree, generally, with the distinction that his Honour makes between cause and circumstance. Specifically I agree that the circumstances to be inquired into cover a much wider area of inquiry than the cause.
In my opinion, the jurisdiction given by the Act to the coroner is quite extensive. It is not limited, as suggested, to a particular inquiry into the direct cause of death of the deceased. The coroner has a jurisdiction and, indeed, an obligation to inquire into all facts which may have operated to cause the death of the deceased and as well to inquire into the wider circumstances surrounding the death of the deceased.
This inquest was due to commence on 19 October 1998 and on 16 October 1998 an application was made by the appellants to obtain a ruling from the coroner that certain evidence which the coroner proposed to receive should be rejected.
The evidence was summarised both before the coroner and in this court. The evidence which the appellants have called “the impugned evidence” was from two different sources. The first source was a group of employees of the first appellant and the second source, police officers. The evidence from the first source relates to work practices of the first plaintiff.
Mr Snewin, who has now given evidence in the inquest, has given evidence of general fatigue. He has given evidence of receiving drugs during the course of his employment. He has also given evidence of work practices which may have impacted upon his capacity to drive safely and may have impacted upon his capacity to drive safely on the day of the accident.
The impugned evidence from the employees apparently relates to both of those topics.
It seems to me that the evidence is clearly relevant. It would be a relevant circumstance to determine whether the cause of this collision was due to the ingestion of drugs and of the fatigue of the driver. If there was evidence from other employees of work practices relating to the ingestion of drugs and work practices which would give rise to fatigue, then that evidence, in my opinion, is directly relevant to determining the cause of the deceased. If it is not relevant, in respect of the cause of the death of the deceased, it would, in my opinion, be directly relevant to a determination of the circumstances of the death of the deceased.
In any event, in my opinion, this application to the coroner was premature. It was made at a time when no evidence had been brought to the coroner. It was simply not possible to obtain a ruling from the coroner that whatever the circumstances in the future, the impugned evidence could never be admissible. Whether the evidence was admissible would depend upon other admissible evidence.
An issue into the inquest relating to the six deaths near Blanchetown in the motor vehicle driven by Mr Snewin was his fatigue. One question which arises is whether Mr Snewin’s fatigue was caused by work practices instituted by the appellants. These work practices may include requiring drivers to drive long hours (too long for the safety of others); overloading drivers by requiring drivers to take on too many trips; and requiring or allowing drivers to take drugs to counter fatigue.
All of these matters may be relevant to determine whether Mr Snewin’s fatigue was the result of a work practice.
That work practice might then be a cause of the deaths. At the very least it might be a relevant circumstance into the death of those persons.
In due course, some of the evidence may become irrelevant. Other evidence, yet undiscovered, may become relevant. The coroner will determine that at the time of reception of the evidence. Some evidence which has been received in due course may be ignored. Some may become clearly wrong. Other evidence will be unreliable and some irrelevant, but that will be a matter for the coroner at the time he makes his findings.
It was suggested that if the coroner did receive this evidence he would be going on a frolic of his own and exceeding his jurisdiction. That, in my opinion, is not correct. The impugned evidence was not shown to be so clearly irrelevant that the receipt of the evidence must demonstrate jurisdictional error. It is jurisdictional error which must be shown, not error within jurisdiction: Craig v South Australia (1995) 184 CLR 163. Indeed on the face of it the evidence is probably relevant. This ruling on evidence indicated that the Coroner, as then advised, on the anticipated evidence believed that the impugned evidence was relevant. In my opinion, such a ruling, made at the behest of the appellants, in circumstances where no evidence had then been received, was not indicative of jurisdictional error. It did not indicate that the Coroner proposed to act outside of his jurisdiction to inquire into the cause or circumstances of the death of the six deceased. Because the evidence appears to be relevant, to matters directly raised in the inquest which were themselves relevant the ruling did not indicate that the Coroner proposed to act outside his jurisdiction.

Nor did his ruling indicate any misunderstanding of the statute which erects his jurisdiction.
In my opinion no error was demonstrated by the coroner in his ruling and no evidence was demonstrated by the learned Judge in the application for judicial review.
For those reasons I agreed that the appeal should be dismissed.

JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Harmsworth v The State Coroner (1989) VR 989
        R v von Einem (1991) 55 SASR 199 at 225
        Queensland Fire and Rescue Authority v Hall (1998) 2 Qd. R 162 at 170
        Douglas v Pindling (1996) AC 890 at 904

[1998] SASC 7002

23 December 1998