China Light & Power Co. Ltd. v. Warner B.G. Banks, Esq Her Majesty's Coroner of Hong Kong

CACV000055/1994

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Coram: Hon. Power, Atg Chief Justice, Mortimer and Godfrey, JJ.A.

Dates of Hearing: 25-28 October 1994

Date of handing down Reasons: 5 January 1995

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REASONS FOR JUDGMENT

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Mortimer, J.A.: On 27th October 1994 we dismissed this appeal. We now give our reasons.

2. On 28th August 1992, two engineers working at Castle Peak "B" Power Station at Tuen Mun, New Territories, were killed in an explosion of gas in high pressure receivers. On 26th April 1993, the coroner held an inquest into the death of the two deceased. This concluded with a verdict of death by accident on 27th May 1993. Later, two further reports came to light and consequently, the Attorney General required the coroner to re-open the inquest under his powers in s. 20 of the Coroners Ordinance, Cap. 14.

3. The inquest was re-opened and concluded on 23rd November 1993. On this occasion the coroner left for the jury's consideration (a) their original verdict of accident, (b) lack of care and (c) an open verdict. The jury returned a verdict of lack of care.

4. China Light and Power (CLP), the owners of the power station, obtained leave to apply for judicial review of the jury's decision. CLP contended that the coroner had wrongly directed the jury to consider a verdict of "lack of care". On 4th February 1994, Liu J (as he then was) granted the application and ordered that the verdicts of "lack of care" should be quashed. He also ordered (with the agreement of the parties) that the verdict of "death by accident" should stand as the only possible consequence of his decision.

5. The coroner now appeals against the judge's order and asks for the verdicts of "lack of care" to be re-instated.

The Issue

6. On the re-opened inquest, the coroner directed the jury that it was open to them on the evidence to return verdicts of "lack of care". The basis was that CLP, the employer, owed a duty of care in respect of plant and machinery towards the deceased and if the employer failed to exercise a reasonable standard of care which could have prevented the explosion, it was open to the jury to return such verdicts. On this the final passage of the coroner's direction was:

"To summarise, members of the jury, if an employer provides a working place where potentially hazardous plant or machinery are in operation, then he is under a duty of care, firstly, to ensure that that potentially hazardous plant or machinery is of a fit and proper standard for operation in that place of work.

Secondly, he is under a duty of care to ensure that any persons operating that machinery have reached a fit and proper standard in order that they may properly operate that machinery and/or plant. Thus, if you find that the standard of care, as I have outlined, falls below the standard reasonably expected, and secondly, if you find it proved that had the care been reasonable then in this instance the explosion would not have occurred, you may return a verdict of 'death by lack of care'."

Stated simply, the issue is whether the judge was wrong when he ruled that the Law of Hong Kong is the same as that of England that a "lack of care" verdict is not open to the jury in the circumstances outlined by the coroner but only where the physical neglect of one person dependent on the other has caused or contributed to death.

7. The coroner by his counsel, Mr Grossman Q.C., concedes that the law in England on the verdict of "lack of care" is clear and would not permit of such a verdict in the circumstances of this case. This appeal therefore turns on the validity of Mr Grossman's submission that the law relating to coroner's inquests is different from that in England and that in Hong Kong it is open to the coroner to leave to the jury a verdict of "lack of care" in the way he did.

The Hong Kong Legislation

8. The researches of counsel have produced little of the early history of the office of coroner within this territory. It can be assumed that before the passing of the Coroners Abolition Ordinance 1888, coroners were appointed and were subject to the English law and practice insofar as it was consolidated by the Coroners Act 1887. Although the 1888 Ordinance in Hong Kong abolished the office of coroner, similar duties were thereafter carried out by a magistrate.

9. A comparison of that English Act and the Ordinance shows that the functions of the English coroner and the Hong Kong magistrate sitting as a coroner were similar. Schedule Two of the Act contains suggested verdicts which include not only a brief description of the manner of death, but also misadventure, accident, lawful killing, murder, unlawful killing (including unlawful killing by neglect) and suicide. There is no suggested verdict of "self neglect or lack of care" but the first relevant statistics produced in England in 1901 include the numbers of verdicts for both. It is reasonable to think that such verdicts were commonly returned well before 1901. The form of the statistics shows "lack of care" as a sub-category of "death by neglect" which was a separate category from "manslaughter". Although Jervis on Coroners, 7th Ed., 1927 treated killing by neglect as a form of murder or manslaughter, this is not reflected in the way in which the Home Office statistics were complied in any year between 1901 and 1938. (See the annexure to the Broderick Report 1971. Cmnd. 4810)

10. The English cases reviewed by Liu J and the recent decision of the English Court of Appeal in R v Humberside Coroner, Ex p. Jamieson[1994]3 WLR 83 show - as submitted by Mr Grossman - that the law on verdicts of "lack of care" in England is clear even if some difficulty has arisen in the past because of confusion of the terminology with "lack of care" in claims for common law in negligence. Any such difficulty is resolved by that decision with the same result as can be found in Liu J's judgment in this case.

11. At 101 the Master of the Rolls giving the judgment of the court said:

"(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be."

Unlike the position in England, neither the Ordinances nor the Rules in Hong Kong have suggested, either now or in the past, the words in which verdicts may be returned. But it is clear that the English practice has been broadly followed by the coroners in Hong Kong. In both jurisdictions, a brief factual description of the circumstances and cause of death are accepted.

12. In the Coroners Abolition Ordinance 1888, and the Coroners Abolition (Amendment) Ordinance 1934 and the Magistrates (Coroners' Powers) Ordinance, Cap. 14, the magistrate was empowered, as coroner, to "inquire into the cause of death" and "to determine the cause of death".

13. The modern law in Hong Kong is to be found in the Coroners Ordinance 1967, Cap. 14. This makes provision for the appointment and the duties of coroners. Section 6 provides that in certain deaths:

"a coroner may, if he considers that an inquiry is necessary, inquire into the cause of and the circumstances connected with the death of any such person ... and may determine the cause of death."

The section provides therefore in broad terms for the scope of the inquiry and for the determination which has to be made. This section clearly provides for the coroner to inquire into "the circumstances" and even decide blame in cases where death has been caused criminally (but not otherwise). In other respects, however, the Ordinance itself is remarkably silent upon the nature of the inquiry into the circumstances. However, rules were made under the Ordinance in 1969, and in the context of this appeal, certain are relevant:

"23. Matters to be ascertained at an inquiry

The proceedings and evidence at an inquiry shall be directed solely to ascertaining the following matters-

(a)the identity of the deceased;

(b)how, when and where the deceased came by his death;

(c)the persons, if any, to be charged with murder, manslaughter, infanticide or causing death by reckless driving, or of being accessories before the fact should the jury find that the deceased came by his death by murder, manslaughter, infanticide or reckless driving; ...

24. Opinions not be expressed on matters other than those in rule 23

(1)Neither the coroner nor the jury shall express any opinion on any matters other than those referred to in rule 23.

(2)Notwithstanding paragraph (1) the coroner or the jury may make a recommendation designed to prevent the recurrence of fatalities similar to that in respect of which the inquiry is being held.

28. Facts

No person shall be allowed to address the coroner or the jury as to the facts.

30. Civil liability not to be determined

No verdict shall be framed in such a way as to appear to determine any question of civil liability."

The origin of the 1969 Hong Kong Rules is easily demonstrated if they are compared with the 1953 English Rules, under the Coroners Act 1926. Save where Hong Kong circumstances occasionally dictate otherwise, the two sets of rules are in identical terms.

14. At the time when the Hong Kong Coroners Ordinance, Cap. 14 was passed in 1968 and the Rules were made under it in 1969, the only material difference between the legislative scheme in England and that in Hong Kong is to be found in s.6 set above which deals with the scope of the inquiry. The provision that a coroner may inquire into the circumstances connected with the death does not appear in the English Act. The English Rules are also silent as to inquiring into the circumstances connected with the death.

15. The question is, therefore, whether this is a ground for concluding that the Hong Kong law and practice differed from that in England at the time when the Rules were made. The scope of the inquest in England was the same as set out in Hong Kong Rule 23 "the proceedings and the evidence at the inquiry shall be directed solely to ascertaining the following matters ... (b) How, when and where the Deceased came by his death."

16. However, in Halsbury's Laws, 4th Ed. Vol. 9, para. 1110, Note 1, which deals with the practice in English coroner's courts, it is recorded:

"How the deceased came by his death is wider than a mere finding of the medical cause of death. The coroner must also investigate the circumstances surrounding the death ..."

No authority is cited but there is every reason to think that this is accurate and reflects the long established practice of coroners in England exercising their common law powers.

17. It would appear therefore that s.6 of the Hong Kong ordinance is no more than a reflection of the English practice - both at the time it was passed and now.

18. Later amendments, abolishing the ability of a coroner's jury in England to name the person they find guilty of causing a death (Criminal Law Act 1977, s.6(1), Schedule 13) compared with the continued duty to do this in r.23(c) in Hong Kong is, in our view, no indication that Hong Kong law is different from that in England concerning the nature of verdicts open to the jury.

19. Although there are no suggested verdicts in the Hong Kong legislation, such as appear in the English legislation, it is to be noted that the suggested verdicts in England are not binding.

20. Left with no statutory guidance as to the precise form of verdict, Hong Kong coroners and their predecessors have in the past directed juries on the same basis as their English counterparts. This is sensible.

21. We conclude without hesitation that there are no material differences to be found in the English legislation compared with the Hong Kong legislation relevant to the present appeal.

22. However, Mr Grossman further submits that obiter dicta of another division of this Court in re MDU and another ex parte Bascombe[1991]1 HKLR 429 demonstrates that it was the view of this Court that in circumstances of that case it was proper to investigate the conduct of an anaesthetist and to determine whether he was in breach of his duty of care. Mr Grossman relies in particular upon a passage in Penlington J.A.'s judgment at 456 B-C:

"I have also found the decision in Louw v McLean of particular help. The background of that case is virtually on all fours and the judgment of Hardie Boys, J sets out admirably what is the correct approach for a coroner to take when inquiring into a death where inevitably there will be evidence indicating fault on the part of some person or persons who owed a duty of care. (I am only sorry that decision has not been reported as yet.) That category of persons is of course by no means confirmed to medical practitioners, it could include, in the instance put forward by Fuad, V-P in the course of argument, a signal-man who apparently failed to take proper steps and a train crash resulted."

However, with respect, this is a misunderstanding of the meaning of the passage. The MDU case was not concerned with verdicts open to the jury (the verdict of "lack of care" was withdrawn from the jury) but with the scope of the inquiry at an inquest. A full reading of the judgment puts this beyond doubt. Kempster J.A. (as he then was) with whose judgment Penlington J.A. agreed said about the verdict of "lack of care":

"This is not to be confused with the legal duty of care as defined in Donague v Stephenson [1932] AC 562."

In conclusion, we find without hesitation in material matters relevant to this appeal coroners law and practice is the same in Hong Kong as in England and has always been so. As we have indicated, amendments to the law in England have reduced the scope of the coroner's inquiry where a death is the result of a crime. This does not affect in any way the law relating to this case. The verdict "lack of care" is taken from English law and practice. It has the same meaning here as in England. Mr Grossman Q.C. conceded that if his main submission was not accepted by the Court, he could not argue that the meaning of the verdict in England is in any doubt. We agree.

23. The one relevant difference between the English law and the Hong Kong law to which we have referred is found in s.6 of the Hong Kong Ordinance. This has been said in the past to require a wider enquiry in a Hong Kong inquest into the circumstances of the death. These words, however, are themselves a reflection of English practice. (See the passage cited from Halsbury's Laws Vol. 4 para. 1110 above.)

24. Nor, in our view, is there any good reason for holding that the inquest in Hong Kong should widen its scope to enquire into breaches of statutory or common law duty by employers responsible for industrial undertakings.With the greatest respect to the coroner in this case, a coroner's inquest is quite unsuitable for such enquiry if it is to be properly undertaken. It would appear that he confused the "lack of care" verdict open to his jury with the common law duty of care, a confusion warned against by Kempster J.A. in the passage cited. We remain unaware of any legal basis or legal principle, or authority for the directions given to the jury by the coroner in this case. As found by Liu J these directions were plainly wrong in law.

25. Since Liu J decided this application, Jamieson's case has been decided. Bingham M.R. in the judgment of the court reviews the history and the law relating to coroner's inquests with great clarity. That statement of the law should be applied in the coroner's and other Hong Kong courts.

26. That judgment refers to the confusion which has arisen in the mind of the public about the meaning of a verdict of "lack of care". The Master of the Rolls suggests that this will be lessened by the use of "neglect" instead of "lack of care". Whereas "neglect" is itself not free from possible misinterpretation we also think that in future "neglect" should be used by coroners here in Hong Kong in place of the verdict of "lack of care".

27. We would add only this. The purposes of "Crowner's quest law", as the clown calls it in Shakespeare's "Hamlet", Act 5, Scene I, are consistently misunderstood by the public and the media. As Swinfen Eady L.J. pointed out in Bird v Keep [1915] 2 KB 693 (a case not cited to us, in which the plaintiff widow of a deceased workman sought to put in evidence the record of the coroner's inquisition as evidence as to the cause of her death) "the result of an investigation conducted by the coroner, however valuable for certain purposes, cannot in law be treated as prima facie evidence against any person of the facts found by the jury" (see p. 699). Yet it is widely and quite wrongly believed that the main purpose of a coroner's inquest, in a case like this, is to lay the foundation for a civil claim for damages against any person who in the opinion of the coroner's jury (as exhibited by its verdict) was to blame for the deceased's death. This belief persists, notwithstanding repeated efforts, by the court and by the legislature, to make it plain that, so far from this being the task of the coroner's jury, it is a task on which it has to be expressly directed not to embark. The question of blame is one exclusively for the ordinary courts, not for the coroner's court, and the findings of the coroner's court are not relevant to any issue which the ordinary courts may have to determine. The real reason why, in this case as in other cases of industrial and similar accidents, the coroner's court is pressed to bring in a verdict of "lack of care" is to influence the ordinary court in any litigation brought by the dependants of the deceased workman against the employer. This is wholly objectionable. The sooner the public and the media can be brought to realise that it is not the purpose of a coroner's inquest to establish whether and to what extent some third party was to blame for the accident, the better. We believe that coroners (here, and in England and Wales; see R v HM Coroner for South Yorkshire, ex parte Stringer (1994) 158 JP 453, where the court rejected an argument, in the case of the appalling disaster in which 95 people died at the Sheffield Wednesday Football Club's ground, that the coroner should have left the verdict of "lack of care" to the jury) now generally appreciate that it is not the function of their courts to indicate where civil liability may lie for such accidents. We would express the hope that this judgment might help the public and the media to do the same.

Costs

28. At a separate hearing below, Liu J was asked to consider the costs of the original hearing. It was submitted by those representing the coroner that only in usual circumstances would costs be awarded against those holding public offices such as magistrates or coroners. In a careful and learned judgment the judge reviewed the law. He accepted that only in rare cases will a coroner be ordered to pay the costs unless his behaviour called for strong disapproval. See Jervis on Coroners, 11th Ed. (1993) para. 19-16 at P348.

"If the coroner does appear at the hearing, and loses, then the court has a discretion whether to order the coroner to pay the successful applicant's costs, even though he acted reasonably. But such an order has only rarely be (sic) made; usually no order is made unless the coroner's behaviour called for strong disapproval."

This principle followed those developed when considering orders for costs against magistrates in England. Its origin, no doubt, was that such people were rendering valuable public service for little or no reward and that costs often in times past would fall to be paid personally by the magistrate or coroner.

29. Those circumstances do not apply in Hong Kong. Coroners and magistrates are also rendering valuable service but they are fully paid public servants who appear in proceedings represented by the Attorney General and there is no question of them having to pay costs personally.

30. When a coroner or a magistrate files an affidavit and does not appear this is one matter relevant for the court's consideration but here the coroner appeared by counsel and vigorously contested the proceedings below. In these circumstances we see no reason in principle why the Court's discretion to award costs in such cases should be fettered in the way suggested.

31. Liu J thought himself fettered when he rightly decided that the coroner's behaviour here did not call for "strong disapproval" (or "strong sanction" as he put it.) Clearly had he thought otherwise he could have ordered that costs should follow the event. We think that the judge was wrong to think his discretion was fettered in this way in Hong Kong and for this reason we allowed the cross-appeal and ordered that CLP should have its costs below.

32. Finally, without argument to the contrary we ordered the costs of this appeal to CLP.

Representation:

Mr C.S. Grossman, Q.C. and Miss D.M. Crebbin (Attorney General's Chambers) for Appellant/Respondent

Mr Michael Beloff, Q.C. and Mr Clifford Smith (M/s Holman, Fenwick & Willan) for Respondents/Applicants