Re Medical Defence Union Ltd.

HCMP001950/1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_____________

_____________

Coram: The Hon. Mr. Justice Barnett in Court

Date of Hearing: 30 and 31 January, 1 and 2 February 1990

Date of Delivery of Judgment: 15 February 1990

____________

ADDENDUM

____________

At page 41, following the paragraph ending "......... Dr. Bascombe's conduct" insert ：

In my view, this is reflected in the Rules which cater for the occasional enquiry in which there is a full-scale evaluation of conduct and which accord with the narrower construction of S.6. If the wider construction of S.6 for which Mr. Whaley contended is correct, I would have expected to find a more generous and comprehensive set of rules to provide for the inevitable detailed and lengthy enquiries.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_____________

_____________

Coram: The Hon. Mr. Justice Barnett in Court

Date of Hearing: 30 and 31 January, 1 and 2 February 1990

Date of Delivery of Judgment: 15 February 1990

___________

JUDGMENT

___________

1. In April and May 1989 the coroner, Mr. H.M. Sinclair, conducted an enquiry, pursuant to the Coroners Ordinance Cap. 14 (the Ordinance), into the untimely and unhappy death of Mrs. Shirley Ann Boyde. It is, I think, widely known that Mrs Boyde was having what was a relatively routine operation at Canossa Hospital on 14th January 1989 to reduce a fracture of her ankle. For this purpose she was given a general anaesthetic by the anaesthetist, Dr. Michael John Bascombe. Unfortunately, the hospital oxygen supply, unbeknown to everyone concerned, contained nitrogen. Mrs. Boyde received so much nitrogen that she ultimately died of cerebral anoxia.

2. Before the enquiry commenced, counsel on behalf of Dr. Bascombe wrote to the coroner's officer expressing concern that the coroner might direct the jury that a verdict of lack of care was open to them and that such a verdict would involve consideration of whether there was a failure to meet a fair and reasonable standard of care. Counsel cited authority in support of his view that lack of care is a very special verdict, requiring careful direction, and does not amount to a finding of, effectively, negligence. The coroner's officer replied, in a somewhat non-committal way, that in his view a verdict of misadventure aggravated by lack of care is permissible. He did not vouchsafe his view on the nature or meaning of lack of care.

3. Upon on the opening of the enquiry on 17th April, counsel took the matter up again because he apprehended the Hong Kong Oxygen Co. Ltd., which was responsible for supplying oxygen to the hospital, intended calling evidence with a view to establishing that negligent or inadequate medical treatment was the effective cause of death. The coroner ruled upon this. He said "the purpose of the enquiry is to make a full, frank and revealing investigation into all aspects of death - so far as they are relevant" and went on :

4. The enquiry lasted 5 weeks. Over a week was spent examining the medical and anaesthetic aspects of the episode, during which Dr. Bascombe was questioned persistently not just on what he did at the time but on his training, experience and knowledge. Expert witnesses were closely examined as to how a reasonable anaesthetist should have reacted when the emergency occurred. One expert clearly felt Dr. Bascombe fell short of such a standard another did not.

5. At the conclusion of the enquiry, counsel made a written submission on behalf of Dr. Bascombe reiterating that a lack of care verdict would be inappropriate. The coroner ruled that, subject to the evidence supporting it, such a verdict might be left to the jury. He went on to sum up to the jury, in the course of which he said :

6. That, it is agreed, is a careful and accurate direction for the purpose of determining whether a person has been negligent or at fault. However, after rehearsing the relevant evidence, the coroner directed that it was not open to the jury to consider care when it came to their verdict because :

7. The jury returned a verdict that death occurred "due to the wrong supply of gas to hospital".

8. Dr. Bascombe now complains that he was subjected to a harrowing and unnecessary experience, unnecessary not just because of the way in which the time factor made the bulk of the medical evidence irrelevant but because the coroner had no authority to conduct the enquiry in the manner in which he did. Together with the Medical Defence Union, he applies for judicial review of the conduct of the enquiry and for :

"A declaration that the learned Coroner erred in law and thereby exceeded his jurisdiction in that :-

9. Dr. Bascombe seeks no personal benefit from his application. He is concerned that fellow practitioners should not have to undergo the same ordeal and asks this court to clarify the law. The Medical Defence Union Ltd., however, while echoing Dr. Bascombe, also has a very real financial interest. Worldwide it has 175000 members including a large proportion of all Hong Kong practitioners. Its chief objects are the conduct of legal proceedings on behalf of members and giving advice on professional technical matters. Although retaining a discretion, it generally indemnifies a member from all damages and costs in legal proceedings. Unlike in other countries, it expends considerable funds on death enquiries in Hong Kong because, as it perceives the position, some coroners, as in the present case, regard it as their function to examine whether a medical practitioner exercised a reasonable standard of care and skill as being potentially relevant to a lack of care verdict.

10. Mr. Whaley, who appeared for the coroner, argued that the Union has no sufficient interest in the matter to which this application relates to give it locus standi. He referred me to the notes 53/1 - 14/31 in the Supreme Court Practice. He maintained that the Union has no direct or personal interest in the relief sought; that it was not a party as such at the enquiry; and that it would create an undesirable precedent if a body like the Union, which is little more than an insurer, can intervene to protect its own rather than a public cause.

11. For the Union, Mr. Thomas referred me to a number of authorities. Three I find particularly helpful. In R. v. Horsham Justices, ex parte Farquharson & Act (1982) 1 Q.B. 762, the justices made an order prohibiting any reporting in relation to certain committal proceedings. A journalist, his union and a local paper applied for certiorari to quasn the order, which the Divisional Court did only to refer the matter back to the justices. On appeal by the journalist and the union, Lord Denning M.R. said at p. 787 :

"Locus standi

12. In R. v. Her Majesty's Treasury, ex parte Smedley (1985) 1 Q.B. 657, a British taxpayer challenged the validity of a draft Order in Council. On appeal, Sir John Donaldson M.R. said at p. 667 :

13. R. v. Secretary of State for Social Services and Act, ex parte Child Poverty Action Group and Ors, (1989) 3 W.L.R. 1116 concerned a manual giving guidance from the Secretary of State concerning the supplementary benefit scheme. At p. 1128, Woolf L.J. said :

"The fact that the court is not required to give declaratory relief also means that it is unnecessary for the court to deal with the question of the applicants' locus standi to make their application for judicial review. In the court below Schiemann J. 's judgment records that, because of the importance of the issue, the Secretary of State and the Chief Adjudication Officer did not dispute the issue of locus standi while making it plain that they reserved their right to argue the point of locus standi in analogous cases in the future. Before this court the Secretary of State and the Chief Adjudication Officer wishes to adopt the same position but indicated that, if this court required argument, they were prepared to advance the argument. Mr. Beloff indicated that he would have relied on the decision in the Scottish case of Scottish Old People's Welfare Council, In re, 1987 S.L.T. 179. This court did not require. Mr. Beloff to advance the argument which he wished to reserve. However, we make it clear that in our view the question of locus standi goes to jurisdiction of the court and therefore the approach adopted by the department in this case, while understandable, is not appropriate. The parties are not entitled to confer jurisdiction, which the court does not have, on the court by consent and, if this court had peen minded to grant declaratory relief, would have had to advance any arguments which were available to them or to accept the consequences of not doing so. Having regard to the outcome of this appeal we can content ourselves by indicating that, on the evidence but without the advantage of argument, we have not doubt that it was in order for this court and Schiemann J. to treat the application for judicial review as being one which the court had jurisdiction to hear."

14. The applicants in the latter case would never themselves be applicants for benefit. They would however be closely involved in advising individuals of their rights in relation to such benefit. I see a close kinship with the position of the Union.

15. As urged by Mr. Thomas, I am persuaded that interest should be construed broadly. An important question is raised. I am satisfied that the Union has sufficient interest to give it locus in this application.

16. The applicants put forward 2 grounds for the relief which they seek. First, it is submitted that the Coroner, on a true construction of the Ordinance and Coroners Rules (the Rules), exceeded his jurisdiction and powers. Second, it is said that the enquiry was conducted in a manner which was unfair to Dr. Bascombe, that is to say in breach of the rules of natural justice. While standing on its own, Mr. Thomas also used it in support of his first and principal ground.

17. In so far as it is a separate ground, I will deal with the latter first. Immediately I must emphasise, as Mr. Thomas was at pains to acknowledge, no attack is made upon nor complaint made about the way in which Mr. Sinclair conducted the enquiry. Mr. Sinclair, it is fairly acknowledged, was patient, courteous and did his best to ensure that everyone said or asked what they wanted, subject to relevancy and subject to the Rules prescribing for procedure at a death enquiry. So much is evident from the transcript of the proceedings.

18. Mr. Thomas' argument was that, if the coroner is right about the extent of his jurisdiction, the Rules are inherently flawed. He said that the rules of natural justice apply to a coroner's enquiry : Maksimovich v. Walsh and the Attorney-General (1985) NSWLR 318 where Samuels J. A. said at p. 337 :

19. At the very least, the argument went, a person must be advised of any matters to be alleged against him and given the opportunity to deal with them, by calling evidence if necessary : Peter Thomas Mahon v. Air New Zealand Ltd and Ors. (1984) 1 A.C. 808.

20. Mr. Whaley did not address me on this point. I am content to accept the argument. I would have been surprised had the contrary been advanced.

21. The Rules provide :

22. Mr. Thomas complained that the Rules contain no provision for notifying the person of the grounds. I would observe only that the Rules do not prohibit such notification but rather prescribe the bare minimum that must be done. Whether anything more is ever done is perhaps debatable because the coroner himself appeared vague about precisely what is notified - see p 670 Transcript.

23. Next it was said Dr. Bascombe was given no notification of what would be said against him. It is true he received no formal notification from the coroner or his officer. It is clear from the transcript, however, that Dr. Bascombe and those advising him knew what was in the wind. They raised it early in the enquiry. While there is a dispute as to whether or not the coroner's officer was prepared to supply them with copies of witnesses', particularly expert witnesses', statements or reports before the enquiry opened (on which I express no opinion), it is clear that the officer was prepared to make them available at the hearing. Those documents would undoubtedly have shown Dr. Bascombe precisely what he could expect. Therefore any failure formally to notify Dr. Bascombe in advance was cured at that stage.

24. Then it is said Dr. Bascombe suffered because he was unable to grapple with matters raised by medical witnesses called after him. As to that, I have 3 observations. First, the documents would have permitted Dr. Bascombe's counsel to tackle these matters with him. Second, the coroner would no doubt have considered sympathetically an application to recall Dr. Bascombe or for an adjournment to gather additional material. Page 671 of the transcript certainly suggests this. Third, an expert whose evidence was favourable to Dr. Bascombe was called by the coroner at Dr. Bascombe's instigation. I consider that there is nothing in this point.

25. Further, Rule 13 gives the coroner a discretion as to the order in which a witness shall be questioned. I have no doubt the coroner would sympathetically have entertained a request that Dr. Bascombe's counsel be first to question him.

26. Rule 28 provides that "no person shall be allowed to address the coroner or the jury as to the facts". This provision, argued Mr. Thomas, both suggests that it was unlikely that a public enquiry into someone's conduct was ever contemplated, and is wholly unfair, removing as it does the usual right to address a tribunal after the evidence has been heard. Assuming that the coroner correctly found the ambit of his jurisdiction, there seems to me nothing in this point. The provision may be undesirable if a detailed enquiry into an individual's conduct is justified by the legislation, but if the legislature sees fit to include it, so be it. In practical terms I see little difference between this and the prohibition on legal representation before certain tribunals. A layman can add very little to what he says in evidence.

27. In my judgment Dr. Bascombe was not treated unfairly. This ground must fail.

28. I turn then to examine the extent of a coroner's jurisdiction. It is common ground that a coroner's enquiry is a thorough fact finding enquiry but is not concerned to find or apportion guilt or fault : R v. South London Coroner, ex parte Thompson (1982) Times L.R. 372. Mr. Thomas argued that such an enquiry admits of asking a person what he did or did not do, why, and what he had in mind; it does not admit of going on to ask questions aimed at discrediting his actions or of leading other evidence with that purpose. The facts thus established will speak for themselves. An evaluation of a person's conduct is beyond a coroner's remit.

29. Mr. Whaley said that it would be wholly artificial to draw a line there. It is permissible for a coroner to go on and lead evidence that is relevant to establishing a cause or contributory cause of death. Provided the evidence is adduced for that purpose the fact that it may overlap with the possibility of fault or negligence on the part of a witness is unfortunate. An evaluation of a person's conduct, judged if necessary in relation to what are the reasonable standards of such person's calling or profession, is inevitable if a proper and thorough enquiry into the cause of death is to be made.

30. The coroner's jurisdiction is to be found, prima facie, in s. 6 of Cap. 14 which reads:

"(1)  Whenever any person dies suddenly, or by accident or violence, or under suspicious circumstances, or whenever the dead body of any person is found within the Colony or is brought into the Colony, a coroner may, if he considers that an inquiry is necessary, inquire into the cause of and the circumstances connected with the death of such person, with or without a view of the body as he may think fit, and may determine the cause of death."

31. Mr. Thomas argued that "determine" relates only to "cause of death" and not to "circumstances connected with the death". "Circumstances" he said are included only in so far as they may assist in determining cause. It is not clear, however, what is encompassed by "circumstances". The section has a broad meaning and, in order to ascertain its limits, resort may be had to the Rules.

32. Mr. Whaley contended that, unless there is some indication in the Ordinance to the contrary, which there is not, the words of S. 6 should be given their plain and ordinary meaning. The words give, and were intended to confer, a broad jurisdiction to carry out a full and thorough enquiry. There is no need to find a limit to "circumstances" which admit of no ambiguity.

33. I find myself unable to accept that contention. In my experience, "circumstances" is commonly used as a catch-all of no great precision. Whilst I accept, as does Mr. Thomas, that there was intended by the legislature that there should be a full and vigorous examination of the cause of a death, I cannot accept that there was intended an almost carte-blanche on the part of a coroner to examine, as the coroner here put it, "all aspects of the death" - p. 25. To accept the latter, would mean a quasi-commission of enquiry if a coroner was so minded.

34. It is permissible therefore to look at the Rules as an aid to construction: Hanlon v. The Law Society (1981) A. C. 124, where at p. 193 Lord Lowry said :

35. Mr. Thomas said that propositions (1), (3) and (4) are relevant. I reject (4), the Rules having been made some 2 years after the Ordinance came into effect.

36. Relevant Rules are :

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

(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.

37. These, said Mr. Thomas, tend to confine an enquiry and evidence to particular matters rather than permit an open-ended examination of every circumstance connected with the death. Rule 23 contains specific language restricting the enquiry "solely" to certain matters. In particular para. (b) does not refer to "why" or "by whose fault. Whilst para. (c) does raise questions of evaluation of conduct, it is limited to specific criminal offences.

38. Rule 24(1) is in strong language restricting opinion effectively to matters contained in Rule 23 (b) unless para. (c) is also applicable.

39. Rule 30 provides not merely that a verdict shall not determine civil liability but that it shall not even be framed in such a way. A fortiori, argued Mr. Thomas, no question should be framed which appears to establish such liability nor should evidence be led for such a purpose. If this approach is right, individuals will be encouraged to give an honest account of what happened, which can only be in the public interest.

40. The Rules show therefore that the Chief Justice, who is the rule-making authority, was anxious that an enquiry should not become entangled in questions of civil liability. The only question to be determined is how and not why a death occurred.

41. Mr. Thomas said that, if that argument is wrong, one would have expected better provision for the rules of natural justice and conduct of the proceedings. In the absence of, indeed, because of the exclusion of certain rights, it is unlikely that a public examination of conduct was contemplated.

42. I have already referred to rules 15 and 16. In addition to the lack of provision to notify a person of any allegations about his conduct, Mr. Thomas pointed out that there is no other reference to person and conduct in the Rules. Therefore those 2 rules can only relate to rule 23(c) and, together, do not confer a general power to call in question the conduct of anyone outside of the matters laid down in rule 23. To hold otherwise would be inconsistent with rule 24 (1).

43. Again, I have referred already to rule 28. Mr. Thomas made the additional point that a person caught by rule 23(c) will have an opportunity to answer any charge later on. It is unfair that a person can be brought into a public enquiry, questioned about his conduct with a view to obtaining damaging evidence but not have the opportunity to address the tribunal at the conclusion of the evidence.

44. This case, said Mr. Thomas, is a perfect illustration of the unsatisfactory situation that can arise if a coroner has a wide jurisdiction.  Dr. Bascombe was, by the verdict of the jury, effectively "acquitted" of any fault or blame because of the time limit factor. Much criticism was, however, made of him and that criticism remains largely unresolved, particularly in the mind of the public at large.

45. In Ex parte Minister of Justice; Re Malcolm; Re Inglis and Coroners Act 1960-1963 (1965) N.S.W.R. 1598, McClemens J. was reviewing the sufficiency of an enquiry that found the cause of death in a man, who had become seriously ill at work, to be pneumonia. At p. 1604, he said :

46. Mr. Thomas contended that the coroner's duty is to establish the real or effective as opposed to the medical cause of death and that an enquiry based on such a duty does not require investigation of contributory causes. Indeed, the Ordinance itself speaks of the cause and not causes. In this case, he said, the effective cause of death was clearly the introduction of nitrogen into the hospital's system and ultimately into Mrs. Boyde. There was no warrant for investigating what might have happened thereafter, only what did happen.

47. Just as the problem of causation has bedevilled philosophers, so has the verdict "lack of care" bedevilled lawyers. It appears that in Hong Kong there are 2 schools of thought amongst coroners - one, that of Mr. Sinclair; the other, that the verdict is restricted to a death that occurs because of starvation, exposure or similar causes brought about by self-neglect or the failure of other persons properly to look after the deceased. The former, it is thought, has contributed to the view that a coroner may legitimately evaluate conduct. The verdict was examined with some care by a Divisional Court in R. v. Southwark Coroner, ex party Hicks (1987) 2 All E.R. 140. At p. 144, Croom-Johnson L.J. said :

48. That case was cited with approval by another Divisional Court in R. v. Portsmouth Coroner, ex parte Anderson (1988) 2 All E.R. 604 Which concerned a soldier who suffered heart stroke during training. At p. 610 Mann J. said :

49. Earlier, yet another Divisional Court had considered whether such a verdict conflicted with the equivalent of rule 28 of the Hong Kong rules; R. v. Surrey Coroner, ex parte Campbell (1982) 1 Q.B. 661. At p. 675 Watkins L.J. said :

"We must now decide whether, on the facts, the coroner has exceeded or failed to exercise his proper jurisdiction. Section 4(3) of the Act of 1887 requires a coroner and his jury to inquire 'who the deceased was, and how, when, and where the deceased came by his death.' If a coroner withdraws from the jury a verdict which should be open to them, he is improperly restricting their answer to the question, "How?" This would, in our view, be failure to exercise his jurisdiction. Mr. Sedley submits, and we agree, that in this case the coroner was apparently concerned hot to transgress rule 33 of the Coroners Rules 1953 as amended by the Coroners (Amendment) Rules 1977. That rule now reads:

It is immediately apparent that there may, in some cases, be a possibility of conflict between rule 33(b) and the duty under section 4 to inquire "how" the deceased came by his death. Mr. Sedley therefore submits that rule 33(b) is ultra vines. This apparent conflict is discussed in a passage in Jervis on Coroners, 9th ed. (1957), p. 179, in a section dealing with the verdicts of 'Self-neglect and lack of care.' The passage reads:

'The verdict of lack of care is recommended where a person who, owing to his inability to look after himself, is being cared for by others, dies and his death is due to starvation or exposure or similar causes brought about by the failure of such other persons to look after him properly. There is an obvious danger that such a verdict will conflict or appear to conflict with rule 33 of the Coroners Rules 1953, which forbids the verdict to appear to determine any question of civil liability. To avoid such conflict the verdict is careful to refrain from stating that the death was aggravated by the lack of care of any particular person or persons and merely states that it was aggravated by lack of care. There is, therefore, no suggestion that any person owed a duty of care towards the deceased breach of which would render that person liable for civil or criminal negligence.'

50. Accepting the final remarks of Watkins L.J., Mr. Thomas contended that a lack of care verdict is only appropriate where a deceased has been deprived of the essentials of life such as food, warmth or medicine. He said that it is the obverse of self-neglect and might more accurately be termed "want of care". Further, it can be the real cause or an aggravation of the real cause. However, the neglect or want of care must precede the physical condition leading to death. Thus, in the present case, although Dr. Bascombe was a link albeit unwitting in the chain by which Mrs. Boyde was given nitrogen, anything he did or did not do thereafter did not aggravate cerebral anoxia but only failed to ameliorate it.

51. Mr. Thomas also suggested that Watkins L.J. was there equating "circumstances" with facts, from which inferences may be drawn.

52. A recent New Zealand case (unreported) bore considerable similarity to this case: Louw v. McLean, High Court of New Zealand, CP. 445/87. An anaesthetist, who thought it probable his conduct was likely to be questioned, asked the coroner not to admit evidence which tended to discredit him or to establish some form of liability on his part. The coroner declined to make the orders sought. In dismissing the application for review, Hardie Boys J. said:

"Nonetheless, for an inquest to have a useful social function it must I think be able to go beyond the mere medical cause of death. I agree with the comment in Halsbury's Laws of England 4th edn vol 9 para 1110, note 1, that the coroner must also investigate "the circumstances surrounding the death". This must necessarily involve in this case not only a determination of the procedures that were employed, but also a determination as to whether the correct procedures were employed. If the evidence does not enable the Coroner to determine that, then he must not do so. But if it does, then I consider that it is part of his function to do so. This is not necessarily the same thing as allocating blame. That is not the Coroner's function. There are other means of doing that..... By the same token it would be wrong for the inquest to become a civil or a disciplinary trial. But if in order to ascertain or explain how death occurred, in the wider sense of the events that were the real cause, the implicit attribution of blame is unavoidable, then, as the Coroner himself observed, "so be it". This was the view taken by Watkins LJ in R v Surrey Coroner, ex parte Campbell [1982] 2 All ER 545, 555, where in discussing a possible conflict between the duty imposed by s. 4 of the Coroners Act 1887 and the Rule

prohibiting the determination of civil or criminal liability, he said that the conflict "must be resolved in favour of the statutory duty to inquire whatever the consequences of this may be". As the same learned Judge observed in R v West London Coroner, the difficulty, if there be one, is usually capable of resolution by careful drafting of the finding. And he added:

'Interested parties may look at the circumstances of the case and seek to draw from them and the verdict an inference or inferences as to blameworthiness on someone's part for causing death. That is almost inevitable. It can be neither avoided nor legislated against. So long as on the face of the inquistion the verdict does not give the appearance of identifying by name or otherwise anyone as blameworthy for the cause of death, r. 42 is complied with.'

53. "Procedures" as used there, said Mr. Thomas, relate to procedures laid down, e.g. the operating instructions of a particular piece of equipment. It is legitimate to see if they have been followed. That apart, he contended that the judge was there grappling with the line that a coroner has to draw, and clearly drew it where he himself asks me to draw it.

54. For his part, Mr. Whaley said that Louw equally clearly expressed his basic argument: that evidence may be led which may have the effect of indicating blame, provided it is led for the purpose of establishing cause. It is not permissible, he said, to limit the word "procedures" as contended for. Correct procedures must be determined in order to ascertain whether there was a falling short of proper standards and, if so, whether that contributed to death.

55. The lack of care verdict, he said, should likewise not be restricted. Nothing in Campoell prevented an evaluation of medical treatment as long as it is causally relevant, while the reference in Hicks to "bad nursing or medical care" put the matter beyond doubt. The principle, he said, is whether the person was responsible for the deceased's survival.

56. I find myself unable to accept this view of the "lack of care" verdict. I accept that the passages from the judgment of Croom Johnson L.J. in Hicks, which I have set out, are not perhaps as clear as Mr. Thomas suggested. However, the thrust, in my view, is of something falling far short of a legal evaluation of conduct. In the same case, Peter Pain J., after agreeing with Croom Johnson L.J., went on at p. 149 :

"It seems to me very proper that in such an inquiry the question whether there has been any lack of care should be considered. I reiterate what Croom-Johnson LJ has already said, that in this context the inquiry should be whether the prisoner has been properly cared for whilst in custody. It bears no relation to the question whether there was a duty of care in the Donghue v Stevenson sense(see M'Alister v Stevenson [1932] AC 562, [1932] All ER Rep I) and whether that duty or care has been breached."

57. In my judgment, "lack of care" means conduct on the part of a person who had some responsibility towards the deceased, which caused or contributed to the physical condition bringing about the medical cause of death. That conduct should be judged or evaluated according to the standards of the reasonable man, that is to say, the jury, rather than the standards as laid down by experts whose views may often be conflicting. In other words, would the members of the jury, having heard what happened, say "We would not have allowed the deceased to get into that state."

58. In reaching this conclusion, I have been at pains to bear in mind that a lack of care verdict flowing from evaluation of conduct might be permissible if the legislation defining a coroner's jurisdiction warrants such an evaluation. Having found therefore what constitutes such a verdict in the light of English authorities based upon English legislative provisions, I must not allow that to affect my construction of the Hong Kong legislation. If the Hong Kong legislation is of wider ambit, it may admit of a wider lack of care verdict.

59. Coming to the construction of the Ordinance, I think I can summarise the points made by Mr. Whaley without doing him an injustice :

60. As the passage from Campbell shows, a coroner's jurisdiction in England is confined to the matters appearing in Hong Kong Rule 23(a) and (b). The English coroner is not enjoined, like his Hong Kong counterpart, to enquire "into the cause of and the circumstances connected with the death". Nor has he powers to ascertain who, if anyone, should be charged with murder etc, or to make recommendations. He is, on the face of it, far more circumscribed.

61. With these points firmly in mind, I am nonetheless satisfied that the legislature did not intend that a coroner should carry out a wide-ranging investigation of 'all aspects' of a death involving, as it often seems to do, a microscopic examination of the conduct of a person who may have made a contribution, or been a link in the chain leading, to death. Such an enquiry entails the expenditure of much time and money. I do not think such expenditure of public funds justified when there are so many professional, disciplinary and watch-dog bodies to follow up any suggestion of improper conduct or matters of public concern that the evidence may produce. And there is certainly no warrant for an individual having to mount an expensive defence of his reputation.

62. I find it unrealistic to draw the line where Mr. Whaley asks me to draw it. For all practical purposes, an enquiry conducted as this one is a trial of the liability of the person or persons under attack in the strict civil sense. Duty of care (usually undisputed, I imagine), breach thereof which involves establishing appropriate standards and whether there has been a falling short of these standards, and finally whether any breach caused or contributed to the death, must necessarily be examined. However it is dressed up, such an enquiry is not just an unfortunate overlap into the field of civil liability, it is the same exercise. The only real difference I can see is that an enquiry, by law, does not after all that name anyone.

63. In my judgment, a coroner is charged with finding the effective cause of death. That involves finding the facts - what was done, what was not done and why. Such findings will undoubtedly show a person in a bad light from time to time. No doubt inferences may be drawn, as watkins L.J. accepted. The coroner must not then go on to evaluate conduct to see if there may have been some contributory cause of the death when the effective cause will usually be plain and obvious.

64. Having come to this conclusion, I am satisfied that the lack of care verdict, as I earlier found it to be, is equally applicable in Hong Kong. I venture to suggest it might more appropriately be termed "want of common care".

65. I do not, however, rule out the evaluation of conduct entirely. Clearly it is of crucial importance in relation to the possible criminal charges. It may also be crucial in determining whether some intervening factor was the effective cause of death - see Malcolm, Inglis. Thus, if Mrs. Boyde had died during the operation from a cause other than that found, it might well have been proper to evaluate the surgeon's or Dr. Bascombe's counduct.

66. In the present case, the coroner did not have the benefit of my view of a lack of care verdict. Had he done so, I have no doubt the enquiry would have taken a very different course. He would have appreciated that the supply of nitrogen effectively led to the anoxia, through no fault of Dr. Bascombe although of course he was a link in the chain of causation. He would have appreciated that there was no lack of care as I have now defined it. He would largely have confined his investigation to the supply of nitrogen - and indeed he spent much time on that.

67. It is possible, of course, that as the evidence came out the coroner might have felt constrained to investigate Dr. Bascombe's conduct more vigorously. Indeed, in the course of any enquiry the evidence may warrant the investigation of someone hitherto largely uninvolved. If so, the coroner has ample powers to adjourn the enquiry, notify that person (preferably providing details of what is alleged) and resume the enquiry when that person has had a reasonable time to prepare and respond.

68. It follows therefore that I think the coroner misdirected himself in dealing with Dr. Bascombe as he did. I do not however propose to grant the declaration sought. From what has gone before, Dr. Bascombe is vindicated in the approach he adopted before the coroner while coroners generally nave, I hope, some guidance as td their jurisdiction for the future. The declaration would be personal to Dr. Bascombe and, in the circumstances, would be otiose and academic.

Representation:

Mr. M. Thomas, Q.C. & Mr. P. Graham instructed by Johnson, Stokes & Master for Plaintiff

Mr. B. Whaley, S.C.C. & Mr. Y.M. Liu, C.C. of Crown Solicitors for Coroner