China Light & Power Co. Ltd. and Another v. Warner B G Banks

HCMP004148/1993

1993, No.MP4148

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon Liu, J. in Court

Dates of hearing: 27 and 28 January 1994

Date of delivery of judgment: 4 February 1994

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J U D G M E N T

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1. Two engineers were killed in August 1992 at the Castle Peak Power Station when a gas receiver exploded. The Coroner's jury at the inquest was called upon to enquire into the cause of and the circumstances connected with the death of each of these engineers. These were the matters for investigation in the fact finding exercise. The primary purpose was to ascertain how, when and where each of these engineers came by his death. Inquests Nos. 24 & 25 of 1993 commenced hearing on 26th April 1993. At its conclusion precisely a month later, the jury returned a verdict of death by accident in respect of each fatality.

2. The Coroner sat on 17 working days, 25 witnesses were called and 31 documents, including reports, photographs and plans were produced. It came to the knowledge of the Coroner that certain documents had not been made available for the inquests, and accordingly he wrote to the Attorney General. On 9th August 1993, the Attorney General required the Coroner to re-open the inquests. At the re-opened inquests, 2 further reports in relation to the fatal explosion were submitted together with the Station Data Log for the relevant period. Of the 5 witnesses at the re-opened inquests, only Dr Jack gave evidence on the causes of and the circumstances connected with the said deaths. The other four were involved with documents.

3. In performing their fact finding function, the jury was nevertheless unconcerned with having to select one of the two competing theories of the cause of the explosion in their verdict. The jury was directed, in the event that the new evidence had overtaken their original view, on the three possible verdicts, that is to say, death by lack of care, an open verdict, or wording their own verdict in a narrative form. The jury was correctly instructed that it would be a most unusual course to word their own verdict and that in the narrative form the words had to be chosen with great care so as to reflect accurately the circumstances connected with the deaths. The jury was also correctly told that an open verdict might, in general, be attempted where there was insufficient evidence to support any of the other verdicts after they had decided to displace their original view. In each case, the jury was gently guided towards reaching the verdict of "death due to lack of care" which was left as a possible verdict to the jury in their deliberation. The jury duly returned a unanimous verdict of 'death due to lack of care" for each of the fatalities.

4. The applicants were the interested parties. In the re-opened inquests they sought to challenge the legitimacy of the Coroner leaving the "lack of care" verdicts to the jury. They question the validity of the "lack of care" verdicts so returned. Pursuant to leave granted, in their amended notice of motion, the interested parties, as applicants, seek the following relief :

(1) A declaration that the Coroner erred in law in directing the jury that lack of care was an available verdict;

(2) An order of certiorari to quash the inquisitions given on 23rd November 1993 insofar as they recorded the verdict of death due to lack of care;

(3) A declaration that the verdicts of death by accident returned on 27th May 1993 by the Coroner do stand;

(4) A declaration that the Coroner ought to have directed the jury that in all the circumstances the only available verdict at the conclusion of the resumed inquests was that of death by accident;

(5) Any necessary and consequential directions;

(6) Costs.

In short, both the directions of the Coroner on the verdicts of "lack of care" and the verdicts themselves are attacked.

5. Stripped of all the emotive rhetoric, the law of Hong Kong, as the law of the United Kingdom, has treated the "lack of care" verdict as a term of art in its peculiar legal sense. There is no justification for extending the meaning of "lack of care" in the Hong Kong coronial context. In this case, the law did not permit the Coroner to leave "lack of care" to the jury as an available verdict. The verdicts of death due to lack of care returned in the re-opened inquests must therefore be quashed, there being no evidence of inequitable conduct or other circumstances to dissuade this court from exercising its discretionary jurisdiction in judicial review. The original verdicts of death by accident stand, and the circumstances of this case rule out the need for any remission or fresh inquests. These are the conclusions I have reached for the reasons I shall now develop.

6. The coroner inquest system began in the Middle Ages as a safeguard for Royal revenues but has now assumed the function of an inquiry into the cause of and the circumstances connected with the death of a person. The notions of "care" and "lack of care" are well but narrowly defined. In the coronial context, "the prime meaning (of the word 'care') is that of physical attention, preventing death from starvation, exposure or bad nursing or medical care". And "the history of the verdict 'lack of care' indicates that it is appropriate only to the physical condition of the deceased as causing the death and should not be used to indicate a breach of duty by some other person". See R. v. Southwark Coroner, ex parte Hicks [1987] I WLR 1624 at 1631C and 1633F, per Croom-Johnson L.J. These narrow concepts apply, with appropriate adjustments, to the "lack of care" verdict in the present day coroners' inquests. As a matter of fact, the "lack of care" form of verdict did not even appear in the 8th edition of Jervis on Coroners (1946). But the "lack of care" form of verdicts has since at least 1901 been returned under the rubric of "death by neglect". See pp.383 and 386 of the Brodrick Committee Report (1971). Croom-Johnson L.J. appeared to have erroneously taken the debut of the form of lack of care verdict back in time to the consolidating Coroners Act, 1887. See Hicks, Supra, p.1632B-C. In the 9th edn. of Jervis on Coroners (1957), at p.178 for the first time neglect was independently dealt with as "self-neglect" and "lack of care". "Self-neglect" is a special verdict which caters for "persons dying from self-induced starvation or exposure". "Lack of care" is on, so to speak, the other side of the coin. It is the obverse of "self-neglect". "Lack of care" is also a special verdict tailored for persons who died from causes arising from neglect, but had for various reasons been "incapable of looking after themselves and cannot, therefore, be said to have died of self-neglect". At p.179 of Jervis 9th edn. (1957), the author explained the characteristic of the "lack of care" verdict:

"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 r.33 of the Coroners Rule, 1953, (r.30 of our Coroners Rules), 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. It should also be noted that the verdict refers to lack of care and not to negligence. Lack of care implied something wider than legal negligence, and so the verdict can be used if the person caring for the deceased had a moral as opposed to a legal duty towards the deceased. It is, however, a verdict to be used with caution for it implies moral censure. So far the verdict has been used very seldom. If, of course, the lack of care amounted to manslaughter, that verdict would be returned; and if the death was caused by an accident, then even though lack of care caused the accident, a verdict of accident should be returned. The reference to death being aggravated which contains a hint of some continuing circumstance would appear to distinguish the verdict from that of accident." See paras. 13-39 at p.256 of the 11th edn. (1993).

7. In Hicks, supra, Croom-Johnson L.J. disassociated the existence of any range of duties from the concept of "lack of care". At pp.1633H-1634B, he was adamant that "there (was) no need to presuppose the existence of ... a range of duties". He continued:

"What the verdict of "lack of care' presupposes is that some other persons had at least the opportunity of rendering care (in the narrow sense of that word) which would have prevented the death. There is no need to go beyond that, although in many circumstances such persons would have had their duty, either legal or moral. The opportunity should have been a real opportunity of doing something effective." (Emphasis supplied).

It must be an opportunity of then and there doing something effective to save or sustain life. Croom-Johnson L.J. envisaged such an opportunity to arise from a dependent relationship, based either on a legal duty or a moral duty to take care (in the narrow sense). This view had been upheld in two of the below cases before Hicks and was shared by all the cases decided after. See R. v. Surrey Coroner, ex parte Campbell [1982] 1 QB 661, R. v. Walthamstow Coroner, ex parte Rubenstein [1982] Crim LR 509, R. v. Portsmouth Coroner, ex parte Anderson [1987] 1 WLR 1640, R. v. Coroner for Birmingham, ex parte Secretary States for Home Department (1990) 155 JP 107 (the Atwal case), R. v. H.M. Coroner for East Berkshire, ex parte Clara Buckley (1992) 157 JP 425,R. v. Coroner for Inland of London, ex parte Diesa Koto (1993) 157 JP 857, R. v. Poplar Coroner, ex parte Thomas [1993] 2 W.L.R. 547 (C.A.), R. v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson TLR 23rd July 1993 (D.C.), R. v. H.M. Coroner for South Yorkshire. ex parte Stringer and Others 5th November 1993 (D.C.), and R. v. Coroner for Western District of East Sussex ex parte Homberg, Roberts and Manners, 26th January 1994 (D.C.). The same legal concept was embraced by Hardie Boys, J. in the High Court of New Zealand. See CP445 of 1987 In re the death of Nancy Ruth Hendrie. deceased. The deceased's enjoyed no dependent relationship in the events and circumstances immediately surrounding their deaths. Also they had not been in any need of "care".

8. In Thomas, supra, at p.551F-G, Dillon L.J. aptly described "lack of care" as having a "narrow and somewhat technical sense" in the coronial context. In Jamieson. supra, at p. 12 of the transcript of judgment, Neill L.J. expressed some anxiety as to the current approach to the verdict of lack of care. But both courts, the Court of Appeal in Thomas and the Divisional Court in Jameison, felt obliged to "grapple with the legislation as presently it (stood)". Neill L.J. stated the existing law at p. 12 of the transcript :

"The court looks first at the physical or mental condition of the deceased at the time of death. If the death was caused by that physical or mental condition the court has then to consider whether that physical or mental condition was contributed to, or aggravated by, a lack of care. In the case where the cause of death is the physical condition of the deceased it may be quite simple to establish whether the absence of care, for example, a failure to give any medical treatment to a person who is obviously seriously ill, contributed to the cause of death. A case of suicide, however, is much more complex. In such a case, it is the act of the deceased himself which caused the death. The decided cases do not appear to go further than to establish that a finding that a lack of care contributed to the death may be appropriate in the case where a derange man who was in need of constant attention has committed suicide."

9. All the cases above referred to, except three, involved persons in custody or detention, looking to the authority for their basic needs. Anderson (a soldier dying of dehydration in a heat-stroke), Stringer (football fans being crushed to death) and Thomas (an asthmatic boy ceasing to breathe upon the late arrival of the ambulance) were cases considered on the basis that no real opportunity existed for doing something effective to prevent or delay death. Afterall, in an inquest only the immediate cause of and circumstances connected with the death need be examined. It is often described as the effective cause of death. There must be "a clear causal connection between the lack of care and the death". Hicks, supra p.1634H per Croom-Johnson L.J. It should be "closely and directly associated with the death" Buckley, supra, p.433A per Laws J. In Secretary of State for The Home Department (The Atwal case), supra, at p.119C, Hutchison, J. indorsed Croom-Johnson L.J.'s "causal connection" in Hicks. At p.124G-H, Walkins L.J. did not apparently favour extending such causal link to a more remote failure to avail an earlier opportunity to the deceased to receive assistance. In Homberg, supra, at p.24 of the transcript of judgment, Simon Brown L.J. rejected the so-called secondary causes of death. He spoke of "acts or omissions which are directly responsible for the death" and dismissed counsel's submission that the lack of care verdict could be introduced "whatever human failure (might) be thought to have contributed to the death". The Lord Justice was emphatic that "directness and immediacy of the carer's responsibility for the death" was the test. He concluded that to incorporate in such a verdict whatever in the way of contributory cause in a civil liability sense "would broaden and complicate the approach to inquest verdicts beyond any possible compensating advantage". See p.22 ibid. Applying this "casual connection" test in Homberg, the fault in providing no fire escape could not be targeted in a lack of care verdict. In the death of the asthmatic boy in Thomas, "the concept of lack of care as understood in this field of law" was held to be inapplicable to the late ambulance service. In Anderson, no indirect error including possibly that of the Royal Engineers Diving Establishment could support a lack of care direction. In Stringer, the police had even admitted negligence and paid compensation in a major disaster resulting in the deaths of 95 football fans, but the coroner's jury could not invoke the lack of care verdict to express their sentiments. Wherever the fault in these cases lay, it was not immediate. The cause of the deaths in the present case was the explosion of the gas receiver. Within the bounds of the meaning of "lack of care" in a coronial inquest, the explosion was the only close and direct causal connection in what was obviously not a dependency case.

10. In Buckley, supra, at pp.432E-433A Laws J. set out his three propositions for "lack of care":

"(1) A 'lack of care' verdict, whether free-standing or adjectival, is something wholly different, from a finding of civil negligence: If it were otherwise, the Coroner's court would be making direct findings as to the presence or absence of civil liability, and that is manifestly not the law.

(2) It follows that a 'lack of care' verdict, where it is appropriate, is concerned with circumstances much narrower than those engaged in a trial of civil liability for negligence.

(3) Such a verdict only properly arises where the jury are able to find that there was lack of care by some person or persons in the events and circumstances immediately surrounding the death. In the environment of a prison or special hospital, this cannot embrace any criticism of the regime in general, or, indeed, of the way in which the deceased person was generally looked after. In that context, 'lack of care' will only arise where some distinct act or omission is closely and directly associated with the death, as its cause or one of its causes."

11. In Jameison, supra, at p.12 of the transcript of his judgment, Neill L.J. accepted the propositions of Laws, J. as helpful subject to possible "refinement in some future cases". Supporting Lloyd L.J.'s view expressed in Koto, supra, he felt disposed to place also under "lack of care" deprivation over a long period in a case of dependency. Relying on the Atwal case, he suggested two further propositions:

(i) That a verdict of care should only be added by way of a qualification of some other verdict and should not be used as a free standing verdict on its own; and

(ii) That a verdict which includes the words "lack of care" might be appropriate in the case of a deranged man who, being incapable of forming any intention and known to be in such a condition that he required constant care, was neglected and as a result jumped through a window to his death.

12. In Homberg, Simon Brown L.J. preferred to indorse the propositions of Laws J. in Buckley with a further paragraph:

"(4) The verdict is the other side of the coin to 'self-neglect'; it can arise only in circumstances where the deceased was in a dependent relationship to the putative carer and where the lack of necessary physical care contributed to or aggravated whatever it was about the physical or mental condition of the deceased that required care. Obvious example would be a failure to treat someone seriously ill; to cloth, shelter or feed the very young or very old, to leave unsupervised a mentally disordered person who thereupon committed suicide."

13. It is reasonably clear that there is usually no dependent relationship between an employer and his employees. In this case of a gas receiver explosion causing death, there clearly existed no dependent relationship between the deceased's and their employer. Come what may, their employer could not be said to be responsible for the direct and immediate cause of death. There were no putative careers. The deceased's decidedly fell outside these propositions. According to the United Kingdom coronial law, therefore, in each inquest the "lack of care" verdict should not have been left to the jury and their verdict of death due to lack of care was not well founded. Nothing in the circumstances makes it inequitable or unjust to grant the directions and the order of certiorari sought by the applicants. Unless the law of Hong Kong would otherwise admit a "lack of care" verdict or unless the concept of "lack of care" for a coronial inquest should be extended locally, I would declare that the Coroner wrongly directed the jury that lack of care was an available verdict and quash the inquisitions insofar as they recorded the verdict of death due to lack of care.

14. Is the law in Hong Kong different from that of United Kingdom on coroners' inquests? It was submitted by Mr Grossman, counsel for the respondent, that the three Hong Kong decisions he cited all espoused a wider power for a Hong Kong coroner inquest. That would not seem to be the position. Historically, when s.56(1) of the Criminal Law Act 1977 relieved an English coroner inquest from having to consider making a "finding of any person guilty of murder, manslaughter or infanticide (by which a deceased came to his death)", r.23(c) of our Coroners Rules retained for Hong Kong that former power of inquiry in the United Kingdom. Rule 23(c) reads:

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

(c) the persons, if any, to be charged with murder, manslaughter, infanticide or causing death by dangerous (reckless since 1984) driving, or of being accessories before the fact should the jury find that the deceased came by his death by murder, manslaughter, infanticide or dangerous (reckless since 1984) driving."

See R. v. West London Coroner ex parte Gray (D.C.) [1988] 1 QB 467 at p.474; para.1-09 at p.7 and paras.13-28 and 13-29 at pp.251 and 252 of Jervis on Coroners, 11th edn. Our s.6 and r.23(b) relating to the ascertainment of how, when and where the deceased came by his death, are both sourced from the United Kingdom before the Criminal Law Act, 1977. The circumstances surrounding the death are still matters for proper investigation in the United Kingdom. Both at p.40 of Stringer, supra, and at p.18 of the transcript of the judgment in Homberg, supra, the third box in the prescribed form of inquisition in England provides:

"(3) Time, place and circumstances at which or in which injury was sustained."

Therefore, to all intents and purposes our r.23(c) is on a par with pre-1977 English law and our s.6 and r.23(b) are not dissimilar to English law even as it is practised today. In In Re The Medical Defence Union Ltd and M.J. Bascombe, [1991] 1 HKLR 429 at p.449E/F, Fuad V-P found no conflict between the duty imposed by s.6 "to inquire into the cause of and the circumstances connected with the death" and r.23(b) which enjoins the jury to inquire into "how, when and where the deceased came by his death". In fact, we are no different to-day from the pre-1977 position of the United Kingdom, where the concept of "lack of care" was as earlier stated. There has been no extension in our coronial power. The continued criminal aspect of our Coroner's jury cannot be said to reflect any legislative or other intent to broaden the same concept hitherto applying in Hong Kong. In the Medical Defence Union case, supra, at p.450A/B Fuad V-P was evidently not seeking to enlarge r.23(b) of our Coroners Rules. He merely found in "why" which was sought to be excluded, a distinction in semantic notion without any difference in the discharge by a coroner of his difficult task. The retention in our r.23(c) of the pre-1977 "means of detecting criminals and committing them for trial" (Hicks, supra, p.1631F/G) therefore provides no support for the proposition that the concept of "lack of care" in Hong Kong has acquired a more liberal meaning, including possibly the common sense English usage of those words.

15. All the three Hong Kong cases dealt with the range and scope of investigation in an inquest. The proper form of a verdict in the coronial sense of "lack of care" was not an issue. In In Re Medical Defence Union and Another [1990] 2 HKLR 44, the parameters of the investigatory power were sought to be delineated by reference to, inter alia, the "lack of care" verdict. In In Re Dr Steven S.H. Lee [1991] 1 HKLR 122, the limits of the coronial power to inquire into the cause of and circumstances surrounding the death were examined in the light of the traditional meaning of "lack of care", in line with the propositions set out in Thomas, Jameison and Homberg. The meaning of "lack of care" postulated at first instance in the Medical Defence Union case was at variance with the well-established concept followed in Dr Steven S.H. Lee case. When the Medical Defence Union case reached the Court of Appeal [1991] 1 HKLR 429, it was decided primarily on s.6 of the Coroners Ordinance and r.23(b) of the Coroners Rules that the Coroner and his jury were endowed with the power to conduct a wide-ranging investigation. As a matter of fact, in the Medical Defence Union case the "lack of care" verdict had been withdrawn at the inquest and was said by Kempster J.A. at p.454A to have been properly so. The majority of the Court of Appeal did not part company with the traditional meaning of "lack of care". In my view, the Hong Kong Law and the United Kingdom law on "lack of care" in the coronial sense are still on the same footing as indeed the Court of Appeal by a majority in Medical Defence Union and the Dr Steven S.H. Lee case unhesitatingly gave way to the United Kingdom concept.

16. Should the entrenched concept of "lack of care" be enlarged in Hong Kong? In the United Kingdom, never has any suggestion been made to extend the notion of this legal term of art "lack of care" to take on board civil liability in negligence. A day before the hearing of this case, Lord Justice Simon Brown expressed concern in the English Divisional Court that broadening the concept would "complicate the approach to inquest verdicts beyond any compensating advantage". See Homberg, supra, p.22 of the transcript. In reality, a verdict of accidental death is equally consistent with fault as it is with absence of any fault leading to the death. See Stringer, supra, pp.62 and 63 where a differently constituted Divisional Court approved the direction of the Coroner to the jury in the following terms:

"The word 'accidental' straddles the whole spectrum of events from Force Majeure or act of god. ... It straddles a whole range of events and the fact that the jury brings in a verdict of accidental death does not mean to say that nothing has not gone wrong. In other words, bringing in this verdict does not mean that you absolve each and every party from all and every measure from blame. ... You should understand that when you use that word (accident) you are not saying, ' I have decided that everything is perfect'."

An extension of the coronial meaning of "lack of care" is clearly uncalled for by the proper functions and purpose of the Coroner Court. In the Wright Committee Report (1936), in para.116 at p.33, it was noted:

"We have, however already pointed out that, in our opinion, the Coroner's jurisdiction ought to be limited to an investigation of the facts, how, when and where the death occurred. That investigation of facts should be clearly distinguished from the trial of liability, whether civil or criminal. The Coroner court is not equipped for such an enquiry: its procedure does not include the machinery for the decision of questions inter partes. There is no issue of liability properly before the court and no proper opportunity for the examination of the question of law with an issue of liability, whether civil or criminal, involved. The law provides appropriate tribunals for the settlement of questions of personal responsibility."

In para.119, at p.34, the Committee continued:

"All this does not mean that, if a Coroner adheres to what we regard as his proper duties - that is to say, to investigate the relevant facts as facts - the verdict may not have an important and perhaps in some cases a decision bearing on the questions of civil liability. ... At the inquest the facts can be, and should be, investigated with precision; but the civil law of negligence ..... is difficult and complicate and in our opinion nothing but harm can be done if the legitimate limits of the Coroner's jurisdiction are overstepped at the inquest."

17. In the Nancy Ruth Hendrie case in New Zealand, supra at p.11 of the transcript, Hardie Boys J. recognised, as we all do, that an inquest has a "useful social function" to serve.

18. Lord Laine, CJ, said in R. v. South London Coroner ex parte Thompson & Others (1982) 126 SJ 625 at p.626:

"... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, which ever metaphor one chooses to use."

In Thomas, supra, at p.553H Dillon L.J. echoed this sentiment:

"It is not the function of a Coroner's inquest to provide a forum for attempts to gather evidence for pending or future criminal or civil proceeding."

19. Rule 28 of our Coroners Rules does not even allow any person to address the Coroner or the jury as to facts.

20. In Hicks, supra, at p.1631F/G Croom-Johnson L.J. foresaw "a process of continuous change" in the powers of coroners. In Thomas, supra, at p.555E Simon Brown L.J. found no favour with "too narrow an approach to" the English equivalent of our s.6 which empowers a coroner to conduct an inquest. These observations were made exclusively with regard to the scope and range of the investigatory power. In my view, broadening the concept of "lack of care" to the extent as advocated by Mr Grossman would wholly disorientate our coronial inquest system. The proposed drastic variation would be inimical to its unique role. I know of no local circumstances which would justify such an extension. Hong Kong would be ill advised to disregard the propositions of Laws J. and Simon Brown L.J.

21. The other possible verdicts were rejected by the jury, namely manslaughter, suicide and an open verdict. For the reasons I have given, the "lack of care" verdict was not one properly returnable. There was no evidence otherwise in support of a "lack of care" verdict. Mr Beloff, counsel for the applicants, invited me to hold that a narrative verdict was, by its nature, descriptive and could not be accusatorial or inculpatory. That is clearly right, but at this stage it would be difficult to explore for my consideration every conceivable form of a returnable narrative verdict. Mr Grossman contended that since the jury had imputed fault, they should be able, by some other means, to re-state their view. That is not the real purpose of an inquest. Moreover, the inquest had once been concluded and once re-opened. The proceedings generated wide-spread interest. What was desired to be expressed by the jury as to fault had been, by courtesy of the press, well publicised. There seems to be no further need, at great expense in terms of time, costs and distress to those closely affected, for these sentiments to be reasserted, even if possible. There has been more than a wide-ranging investigation of facts. The jury gave recommendations in nine riders and, with the guidance of the Coroner, had chosen to add no more to them when they were re-empanelled. Imputation of fault, even if intended, permissible and suitably worded, in a narrative verdict would perhaps draw just as staunch a resistance from these applicants. The possibility of a new phase of litigation cannot be ruled out. The Coroner's Court is not a proper format for the debate. Even aided by a full direction on the coronial meaning of "lack of care", in addressing themselves to a narrative verdict imputing fault, assuming the jury could be again guided to elect to eject their original accidental death verdict, they would probably be very confused. An invitation to ignore the legal term of art "lack of care" now may not be readily or fully understood by the jury who deserve to be spared more agony. It is agreed, on all hands, that upon the quashing of the verdict of death due to lack of care, the verdict of death by accident would stand which is itself not inconsistent with fault leading to the deaths. In all the circumstances, it would not be in the public interest to remit these matters for further consideration by a re-re-empanelled jury.

22. I find it quite unnecessary to deal specifically with all the peripheral contentions advanced. I make declarations in terms of paras. 1 and 3 of the relief sought in the amended motion. It would be sufficient for me to, and I do, simply make an order in terms of its para.2. I further make an order nisi for costs against the respondent.

Representation:

Mr M.J. Beloff, Q.C. and Mr C. Smith, inst'd. by Holman Fenwick & Willan, for the Applicants

Mr C.S. Grossman, Q.C. and Ms D.M. Cubbin, S.C.C. of Crown Solicitor for the Respondent