Dr. Gilbert Tien v. William Lam Esq., Coroner

HCAL 207/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.207 OF 2002

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Coram: Hon Hartmann J in Court

Dates of Hearing: 1 and 2 September 2003

Date of Judgment: 2 September 2003

Date of Handing Down Reasons for Judgment: 18 November 2003

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REASONS FOR JUDGMENT

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Introduction

1.The applicant in this matter is a medical practitioner. On 7 December 2001, while working in a clinic run by Cathay Pacific Airways for the benefit of its staff, the applicant was consulted by Ms Chinen Akiko, an air hostess. The applicant prescribed treatment for what he at the time diagnosed to be a respiratory infection. During the consultation no questions were asked concerning Ms Akiko's recent travel history. In fact, some two weeks earlier Ms Akiko had been in South Africa and had taken a trip to a game park where she had been bitten by a mosquito.

2.After that first consultation, Ms Akiko's condition deteriorated and three days later, on 10 December 2001, she consulted a second doctor in the same clinic. On this occasion she was diagnosed as suffering from influenza. She was prescribed treatment and advised to return in two days if her condition did not improve. Again, no questions were asked concerning her recent travel history.

3.By the morning following her second consultation Ms Akiko's condition had worsened to such a degree that she was taken by ambulance to the Canossa Hospital. Blood tests were conducted and the initial diagnosis of cerebral malaria made by the doctor at the hospital was confirmed. Appropriate treatment was given. By then however the patient's condition was too far advanced and she succumbed to the malaria.

4.In September 2002, an inquest was held into the death of Ms Akiko. It was conducted pursuant to the provisions of the Coroners Ordinance Cap.504 ('the Ordinance'). That Ordinance had come into force in May 1998, replacing the earlier statute (of the same name) and the subsidiary legislation made under that earlier statute.

5.The inquest was held with a jury. As such, the coroner was subject to the responsibilities imposed upon him by the Coroners Rules, specifically r.16 which reads :

"Where the coroner sits with a jury, he shall -

(a) sum up the evidence to the jury;

(b) direct the jury as to the law before the jury consider their findings; and

(c) draw the jury's attention to sections 27 and 44 of the Ordinance."

6.In terms of the Ordinance, read in conjunction with its subsidiary legislation, more particularly the Coroners (Forms) Rules, if a coroner or a jury conclude that a deceased died from natural causes or from an occupational disease, want of attention at birth or drug abuse, the rider may be added in appropriate cases that the death was one 'to which neglect contributed'.

7.During the course of the inquest, evidence was given concerning the need for the earliest possible diagnosis of cerebral malaria. Early treatment is invariably successful treatment, delayed treatment is far more problematic. In directing the jury, the coroner reminded the members of that evidence and canvassed the issue whether, if Ms Akiko had been asked about her recent travels when she first sought medical help and had revealed that she had recently returned from an area where malaria is endemic, that might not have led to an early diagnosis of her true condition and to successful treatment. The coroner directed the jury that, if it concluded that death had been from natural causes, it was open to it to add the rider that it was a death 'to which neglect contributed'.

8.The possible 'neglect' identified by the coroner was the failure of the applicant and the second doctor in the clinic to obtain details of Ms Akiko's recent travels. As the coroner put it : a simple question may have saved Ms Akiko's life.

9.On 25 September 2001, after deliberation, the jury concluded that Ms Akiko had died from natural causes 'to which neglect contributed'.

10.Following that verdict, the applicant instituted judicial review proceedings. Broadly, the applicant sought the following :

(i)	a declaration that the coroner had misdirected the jury as to the meaning and extent in law of the phrase 'to which neglect contributed' as that phrase appears in the Coroners (Forms) Rules;
(ii)	a declaration that the coroner erred in law in leaving it open to the jury to return a verdict of death from natural causes 'to which neglect contributed'; and
(iii)	an order of certiorari to quash the verdict of 'death from natural causes to which neglect contributed' to the extent only of the rider 'to which neglect contributed', leaving the verdict therefore as simply : death from natural causes.

11.At the end of the hearing, being satisfied that the coroner's directions to the jury as to the meaning of the phrase 'to which neglect contributed' were fundamentally flawed in law and that, on a correct interpretation of the phrase, it should not have been left open to the jury to reach a verdict incorporating the rider, I made the declarations sought and quashed the verdict of the jury to the extent that it included the rider. My reasons for so doing are stated herein.

Inquests under the Ordinance

12.The Ordinance provides for the holding of inquests which may be held with a jury of five persons. S.27 of the Ordinance states that the purpose of an inquest shall be -

" ... to inquire into the cause of and the circumstances connected with the death [of a person] and, for that purpose, the proceedings and evidence at the inquest shall be directed to ascertaining the following matters in so far as they may be ascertained -

(a) the identity of the persons;

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

(c) the particulars for the time being required by the Births and Deaths Registration Ordinance (Cap.174) to be registered concerning the death; and

(d) the conclusion of -

(i) where the inquest was held without a jury, the coroner who held the inquest;

(ii) in any other case, the jury concerned, as to the death."

13.In respect of the obligation detailed in s.27(b) of the Ordinance to ascertain 'how ... the person came by his death' I am satisfied that this obligation has brought no change to either the earlier legislative regime or the established practice in terms of which the question to be decided is a limited factual question of the means by which the person came by his death and not in what broad circumstances he did so. As Sir Thomas Bingham M.R. observed in R v. H.M. Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1994] WLR 82, at 99 :

" It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how ... the deceased came by his death,' a more limited question directed to the means by which the deceased came by his death."

14.It was not previously, nor is it now, the function of an inquest to determine matters of civil liability, for example, who, if anybody, may have been negligent. S.44(1) of the Ordinance states that -

"Neither a coroner nor a jury at an inquest shall -

(a) frame a finding in such a way as to appear to determine any question of civil liability;

(b) subject to subsection (2), express an opinion on any matter other than a matter referred to in section 27. [supra]"

15.The Ordinance states that at the conclusion of the inquest the findings of the coroner or the jury shall be recorded in a prescribed form. In this regard, s.43(1) of the Ordinance is to the following effect :

" At the conclusion of an inquest the coroner shall record in the prescribed form his findings or the findings of the jury and in a case where there is a jury each juror shall sign the findings."

16.S.53 of the Ordinance empowers the Chief Justice to make rules inter alia prescribing the forms to be used under the Ordinance. Pursuant to this power, the Coroners (Forms) Rules came into law at the same time as the Ordinance itself; that is, in May 1998. In those Rules, Form 12 is the form prescribed for recording the findings of the coroner or the jury at the conclusion of an inquest.

17.Form 12 contains various notes. Paragraph 4(a) of these notes says that in the case of a death from natural causes or from an occupational disease, want of attention at birth, or dependence on, or non-dependent abuse of, drugs, it is suggested that one of the following phrases should be employed; namely -

"The deceased died from natural causes.

The deceased died from the occupational disease of .........................

The deceased died from dependence on drugs/non-dependent abuse of drugs.

The deceased died from want of attention at birth."

The paragraph continues by saying :

"(In any of the above cases, it is suggested that the following words may, where appropriate, be added 'to which neglect contributed')."

The coroner's interpretation of the phrase

18.The phrase 'to which neglect contributed' had not appeared in the earlier Hong Kong legislation. Nor unsurprisingly, given the comparative youth of the new legislation, were there any Hong Kong cases dealing directly with the meaning of that phrase as it appeared in the Coroners (Forms) Rules. It was therefore left to the coroner to decide upon its meaning and extent.

19.On behalf of the applicant, it was submitted that the phrase did not mark an extension of the scope of matters to be ascertained by the coroner or a jury at an inquest but rather bore the same meaning as the phrase 'lack of care', a phrase enshrined in the coronial history of England and Hong Kong. The new phrase was chosen, it was submitted, because it avoided the confusion between the restricted meaning of 'lack of care' in its coronial sense and the lack of care which forms the foundation for a claim of negligence in common law. In short, it was said that the change in phraseology had had a single and limited purpose; that is, to clarify an existing ambiguity or source of confusion which had hampered coroners and juries in the discharge of their functions. As such, a verdict containing the rider 'to which neglect contributed' bore the same narrow and somewhat technical meaning as a verdict of death due to lack of care.

20.The coroner, however, was not of this view. As I understand his ruling, it was to the effect that the word 'neglect' in the new legislative regime, while obviously it was not to be confused with 'negligence', was not simply a new description of the old concept of 'lack of care'. In that sense, there was therefore no 'link', as he put it, with earlier authorities and the phrase 'to which neglect contributed' was to be interpreted free of the constraints of earlier authorities and was therefore to be given its plain meaning. He concluded that -

" 'Neglect' does not need to be 'a complete neglect'. As long as the omission has 'contributed' to the death, this is sufficient."

21.In his address to the jury, the coroner illustrated his understanding of the meaning of the phrase by making a direction in the following terms :

" 'Neglect' need not be a 'complete neglect', as long as the neglect has 'contributed' to the death. To illustrate the difference let me give you an example of each. An example of a complete neglect is parents not feeding a two-week old baby for a week and the baby dies ... Now obviously the baby might have died from dehydration or hunger or illness or whatever it is, that will be death from natural causes, that will be death to which neglect contributed. This is an example of a complete neglect. But what I am saying to you is 'contributing to a death' does not need to be complete neglect ... An example would be this: an ambulance driver neglecting or omitting to put a street map inside the ambulance and hence, when told to take a patient to hospital, he loses his way and ... the ambulance arrives late and the patient dies from bleeding from a knife wound in the abdomen. Here the ambulance does arrive, only it arrives too late. So this is not a case of a complete neglect, but the death is obviously contributed to by a neglect and this was from omitting to put a street map inside the ambulance. The lack of a street map did not cause the death because it is the knife which caused the death, but the lack of a street map clearly contributed to the death because if the patient had been in hospital earlier he would have survived."

22.On that basis, all that need be found is that there was some neglect; that is, some omission, even if not gross and even if only momentary in nature, which played a contributory role in a person's demise. Nor it seems need the omission have arisen out of a relationship of dependency.

23.In my judgment, if that interpretation given by the coroner is correct, it would materially, indeed radically, widen the traditional scope of coronial inquests. Was such an opening of the coronial gates intended? I am satisfied it was not. To the contrary, I am satisfied that the introduction into the 1998 legislative regime of the phrase 'to which neglect contributed' was intended solely to avoid the difficulties encountered in the ambiguity of the old phrase 'lack of care'. In short, I am satisfied that the submissions made on behalf of the applicant both before the coroner and myself were correct in law. I have come to that conclusion on the basis of two authorities, first, the 1994 judgment of the English Court of Appeal in R v. H.M. Coroner for North Humberside and Scunthorpe, ex parte Jamieson (cited ante, para.12) and, second, the 1995 judgment of the Hong Kong Court of Appeal in China Light & Power Co. Ltd and Another v. Warner B.G. Banks Esq., Coroner.

A consideration of 'Jamieson' and 'China Light & Power'

24.In Jamieson, the English Court of Appeal was concerned to unequivocally define the meaning and extent of the verdict of 'lack of care'. In explaining why, Sir Thomas Bingham M.R. said that -

" The courts have had occasion to consider the verdict 'lack of care', and the circumstances in which lack of care could properly be found to have contributed to or aggravated a cause of death, in a number of cases since 1981. Despite the rulings given by appellate courts, problems continue to arise both for coroners seeking to conduct inquests and direct juries in accordance with the law as they understand it and for those interested in the death of a deceased person seeking to explore the full circumstances of the death and draw lessons which may prevent repetition. Coroners do their utmost to confine the proceedings before them within the bounds of what they consider to be proper. Interested parties not infrequently strain to pursue their quarry well beyond the bounds set by the coroner. It is not desirable that uncertainty should persist."

25.In reviewing the law relating to 'lack of care', the Master of the Rolls made reference to R v. H.M. Coroner for South Western District of East Sussex, ex parte Homberg (unreported) 26 January 1994, citing with approval the dicta of Brown LJ, who said that the verdict of 'lack of care' 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 examples would be a failure to treat someone seriously ill; to clothe, shelter or feed the very young or very old, to leave unsupervised a mentally disordered person who thereupon committed suicide."

Brown LJ in Homberg expressly rejected the argument that a jury at an inquest could incorporate into its verdict whatever human failure it might decide contributed to the death :

" It seems to me one thing to recognise a verdict of 'lack of care' - the essential dependency of the relationship between deceased and carer emphasising as it does the directness and immediacy of the carer's responsibility for the death; quite another to incorporate within the verdict itself whatever in the way of contributory causes could ultimately found a successful civil liability claim. That would in my judgment broaden and complicate the approach to inquest verdicts beyond any possible compensating advantage."

26.In Jamieson, in his stated conclusions, Sir Thomas Bingham spoke of the difficulties that had dogged verdicts of 'lack of care' :

" Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression 'lack of care' may for practical purposes be deleted from the lexicon of inquests and replaced by 'neglect'." [my emphasis]

27.In preferring the word 'neglect' to the phrase 'lack of care', the Master of the Rolls went on to coin the phrase 'to which neglect contributed', doing so in the following context :

" A verdict that, for instance, 'the deceased died from natural causes [or industrial disease, or drug abuse] to which neglect contributed' would seem perhaps more apt than a verdict that 'the deceased died from natural causes [or industrial disease, or drug abuse] aggravated by neglect', since 'aggravated' in this context means 'made worse', and in truth the neglect probably did not make the fatal condition worse but sacrificed the opportunity to halt or cure it." [my emphasis]

28.As to the meaning of 'neglect' (as it was, for example, to be read in the phrase 'to which neglect contributed') the Master of the Rolls described the meaning thus :

" 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 dependant person's condition, whether physical or mental, appeared to be."

29.I turn now to the second authority, that of China Light & Power. In that judgment the Hong Kong Court of Appeal was concerned with a 'lack of care' verdict reached in a local inquest, finding that there was no good reason for holding that an inquest in Hong Kong 'should widen its scope to enquire into breaches of statutory or common law duty by employers responsible for industrial undertakings'. In the course of his judgment, Mortimer JA (as he then was) referred to Jamieson, recommending that the statement of the law propounded in that case 'should be applied in the coroner's and other Hong Kong courts'. The recommendation was made in light of the finding earlier made in the judgment that there were no material differences to be found in English and Hong Kong coronial legislation and practice. Mortimer JA then made specific reference to the concerns expressed in Jamieson as to the risk of confusion in 'lack of care' verdicts and said :

" 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'."

Here then, in plain terms, following the recommendation in Jamieson, was a direction that the phrase 'lack of care' should be abandoned in coronial practice in Hong Kong and should be substituted by 'neglect'.

30.The China Light & Power judgment, as I have said earlier, was handed down in January 1995. A year later, in January 1996, the new Coroners Bill was gazetted, its first, second and third readings being completed by April 1997. The Bill was signed by the then Governor on 1 May 1997 to come into force in May of the following year. The Coroners (Forms) Rules were themselves gazetted on 16 May 1997. In light of this chronology and the directions given by the Court of Appeal in China Light & Power the use of the exact phrase coined by Sir Thomas Bingham in Jamieson in the new Hong Kong legislation can only have been intended to avoid the difficulties spoken of in those two judgments. In short, the purpose of the introduction of the new phrase 'to which neglect contributed' was not to broaden the scope of inquests or to guide them in a new direction but, as I have said, was solely to clarify an existing ambiguity with the substitution of more appropriate wording.

The meaning of the phrase

31.'Neglect' was defined in Jamieson, that definition being approved by the Hong Kong Court of Appeal in China Light & Power. That being so, the meaning of the phrase 'to which neglect contributed' is itself to be found in Jamieson. 'Neglect', in the context of the phrase, is not therefore, as the coroner directed the jury in the present case, any omission which it is found contributed to the death of a person. 'Neglect' in coronial proceedings bears a restricted, technical meaning. It is the obverse of self-neglect; namely, the abandoning of oneself so that one no longer takes measures to secure the fundamental necessities that keep body and soul together. 'Neglect', in the context of the phrase, is therefore (to cite Jamieson) 'a gross failure to provide adequate nourishment or liquid, or to 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'.

The quashing of the rider in the present case

32.As I have made clear, I am satisfied that the coroner's directions to the jury in the present case as to the meaning and extent of the phrase 'to which neglect contributed' were misconceived in law. As such, the verdict of the jury cannot stand.

33.I am further satisfied, however, that, in the factual circumstances of the present case, the rider was manifestly never one that was open to the jury. Assuming that a causal connection could be established between the failure (if it be such) on the part of the doctors to ask appropriate questions and the death, in my judgment, that failure went to the quality of the medical attention; that is, to its level of expertise, and did not in any way suggest 'neglect' as defined in Jamieson. On both visits to the clinic by the deceased, consultations were held, diagnoses were made and treatment was prescribed : that is not 'neglect' in the coronial sense.

34.In Hospital Authority v. Rodney Venning Esq., Coroner [1995] 1 HKC, in considering a verdict of death by natural causes 'aggravated by lack of care' in respect of the death in hospital of a new born child, Barnett J made the following observations :

"I suppose if a person is admitted to hospital but left without the attention even of a nurse, that might amount to an insufficiency of medical treatment amounting to lack of care. Once a person is in hospital, however, and under management, as was [the mother of the child], almost by definition there can be no lack of care. The quality of the medical treatment might, as here, be called in question but that gives rise to very different considerations from lack of care. [The mother] was attended by midwives and from time to time by a doctor. There simply was no lack of care in the sense in which it is now understood in coronial proceedings."

I consider those observations to be entirely apposite to the present case.

Conclusion

35.For the reasons given herein, I made the declarations sought by the applicant and further granted an order of certiorari removing into this court and quashing the verdict of the jury to the extent of expunging the rider 'to which neglect contributed'. As I said at the conclusion of the substantive hearing when making the declarations sought and granting the order of certiorari, I am satisfied that it would not be appropriate in this case to order a new enquiry.

36.As for costs, there will be an order nisi of no order as to costs, that order to be made final within 30 days of the handing down of these reasons for judgment unless an application is made within that time to seek a different order.

Representation:

Mr Adrian Huggins, SC leading Mr Douglas Jones, instructed by Messrs Johnson, Stokes & Master, for the Applicant

Mr Russell Coleman, instructed by Department of Justice,for the Respondent