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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Touche, R (on the application of) v HM Coroner For Inner London North  EWCA Civ 383 (21 March 2001)
Cite as:  Lloyd's Rep Med 327,  3 WLR 148,  Lloyds Rep Med 327, (2001) 165 JPN 648,  2 All ER 752,  QB 1206,  EWCA Civ 383, (2001) 60 BMLR 170, (2001) 165 JP 526
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
LORD JUSTICE KENNEDY & MR JUSTICE MORRISON
Strand, London, WC2A 2LL
Wednesday 21st March 2001
B e f o r e :
LORD JUSTICE ROBERT WALKER
LORD JUSTICE KEENE
| THE QUEEN
|- and -
|HER MAJESTY'S CORONER FOR INNER LONDON NORTH
PETER FRANCIS TOUCHE
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr P. Havers QC & Mr S. Taylor (instructed by Alexander Harris of London EC1N 2JT) for the Respondent
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
"1a. Brain swelling and tonsillar herniation
b. Intra cerebral haemorrhage
2. Recent pregnancy"
"The Portland Hospital have already confirmed in writing to our client that a protocol does not exist to reflect the level of monitoring that should be given following a caesarean section. We have expert evidence to the effect that every NHS hospital in the country has a protocol in place for the care of patients in the post-operative phase in order to maintain standards within the hospital and ensure an appropriate level of patient care. It is disturbing that a private hospital with this reputation chooses not to adopt such a protocol."
The Coroners Act 1988
"Where a coroner is informed that the body of a person (the deceased) is lying within his district and there is reasonable cause to suspect that the deceased -(a) has died a violent or unnatural death;
(b) has died a sudden death of which the cause is unknown; or
(c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act, then, whether the cause of death arose within his district or not, the coroner shall as soon as practicable hold an inquest into the death of the deceased either with, or, subject to sub- section (3) below, without a jury."
The issue arising
"I asked myself whether this was a case in which the defects and human fault complained of lifted the case out of the category of natural and into a category of unnatural death and, applying my commonsense as a coroner, I concluded that it did not."
The ruling authority
"Whether Miss Thomas' death was natural or unnatural must therefore depend on what was the cause of death. At this point, I remind myself of the observations of Lord Salmon in Alphacell Limited v Woodward  AC 824, 847 where he said:
'I consider ... that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.'
Lord Salmon repeated what he had there said in his speech in McGhee v National Coal Board  1 WLR 1, 11 ..."
"I do not suggest that any of these scenarios fits the facts of Miss Thomas' case. I do not know what the cause of delay was. But in each of these scenarios common sense indicates that what caused the patient's death was, on Lord Salmon's test in Alphacell Limited v Woodward  AC 824, 847, the asthmatic attack, not the congestion of the traffic, the bursting of the water main, the malfunction of the computer or the inefficiency of the ambulance service. But the asthmatic attack is a natural cause of death, and the death is not, in my judgment, turned into an unnatural death by any of the facts suggested in any of the alternative scenarios. ... The coroner ... was saying that, even when all the other evidence is taken into account, the cause of death was still the asthmatic attack and the death was not an unnatural death. That is also my view for the reasons I have endeavoured to give."
"I agree ... that the question whether or not a death is natural or unnatural depends ultimately on the view one takes as to the cause of death. But I do not find the question of causation in this context susceptible of quite the same sort of robust approach that the House of Lords advocated in a very different context in cases such as McGhee v National Coal Board  1WLR1. The question arising there was: can the court properly infer, in the absence of a provable direct link, that one particular state of affairs caused or contributed to another. In those cases the possibility of there being more than one cause was immaterial. ... The question posed in the present context is surely therefore different: given that all the important facts are known to the coroner, what view should he take of causes that may well be secondary but are not self-evidently irrelevant? As in litigation why should he not sometimes find a death to be the result of two causes, either one of which could serve to make it unnatural."
"... it seems to me necessary to recognise that cases may well arise in which human fault can and properly should be found to turn what would otherwise be a natural death into an unnatural one, and one into which therefore an inquest should be held."
The Divisional Court's judgment
"So where, as in this case, a patient is in hospital suffering from a condition which if not monitored and treated in a routine way will result in death, and, for whatever reason, monitoring and treatment is omitted, then, as it seems to us, the coroner must hold an inquest unless he can say that there are no grounds for suspecting that the omission was an effective cause of death. That seems to us to be the conclusion to which one is led by a careful analysis of Thomas."
" ... we would prefer to see the coroner asking himself a question along the lines indicated earlier in this judgment, namely whether there are any grounds for suspecting that the wholly inadequate post operative monitoring and the consequential loss of the opportunity to provide timely treatment was an effective cause of death. If the coroner had approached the matter in that way it seems to us that his conclusion must have been different. ... In dealing with the statutory test omission can be as important as commission, and that, as it seems to us, is what ... the coroner failed properly to recognise and to evaluate."
"Nothing in this judgment is concerned with what may in due course be the appropriate verdict, so we have not found it necessary to consider 'lack of care' or two of the decisions to which we were referred (R v Southwark Coroner ex parte Hicks  1 WLR 1624 and R v North Humberside Coroner ex parte Jamieson  QB 1)".
The arguments on appeal
The jurisdiction issue
"Gave birth to twins by caesarean on 6.2.99 at Portland Hospital. Collapsed three hours later. Admitted to National Hospital on 7.2.99. Exam indicated spontaneous brain haemorrhage unconnected with surgical procedure. ... No evidence of neglect nor complaint by family. No PM required."
"(1) Where a coroner has reason to believe -(a) that a death has occurred in or near his district in such circumstances that an inquest ought to be held; and
(b) that owing to the destruction of the body by fire or otherwise ... an inquest cannot be held except in pursuance of this section, he may report the facts to the Secretary of State.
(2) Where a report is made under sub-section (1) above, the Secretary of State may, if he thinks it desirable to do so, direct a coroner ... to hold an inquest into the death."
The need for a jury
The wider argument
"Although I myself would have been disposed to include within the proper scope of such a verdict [neglect] the death of someone seriously ill or injured who would have been saved by medical care but for wholly unreasonable delay in the arrival of the emergency services, such a view is obviously inconsistent with the majority decision of the Court of Appeal in [Thomas]. That is not to say, owever, that a lack of care verdict, whether freestanding or in terms of aggravating some other cause of death, would offend ex parte Thomas. On the contrary, Dillon LJ's judgment clearly recognises the legitimate continuance of such verdicts whenever properly founded on the facts. I would therefore accept Mr Fitzgerald's submission that ex parte Thomas must be confined to the s.8(1)(a) context in which it arose; essentially it decides no more than that a broad common sense view must be taken when deciding the bald question whether a death is unnatural so as to determine whether to hold an inquest. Whereas, however, for that purpose one shuts ones mind to all but the dominant cause of death, once an inquest is held, the duty to inquire into 'how the deceased came by his death' requires one then to take a broader view and investigate not merely the dominant but also (in Jervis's language) any 'acts or omissions which are directly responsible for the death.'"
The costs below
"In my judgment, that situation [with regard to magistrates] is quite different from the situation here when a coroner is carrying out his important statutory duty to conduct an inquest. In this context the relevant principle appears to be that if a coroner not only files an affidavit but also appears and contests the making of an adverse order in an inter partes adversarial mode, then he or she is at risk as to costs. If, on the other hand, the coroner, as is fitting for somebody holding judicial office, swears an affidavit to assist the court and then appears in court, more in the role of an amicus than as a contesting party, then the court is likely to follow the normal rule set out in Jervis and make no order as to costs provided that it does not express strong disapproval of his or her conduct. ... It goes without saying that the Court is greatly assisted by coroners who depose to what took place before them and then appear in Court to assist the Court in an amicus role."
"If the coroner does appear at the hearing, and loses, then the court has a discretion whether to order the coroner to pay the successful applicant's costs, even though he acted reasonably. But such an order has only rarely been made; usually no order is made unless the coroner's behaviour called for strong disapproval. One additional factor against making a costs order is where the applicant is legally aided and therefore it would only be the public paying the public."
LORD JUSTICE ROBERT WALKER:
LORD JUSTICE KEENE: