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Cite as: [2017] NICA 15

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HK v Department of Justice [2017] NICA 15 (6 March 2017)


     

    [2017] NICA 15 Ref: WEI10230
       
    Judgment: approved by the Court for handing down Delivered: 06/03/2017
    (subject to editorial corrections)*    
    IN HER MAJESTY’'S COURT OF APPEAL IN NORTHERN IRELAND
    ________
    HK

    Plaintiff/Applicant

    and
    DEPARTMENT OF JUSTICE

    Defendant/Respondent

    ________
    Before: Gillen LJ and Weir LJ
    ________

    WEIR LJ (delivering the judgment of the court)

    The nature of the Application

    [1] The applicant applies to this court for leave to appeal against interlocutory orders made by Stephens J on 2 November 2015, 1 March 2016 and 7 November 2016. HK appeared in person with the assistance of a McKenzie friend while the Department of Justice was represented by Miss Murnaghan QC. At the outset the applicant sought the continuation in this court of the anonymity order made by Stephens J on 2 November 2015 and, the Department not objecting and we being satisfied that that the considerations which the judge then identified continue to be applicable, we ordered accordingly.

    The Background

    [2] Almost thirty two years ago, on 12 June 1985, the applicant’'s husband died suddenly. On the following day Dr Carson of the State Pathology Department (“"the Pathologist”") performed an autopsy. A copy of his report on autopsy was sent not only to the Coroner but also to the applicant’'s general practitioner. It is common case that the cause of death was given in that initial autopsy report as “"Gumma of the heart”". At one time the applicant had a copy of that report but later discarded it and no copy remains available from any source. A subsequent version of the report which is available gave the cause of death as “"Granulomatous Aortitis and Myocarditis”". A “"gumma”" of the heart is a form of Granuloma but its particular significance is that it results from the tertiary stage of the disease of syphilis. The Pathologist wrote to HM Coroner, Mr Elliott (“"the Coroner”") on 26 November 1985 enclosing two pages to replace the two corresponding pages of his initial autopsy report, the effect of which was to delete the reference to “"Gumma”" and substitute “"Granulomatous Aortitis and Myocarditis”".

    [3] This alteration resulted from a meeting that the applicant had had with the Coroner on 11 November 1985 during which she had expressed her great distress and disbelief at the finding that her husband had been suffering from syphilis which had led to the damage to his heart and in turn causing his death. The Coroner had indicated that he would ask the pathologist whether a more obscure description than “"gumma”" could be found and it was that which prompted the pathologist to issue the amending pages to his initial report. Significantly, in his letter to the Coroner enclosing those amendments he said, inter alia, the following:

    “"I have been greatly concerned about this case, in view of the implications, but I feel that I have now done everything that is within my power. I have consulted the experts here and in London before reaching the conclusions, and really it is in the best interests of the immediate family that the blood tests [for syphilis] should be been carried out on them. There is of course always the possibility that everyone consulted is wrong but unfortunately medicine does not at the moment seem able to come up with an alternative diagnosis, although who knows that in the future one may not be forthcoming.”" (emphasis supplied here and hereafter).”"

    [4] The applicant was not satisfied that the cause of her husband’'s death was in any way attributable to syphilis or that he ever had any such condition. She therefore actively and steadfastly continued to question that attribution and as a result a report was commissioned by the State Pathology Department from a Dr Mary Sheppard, Consultant in Histopathology at the Royal Brompton Hospital in London. She reviewed the original autopsy report and examined slides and sections preserved from the original examination. In her report dated 5 May 2005, some 20 years after the death, she observed as follows:

    “"Overall I totally agree with the original diagnosis of granulomatous giant cell aortitis and myocarditis and the differential diagnosis would include syphilitic aortitis which at that time in 1985 was considered the main cause of granulomatous aortitis. The pathologist mentions this when he noted “"There remains the remote possibility that some other causative agent, perhaps as yet unknown to medical science could have been responsible”". Since 1985, we have establishment many other causes of granulomatous giant cell aortitis and these include rheumatoid arthritis, systemic lupus erythematosis, giant cell arteritis, Takayasu arteritis and even polyarteritis nodosa. To definitively label this case a syphilitic aortitis, a Warthin Starry or other special stain must be performed on the blocks from the inflammatory mass to look for spirochetes, in the absence of definitive serological tests.
    I would presume his aortic disease was more likely due to an auto-immune disease given his elevated ESR and raised immunoglobulin. Reassure the family on this point. Personally I would have also been persistent too in their situation. I have personally looked at 20 giant cell aortitis cases, only one of whom had syphilis and this was proven serologically. One cannot be definitive on histology alone but this was not known in 1985.”"

    [5] Because the cause of death had seemed clear cut in 1985 no inquest had then been considered necessary by the Coroner and the death had been registered in accordance with the then findings. However, Dr Sheppard’'s report indicated that it was not syphilis but as H had always believed another cause, more likely auto-immune disease, had caused the aortic disease. Therefore, in order to correct matters, an inquest was held on 7 February 2008 before a different Coroner and the cause of death was found and recorded to be:

    “"(a) Granulomatous Aortitis and Myocarditis; and

    (b) Auto-immune disease.”"

    [6] While the applicant no doubt felt greatly relieved and gratified that her constant belief that the diagnosis of syphilis must have been wrong and at being thus entirely vindicated, she was not content to let matters rest there. On 2 November 2011 she personally commenced an action for damages, initially against the State Pathology Department and the Coroner’'s Service for Northern Ireland but subsequently amended so as to be against the Department of Justice (“"the Department”") on the basis of its being vicariously liable for the actions of the Pathologist and the Coroner. Put shortly, the thrust of her allegations is that the Pathologist was negligent in failing to accurately diagnose the cause of death and that the Coroner failed to hold an inquest and failed to adequately investigate the death of her husband. It is alleged that as a result the applicant has sustained a severe psychiatric injury.

    [7] For a period during the currency of these proceedings the applicant was represented by solicitors and counsel. The solicitors commissioned a detailed report from a Professor Vanezis, an English Consultant Forensic Pathologist, the final version of which is dated 3 September 2014. In it he reviewed the original autopsy report, answered questions posed by the applicant and commented as follows in relation to the Pathologist’'s conduct and findings in 1985:

    “"6. In his commentary he concludes on the basis of histological examination and with the confirmation of two of his colleagues that the correct diagnosis was syphilis. He also states that there is a remote possibility that there could be some other cause, although he states “"as yet unknown to medical science”". His conclusions overall were of the standard that would have been made by a substantial majority of pathologists at that time, taking into account the state of current knowledge of the prevalence of different conditions such as syphilis versus other causes of aortitis in 1985. He was aware of the sensitivity surrounding the case and conferred with other pathology colleagues for their views in reaching his conclusions.
    8. Overall, both the post-mortem examination, histological examination and conclusions reached, do not fall below the standard expected of pathologists engaged in non-criminal coroners’' cases at that time.
    9. From my examination of all the material provided to me, I did not find any evidence of negligence arising from the conduct of the autopsy …”"

    [8] At about the same time the Department’'s solicitors commissioned a report from the same Doctor, by then Professor, Sheppard, who had advised on the case in 2005. She had been provided with what must have been an earlier draft of the report of Professor Venezis which was dated 9 July 2014. In her report of 4 September 2014 she answered a series of questions posed to her as to the conduct of the Pathologist and his conclusions in 1985. None of her responses to the questions was critical of his conduct and she concluded by saying “"I think the pathologist did investigate the cause of death adequately for the time in 1985”".

    [9] In the light of these reports the Department’'s solicitors applied to the Master by notice dated 9 October 2014 to strike out the proceedings on the basis that the pleadings disclosed no reasonable cause of action and/or were an abuse of process and, in the alternative, for an order staying the proceedings on the basis that there was no liability evidence. The applicant, by then again appearing in person, was heard by the Master as was counsel for the Department and an order was made on 3 December 2014:

    (i) striking out any cause of action against the Coroner and giving judgment for the Department in respect of such cause of action; and

    (ii) staying the action in respect of the Pathologist until such time as the applicant produced expert evidence which supported the particulars of negligence against him.

    [10] The applicant appealed from the Master’'s decision to Stephens J who, having directed the Department to reformulate its application so as to more particularly define its nature and its basis, reheard the matter and delivered a reasoned judgment in the matter on 2.11.2015 (STE 9564). In that he set out the history of the matter and at para [30] he pointed out that, before a stay can be imposed or an action struck out, “"it has to be obvious, that is clear beyond reasonable doubt, that there is no evidence upon which the plaintiff can prove her case”". In relation to a case such as the present he said at para [31]:

    “"For a case to be hopeless the defendant has to establish not only that there is support from a responsible body of medical opinion for the diagnosis arrived at by its servants or agents but that the plaintiff does not have any evidence that a responsible body of medical opinion would have arrived at a different diagnosis.”"

    [11] At para [35] the judge proceeded to apply that test to the evidence available in relation to the Pathologist. He concluded as follows:

    “"[35] In support of the proposition that the expert evidence did not establish any case in negligence but rather exonerated the state pathologist I was referred to the report of Dr Shephard and to the report obtained by the plaintiff from Professor Peter Vanezis, Consultant Pathologist to the Home Office, the expert retained on her behalf. He concludes from his examination of all the material provided to him that he does not find any evidence of negligence arising from the conduct of the autopsy carried out by Dr Carson on the body of the plaintiff’'s husband. There is in this case no expert evidence to establish that Dr Carson was negligent. The burden is on the plaintiff to establish that Dr Carson arrived at a diagnosis to which no responsible body of medical opinion would have arrived, see Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 and Bolitho (Administratrix of the Estate of Patrick Nigel Bolitho (deceased)) v City and Hackney Health Authority [1997] 4 All ER 771. There is no such evidence. The evidence from Professor Vanezis and Dr Shepherd is that the diagnosis was appropriate given the state of medical knowledge in 1985. Accordingly, all the factors set out in paragraph [30] are present. I consider that on the present evidence that part of the plaintiff’'s case in negligence is hopeless.
    [36] I also consider that there is no evidence that could sustain an allegation of misfeasance in public office against the defendant based on the actions of the Pathologist.”"

    [12] The judge did not however, as the Master had done, stay that part of the action in respect of the pathologist until such time as the applicant produced expert evidence to support the allegation of negligence against him. On this he said as follows:

    “"[37] I dismiss that part of the plaintiff’'s appeal from the order of the Master that relates to the pathologist. The Master made an order staying the plaintiff’'s action “"with respect to any cause of action against the state pathologist Dr Carson, until such time as the plaintiff produces expert evidence which supports the particulars of negligence by the said Dr Carson”". I have given consideration to whether that is the appropriate order in this case given that the stay could be removed at any future date no matter how distant. Ultimately, there has to be an end to litigation. I consider that the plaintiff has had years to obtain expert medical evidence. She has had a further period of 10 months since the order of the Master in December 2014. She has had the benefit of legal advice from solicitors, junior and senior counsel. I consider that there is very little prospect of her obtaining expert medical evidence supporting a clinical negligence claim against the Pathologist but in the exercise of discretion I am prepared to allow the plaintiff a further 6 months to obtain such evidence. I will impose a stay in relation to that part of the plaintiff’'s claim that relates to the actions of the Pathologist until noon on 5 April 2016. I also order that unless the plaintiff serves on the defendant a medical report from an expert which supports a clinical negligence claim against the Pathologist on or before noon on 5 April 2016 that that part of the claim against the defendant is struck out with costs to the defendant. If she does serve such a medical report in time then she can apply to remove the stay.”"

    [13] On the second limb of the action, that alleging that the Department is vicariously liable for the actions of the Coroner, the judge determined the matter as follows:

    “"[33] Section 2(5) of the Crown Proceedings Act 1947 does not grant judicial immunity. Instead it grants immunity in tort to the Crown for acts done by judges in their judicial capacity. Accordingly, the Crown cannot be held vicariously liable for actions or decisions of a judge. These proceedings have been brought against the Crown (in this case the Department of Justice) on the basis of vicarious liability for the actions of the Coroner. Section 2(5) provides that no such proceedings shall lie against the Crown in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. If it is obvious, that is clear beyond reasonable doubt, that the Coroner was acting within the scope of his judicial functions then the proceedings against the Department of Justice should be struck out.
    [34] The plaintiff is a personal litigant and accordingly I have given consideration to the question as to whether the proceedings could be amended by adding the Coroner as a second defendant. Section 2(5) of the Crown Proceedings Act 1947 does not provide immunity to the Coroner, however I consider that Coroners are entitled to judicial immunity in respect of all acts done in the discharge of their duties see AG v BBC [1981] AC 303 at pages 355-356. However, it might be submitted that it is possible, in certain highly specific circumstances such as instances of misfeasance or bad faith that inferior court judges could be potentially liable for acts carried out beyond their jurisdiction.
    [38] I consider that it is obvious, that is clear beyond reasonable doubt, that the Coroner was acting within the scope of his judicial functions and accordingly given the provisions of Section 2(5) of the Crown Proceedings Act 1947, I consider that the proceedings against the defendant, that is the Department of Justice, are hopeless. I do not consider that there is any evidence of misfeasance or bad faith on behalf of the Coroner. I do not consider that there is any potential for amending these proceedings to add the Coroner as a second defendant on the basis that he was potentially committing acts beyond his jurisdiction. I dismiss the plaintiff’'s appeal in relation to that part of the Master’'s order which struck out from the plaintiff’'s Writ of Summons and pleadings all references contained therein to any cause of action in respect of the Coroner, with judgment to the defendant against the plaintiff in any such cause of action with respect to the said Coroner.”"

    [14] The applicant being dissatisfied with those decisions sought leave from the judge to appeal to this court. Her application was supported by a very long and detailed affidavit and similarly lengthy skeleton argument. Having heard submissions by the applicant and on behalf of the department the judge delivered a second written judgment on 1/3/2016, HK v Department of Justice (No:2). He applied to his consideration of the application the test expressed by Gillen LJ in Moffatt v Moffatt [2015] NICA 61 at para [13]:

    “"It is well established law that the test to be applied on a leave application is that leave should be granted unless there is no realistic prospect of success on appeal. See Smith v Cosworth Casting Processes Ltd Practice Note [1997] 1 WLR 1538G.”"

    [15] Having set out in summary the competing submissions of the parties he concluded that the key questions were:

    (i) the jurisdiction of the court to address allegations against the Coroner; and

    (ii) the absence of expert evidence to support the plaintiff’'s claim that the Pathologist acted negligently.

    [16] In refusing leave to appeal he concluded as follows:

    “"[13] There is no expert medical evidence to support the plaintiff’'s case against the pathologist and I consider that there is no realistic prospect of success on appeal in relation to that part of the order dated 2 November 2015.
    [14] I also consider that it is obvious, that is clear beyond reasonable doubt, that the Coroner was acting within the scope of his judicial functions and accordingly given the provisions of Section 2(5) of the Crown Proceedings Act 1947, I consider that the proceedings against the defendant, that is the Department of Justice, are hopeless. I do not consider that there is any evidence of misfeasance or bad faith on behalf of the Coroner. I do not consider that there is any potential for amending these proceedings to add the Coroner as a second defendant on the basis that he was potentially committing acts beyond his jurisdiction. I consider that there is no realistic prospect of success on appeal in relation to that part of the order dated 2 November 2015.”"

    [17] The time allowed by the judge in his first judgment for the provision of a medical report from an expert to support a clinical negligence claim against the pathologist expired on 5 April 2016 but no such report was provided within that time. On 10 March 2016 the applicant appears to have sought to make an application by way of affidavit for a 3 month extension of time which was couched in the following terms:

    “"I have engaged a pathologist in September 2015 who promises to send it as soon as he gets time. Since I have not yet received it I wish to make a request for a further 3 months.”"

    [18] It is not clear that that request came to the attention of the judge or of the solicitors to the Department because on 1 June 2016 the latter made an application to have struck out that part of the applicant’'s claim directed against the Pathologist to which the applicant responded by email of the following day applying for an extension of time and stating that she has:

    “"Engaged a pathologist in September 2015 who has promised to give me a report but he is very slow and difficult to make contact with.”"

    [19] The judge then directed, received and considered written submissions from the parties and further received oral submissions. By the date of that hearing still no pathology report had been produced although the judge recorded that the applicant told him of a conversation she had had with the pathologist in which he said that “"he would not be giving negligence”". There was no report, interim report, letter or other evidence from any other expert and the position remained that the applicant did not by the date of the third judgment given on 7 November 2016 have any expert medical evidence to support her claim against the Pathologist. The judge accordingly refused the application to extend time.

    The appeal to this court

    [20] On 19 July 2016 the applicant applied for leave to appeal to this court against the decisions of Stephens J. Whether this appeal was directed to the first or second decision is not clear. Technically it cannot relate to the third decision which post-dates the Notice of Appeal, however, in order to ensure that all the matters in issue are now dealt with by us we decided without objection by the Department to treat the appeal as encompassing all the decisions contained in the three judgments of Stephens J.

    [21] The Notice of Appeal was accompanied by a lengthy affidavit raising a great many points that are for the most part legally in error, irrelevant to the questions in issue or an attempt to re-litigate factual matters which the judge has decided. Unfortunately, they betray either an inability or a refusal and in whichever case a failure to understand and address the matters which are actually in issue. The applicant lodged a skeleton argument which may be similarly characterised and made diffuse oral submissions which ranged far and wide. She declined to recognise the effect of the Crown Proceedings Act 1947 Section 2(5) upon her claim against the Coroner but did ultimately accept in the course of our hearing that even by that date she still did not have any medical evidence to support her claim of negligence against the Pathologist. On the latter aspect she repeatedly said that she would be unable to obtain medical evidence unless and until she was provided with a copy of the original autopsy report which had given the cause of death as “"Gumma of the heart”", her own copy of which she had destroyed and no other copy being any longer available. In the course of both her oral and written submissions the applicant was disposed to make allegations of negligence and/or impropriety not only against the Pathologist and the Coroner but also against the hospital where the deceased had been treated in the months before his death, his general practitioner, Professor Sheppard and her former solicitors despite this court repeatedly reminding her that none of those persons or entities is a party to these proceedings.

    Consideration

    [22] We remind ourselves as did Stephens J that the well-established test for the grant of leave to appeal is that enunciated by Gillen LJ in Moffatt v Moffatt as set out at [14] above. In the course of applying that test we have looked in detail at the history of this matter since the death in 1985 and at the extensive documentation provided by the parties and have carefully considered the three detailed judgments of Stephens J which followed upon the initial decision of the Master. Having done so we do not discern any misapprehension of the facts or misapplication of the law on the part of Stephens J nor do we differ from his conclusion that the claims against the Pathologist and Coroner are without any prospect of success. Rather, we find that his conclusions are plainly correct and could not have been other on the material available to him and to us.

    [23] We do not overlook or underestimate the genuine and deep distress that the applicant suffered for many years on being told of and thereafter having had to live with what proved to be an entirely incorrect and most hurtful diagnosis of the cause of her husband’'s death. To her considerable credit she continued after that diagnosis to believe and assert that any connection with the disease of syphilis must have been mistaken so far as her husband was concerned. So indeed, twenty years later, it proved to have been and the applicant’'s constant opinion was entirely vindicated. However, the question for any court must be what was to be expected of the Pathologist in 1985 when he carried out the autopsy and made his diagnosis, a diagnosis made after consultation with two other colleagues? There is a complete absence of any medical or other opinion (except that of the applicant herself) that by the professional standards and medical knowledge of the time the Pathologist was negligent. The expert evidence, including that obtained by the applicant’'s solicitors, all points in the opposite direction. Even at the date of the hearing before us, some twelve years after it had become known that syphilis was not a factor in the death, the applicant conceded that she had been unable to obtain any such evidence. In our judgment its absence is fatal to any claim in negligence against the Pathologist.

    [24] We wish to say something about the applicant’'s contention that the absence of a copy of the original autopsy report giving the cause of death as “"Gumma of the heart”" is somehow an obstacle to the obtaining of the necessary evidence of negligence. This claim is in our view entirely without foundation. It is common case that the original cause of death had been expressed in that way and was, in order to make the connection with syphilis more obscure, later expressed instead as “"granulomatous aortitis and myocarditis”". The absence now of any copy of the first version of the report is nothing to the point. Everyone knows and has at all material times known about the change in the description of the cause of death and why it was made and indeed the report of Professor Venezis specifically refers to the change at paragraph 7. The irrecoverable absence of the original document is therefore no impediment to the expression of an opinion as to whether either the initial or the revised and more obscure form of words employed to describe the cause of death was the result of negligence by the pathologist.

    [25] Turning to the Coroner, the first point to observe is that he cannot sensibly be blamed for accepting the cause of death identified by the Pathologist and his pathology colleagues. From a consideration of the contemporaneous papers contained within the court bundles it is clear that the coroner was greatly concerned by the effect which the attributed cause of death had had upon the applicant. The applicant brought us to many of these documents in detail and they indicate a concern for her well-being and an anxiety to disguise so far as possible the cause of death from those who might come to see the death certificate by using a more obscure and less readily understandable medical description. This it was that led, following discussion between the Pathologist and the Coroner, to the reformulated wording. It is equally clear from the contemporaneous documents that the Coroner and the Pathologist were motivated only by a desire to reduce, if they could, the impact of the unhappy diagnosis upon the applicant. The suggestion that they were engaged, individually or together, in some deliberately discreditable yet unspecified behaviour is utterly unsupported by the documents or anything else then or since. That allegation appears to have arisen and lodged in the mind of the applicant as a result of her imputing to both the Coroner and the Pathologist in 1985 knowledge of all the advances in medical knowledge and processes in this area that had been arrived at by 2005 when Dr Sheppard first reported.

    [26] Stephens J found that the alleged acts and omissions of the Coroner of which the applicant makes complaint were performed by him while acting in the course of his coronial and judicial function. That conclusion is plainly correct and being so the applicant cannot succeed against the Crown represented in this case by the Department, because of the immunity conferred upon it by Section 2(5) of the Crown Proceedings Act 1947. This court agrees with the judge both as to the nature of the Coroner’'s activities and actions in the matter and as to the legal consequence that flows from the Crown immunity in tort provided for by the statute.

    [27] In all the foregoing circumstances we conclude that Stephens J was right to find that the claims against both Pathologist and Coroner cannot succeed and accordingly to refuse leave to appeal against his decision. We too for the same reasons have reached the same conclusion and accordingly refuse leave to appeal to this court.

    [28] We end by saying that it was very apparent to us at the hearing before us that this matter has consumed and continues to consume the applicant with a fierce though misplaced feeling of injustice concerning the events of 1985. She summarily brushed aside any point of law or matter of fact which ran counter to her apparently invincible belief that there is something to criticise in the way in which the Pathologist and the Coroner dealt with this matter then. She continues unshakeably to consider that she has some legal cause of action arising from what we fully acknowledge was the very upsetting diagnosis mistakenly given to her in good faith at that time. Five hearings by three differently- constituted courts have apparently not diminished that belief. It is to be hoped for her sake that other family members who are aware of the long and most unfortunate history of this matter, but perhaps better able to take a more dispassionate view of it, will use any influence they may have to encourage the applicant to desist from attempting to seek to further pursue this matter which could only lead to continuing dissatisfaction and unhappiness which must be most unhelpful to her after all these years and at this time in her life.


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