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IN THE SUPREME COURT OF JUDICATURE LTA 96/6397/D
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(MR JUSTICE TUCKER)

Royal Courts of Justice
Strand
London WC2

Thursday 24 October 1996

B e f o r e:

LORD JUSTICE ALDOUS
LORD JUSTICE BROOKE
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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

THE QUEEN

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H M coroner FOR SURREY
EX PARTE IRENE WRIGHT

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
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Miss D Breese-Laughram (Instructed by J R Jones, London W5 3TA) appeared on behalf of the Applicant.

The Respondent did not attend and was not represented.
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J U D G M E N T
(As approved by the Court)
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©Crown Copyright

JUDGMENT

LORD JUSTICE ALDOUS:

Mrs Irene Wright seeks leave to appeal out of time against the order of Tucker J of the 14 June 1996 dismissing the applicant's motion for judicial review.

The background facts are sad. The applicant was the mother of Mr Vassell Wright. On 27 November l992 he was admitted as a day surgery patient to Ashford General Hospital for the removal of four wisdom teeth. The extraction did not go smoothly and after three teeth had been extracted the operation was terminated and a decision taken to admit him overnight. He was taken to the recovery area. Sometime later he was discovered in a cyanosed state. Resuscitation was sufficient to enable him to be taken to intensive care where he remained until his death on 5 December 1992. A post mortem established that Mr Wright died from cerebral neurosis due to cerebral anoxia caused by an obstruction to his airway which happened in the recovery area.

An inquest was held on 4 and 29 March 1993. It was adjourned to enable the police and the Crown Prosecution Service to consider the case, and was not concluded until 13 October 1994. The verdict of the coroner was that Mr Wright died by accident.

The applicant sought, and was granted, leave to seek judicial review of the coroner's decision that Mr Wright had died by accident, with the purpose of having the coroner's decision quashed and a further inquest ordered. The application came before Tucker J who, in a reserved judgment handed down on 14 June 1995, refused the relief sought. The applicant now seeks leave to appeal to this court on a number of grounds.

1. THE JURY ISSUE

One of the main complaints against the coroner was that he failed to empanel a jury, although requested to do so by counsel who appeared on behalf of the applicant. The coroner needed a jury if he had reason to suspect that the death occurred in circumstances, the continuance or possible recurrence of which was prejudicial to the health or safety of the public or any section of the public (see section 8(3)(d) of the Coroners Act 1988).

Before the judge, three matters were relied on as constituting "circumstances, the possible recurrence of which would be prejudicial to the safety of the public or a section of it". First, the possibility that a green mask had been used; second, the continued use of the dynamap monitor; and, third, the management, or lack of management, of the crash team. The judge considered each of those complaints. As to the complaint about the mask, the coroner concluded that the mask was clear. As to the monitor he held, as was the fact, that it had been sent away for checking before the inquest had started. Thus, those two matters were not such as to raise matters within the section.

As to the management, or lack of management, of the crash team, the judge said:

"This matter has caused me some concern. It might be regarded as the strongest of the circumstances upon which Mr Croxon relied in submitting that a jury should have been empanelled. Nevertheless, having given the matter careful consideration, I am not persuaded that the coroner misdirected himself in any material respect, or acted unreasonably in the Wednesbury sense. The question of who was in charge on this occasion was entitled to be regarded as an individual rather than a systemic failure. In my opinion the coroner's decision not to summon a jury cannot be stigmatised as wrong in a public law sense."

It was submitted before us that in view of the various problems in training, coordination and procedure which had been uncovered as a result of Mr Wright's death, that it should have appeared to a reasonable coroner that there was reason to believe that the death occurred in circumstances, the continuance or possible recurrence of which would be prejudicial to the safety of any section of the public.

I accept that a coroner could have come to a different conclusion to that reached by this coroner. I believe that that was the effect of Tuckey J's judgment. However, we have to consider whether it is arguable that no reasonable coroner, properly directing himself to the matters, could have come to the decision he did. I, like a judge, believe that it cannot be said that the conclusion reached was Wednesbury unreasonable and, therefore, the judge's conclusion that the decision not to summon a jury could not be stigmatised as wrong in a public law sense, was correct.

It was also submitted that the judge applied the wrong test when he concluded that the difficulties of management were individual rather than a systemic failing. The statutory test concerned "continuance or possible recurrence" and I do not believe the judge by using the words he did failed to apply himself to the correct test.

2. THE VERDICT:

The coroner found that Mr Wright died by accident. It seems that the hospital accepted that his death was caused by negligence as liability has been accepted in a civil suit brought by the applicant. It was submitted on behalf of Mrs Wright that upon the evidence the coroner's decision was unreasonable and that the correct verdict should have been that he died by lack of care and/or neglect and there was clear evidence to that effect.

The judge believed that the coroner was right to conclude that a verdict of lack of care was inappropriate. He believed that Sir Thomas Bingham MR in R v HM Coroner for North Humberside ex parte Jamieson JPR 158 made that clear. In my view that conclusion is not open to doubt. Sir Thomas Bingham said at page 1033H:

"(8) 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`."

The indication in that judgment is clear. The words "lack of care" are not appropriate to a decision in a case such as this.

As to the verdict of neglect, Sir Thomas Bingham MR said at page 1034:

"(9) 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 dependent person's condition, whether physical or mental, appeared to be."

The judge concluded that the findings of fact made by the coroner did not amount to neglect. He said:

"It is open to the coroner to record a verdict of death as a result of neglect. In a case where he considers such a verdict to be appropriate. Mr Croxon urges me alternatively to substitute such a verdict in the recent case - the form of words he proposes are that `Vassell Wright died on 5th December 1992 of cerebral necrosis due to cerebral anoxia sustained whilst unconscious and recovering from anaesthetic at Ashford Hospital, as a result of neglect`. Mr Croxon submits that at the relevant time, the patient was in a dependent position due to anaesthesia, and that there was a failure to provide medical attention for him when he obviously needed it.

However, in my opinion, the `neglect` referred to by the Master of the Rolls in Jamieson means continuous or at least non-transient neglect. It is not an appropriate description of the negligent lack of care which is alleged to have led to the death in the present case."

It was submitted that that conclusion was wrong. The coroner sent the papers to the Crown Prosecution Service which it was said meant that he considered it possible that the doctors would be charged with a crime, such as manslaughter. It was submitted that that amounted to at least a suspicion of neglect.

In my view, the judge came to the right conclusion. "Neglect" does not mean "negligence" or "omission of an act". It is not an appropriate description of the negligent lack of care which happened in this particular case.

3. THE POSITION OF THE ASSESSOR:

The judge sat with an Assessor who assisted by questioning the witnesses. At the end of the hearing the Assessor went into the witness box and gave expert evidence and was cross-examined. Criticism was made both of the fact that an Assessor was used and of the fact that he was called to give evidence. The judge held that, although there was no statutory provision for Assessors to be used, they had been used in coroner's courts for over 100 years and this was now part of accepted practice. Thus the judge held that the coroner was justified in sitting with an Assessor and could not be properly criticised for having done so.

The judge, however, concluded that in his opinion the role of the Assessor should not have extended to his giving evidence. He said:

"However in my opinion the role of an assessor should not extend to his giving expert evidence. There is a danger that it might appear (whether justifiably or not) that the evidence of such a witness might attract the special confidence of the coroner, and might carry greater weight than would otherwise be the case. It is better that the roles of the assessor and expert witness should be kept separate. However well-intentioned, as I accept it was, I feel the coroner fell into error in allowing Dr Zideman to fulfil both these functions."

As he had concluded that the coroner had made an error, the judge had to exercise his discretion and decide whether to grant the relief that he did. He said:

"That leads me to the question whether, in view of the part played by the Assessor, I ought to grant relief. These matters occurred long ago. Memories of witnesses will have faded. A thorough investigation was carried out. I am not persuaded that the fact of the Assessor having given evidence will have made any material difference to the outcome."

It was submitted before us that the judge came to the right conclusion as to the role of the Assessor, but failed to exercise his discretion appropriately. It was submitted that the Assessor was the only person who gave evidence as to the cause of death being the deceased's tongue blocking his airway. That was accepted by the coroner and as it was crucial evidence the proceedings should be quashed and a fresh inquest ordered.

I do not believe that that part of the evidence could in any way have affected the outcome of the inquest. The judge was entitled to reach his decision, and at the time we are considering this matter (in 1996) the reasons which he gave for refusing a new inquest are particularly pertinent. I do not believe that his conclusion on discretion is open to attack and I can see no reason as to why this court should interfere with it.

I can see no prospect of this appeal succeeding. I agree with the conclusion reached by the single Lord Justice in this case who considered it on paper and refused leave to appeal on 19 July 1996. I, therefore, would dismiss this application.

LORD JUSTICE BROOKE:

I can well understand the disappointment of the family of this young man that the coroner did not summon a jury to enquire into the circumstances of the tragedy which struck them on that day in November 1992. Many reasonable coroners might well have done so in these circumstances. This coroner said in his evidence to the High Court that it is always very difficult to draw a line between a case involving a one off incident which did not call for a jury and one in which the system was at fault in a way which, if unchecked, might result in either injury or death, and that he had formed the view that this was an isolated death in which section 8(3)(d) did not engage.

Like my Lord, I do not consider that it is properly arguable that the judge was wrong to hold that if this coroner asserted, as he did, that it appeared to him that the conditions set out in section 8(3)(d) of the Act were not fulfilled, this was a view which no coroner could reasonably have held. I agree with my Lord, for the reasons he has given, that this application should be dismissed.

Order: Leave to appeal refused.

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