HER MAJESTY'S SOLICITOR-GENERAL FOR NEW ZEALAND V THE CORONER OF BALCLUTHA HC DUN CIV 2005-412-000749

HER MAJESTY'S SOLICITOR-GENERAL FOR NEW ZEALAND V THE CORONER OF BALCLUTHA HC DUN CIV 2005-412-000749 21 March 2006IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY CIV 2005-412-000749UNDER the Coroners Act 1988 IN THE MATTER OF an application under Section 40 of the Coroners Act 1988 for an order that another inquest be held into the death of HUGH GORDON MUCKLE of Rakaia, Truck Driver BETWEEN HER MAJESTY'S SOLICITOR- GENERAL FOR NEW ZEALAND Applicant AND THE CORONER OF BALCLUTHA Respondent Hearing: 15 March 2006 Appearances: T J Warburton for Solicitor-General G M Lynch - Amicus Curiae Judgment: 21 March 2006JUDGMENT OF FOGARTY J[1] On 31 July 2002 the Coroner at Balclutha found that Hugh Gordon Muckle died on 22 April 2002 at Clyde Street, Balclutha, the cause of death being consistent with the effects of a cardiac arrhythmia complicating a dilated cardiomyopathy and moderate coronary artery disease. [2] The body of the deceased was recovered from the cab of a large truck and trailer unit embedded in a house. Two eye witnesses gave evidence that as it rounded a right hand kerb on Rosebank Hill the truck drifted up on to the left hand side of the footpath before hitting a bank and veered across the road on to a grassy section and then drove into two houses. One witness did not see the brake lightsengage on the truck at any time. A second eye witness gave evidence that he was standing in the kitchen of 202 Clyde Street, Balclutha, when he heard a large bang and saw the outside verandah disintegrate as the truck passed through it. The truck continued through a back fence and into the next door house. The house disintegrated. The witness estimated the truck was travelling at 50 to 60 kilometres per hour as it went past the kitchen. The witness saw the driver slumped forward over the steering wheel. According to the witness it looked as though the driver was unconscious before the truck hit the second house. Mr Scholten went immediately to see if he could assist the driver but it was too late. [3] The police report for the Coroner noted that Mr Muckle was found with: a large amount of injury to the chest area with miscellaneous amounts of wood and debris protruding from the body cavity. On removing the body from the vehicle it was found that in fact this material had penetrated the chest cavity and protruded through his back also.[4] Dr Dempster, the pathologist, conducted a post mortem examination. He concluded: I am of the opinion that death was CONSISTENT WITH THE EFFECTS OF A CARDIAC ARRHYTHMIA COMPLICATING A DILATED CARDIOMYOPATHY AND MODERATE CORONARY ARTERY DISEASE. It cannot be determined with certainty if the deceased died at the wheel of his truck or was rendered unconscious by a cardiac arrhythmia and died following impact. In addition the deceased suffered severe non-survivable injuries including burst lacerations of the liver and lower lobe of the right lung with avulsion of part of the right lung.[5] It may be noted that the Coroner found the cause of death from the opinion (in bold type) of the pathologist in the first sentence of his conclusion. That was on 31 July. The Coroner had earlier ordered a disposal of the body on 24 April when he had recorded the cause of death in the same way but he also said at that time:In addition there were other multiple severe injuries of the right lung, heart and liver which could have also been fatal.[6] There was a death by accident policy on the deceased with Lumley General Insurance. As a result of the formal and final finding of the Coroner on 31 July it is not possible for the beneficiaries of that policy to make a claim based on death by accident, as the insurer would not accept such a claim.[7] Two months before the inquest on 17 May Lumley General Insurance notified the police that they were the insurers of Mr Muckle and requested a copy of the police accident report. There was no evidence on the police file that Lumley General Insurance were notified of the date and time of the inquest. [8] On 13 October 2004 the solicitors for Mrs Muckle wrote to the Solicitor- General requesting a second inquest into the death of Mr Muckle. Having examined the matter the Solicitor-General acceded to that request and has applied to the High Court that another inquest be held. Section 40 of the Coroners Act 1988 provides:40 High Court may order inquest in certain cases(1) The Solicitor-General may apply to the High Court for an order for an inquest to be held into any death. (2) If satisfied, on application under this section, that— (a) An inquest into a death is necessary or desirable; and (b) The coroner by whom the inquest should be held has failed or refused to hold one;— the High Court may order one to be held; and in that case an inquest shall be held. (3) If satisfied, on application under this section, that— (a) One or more inquests have been held into a death; but (b) Another should be held— (i) By reason of fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts; or (ii) For any other sufficient reason,— the High Court may order another to be held; and in that case another shall be held. (4) An order under this section shall specify— (a) The coroner who is to hold the inquest, or (b) That it is to be held by a coroner (being a coroner who has not previously held an inquest into the death concerned) authorised by the Secretary;— and, subject to section 36 of this Act, the inquest shall be held accordingly.(5) Subsections (2) and (3) of this section are subject to section 16 of this Act.[9] The Solicitor-General relies on subs (3) and pleads that another inquest should be held into the death of the deceased because:1. The police failed to notify the insurer of the time and date of inquest, as required by s 23(2) of the Coroners Act 1988; and 2. The Coroner's conclusion was incomplete, the Coroner failed to identify the possible real causes of death, as required under s 15(1)(a)(iv) of the Act.[10] The widow, Mrs Muckle, and the New Zealand Police abide the decision of the Court. Mr Gerard Lynch was appointed an amicus. [11] Having looked at the matter independently Mr Lynch submitted that it is not possible to determine from the final finding whether the Coroner simply overlooked the second part of Dr Dempster's evidence or whether the Coroner in fact rejected that part of Dr Dempster's evidence. [12] Mr Lynch is referring to the balance of Dr Dempster's findings:It cannot be determined with certainty if the deceased died at the wheel of his truck or was rendered unconscious by a cardiac arrhythmia and died following impact. In addition the deceased suffered severe non-survivable injuries including burst lacerations of the liver and lower lobe of the right lung with avulsion of part of the right lung.[13] The insurer has interpreted the finding of the Coroner to be that Mr Muckle in all probability died of a heart attack at the wheel of the truck, that is, before the impact. Accordingly, the insurer concluded that Mr Muckle's death was outside the terms of accidental death benefit in the policy. The policy is triggered only if his death was caused by a "personal accident". The Insurance and Savings Ombudsman has supported the position taken by the insurer.[14] Section 15(1) of the Coroners Act provides:15 Purpose of inquests(1) A coroner holds an inquest for the purpose of— (a) Establishing, so far as is possible,— (i) That a person has died; and (ii) The person's identity; and (iii) When and where the person died; and (iv) The causes of the death; and (v) The circumstances of the death; and (b) Making any recommendations or comments on the avoidance of circumstances similar to those in which the death occurred, or on the manner in which any persons should act in such circumstances, that, in the opinion of the coroner, may if drawn to public attention reduce the chances of the occurrence of other deaths in such circumstances.It may be noted that subs (iv) refers to The causes of the death, ie plural. [15] There is a well established distinction between the real cause of death, as distinct from the mode of dying. In Ex Parte Minister of Justice; Re Malcolm; Re Inglis and Coroners Act 1960-1963 [1965] NSWR 1598 at page 1604 McClemens J held: where the Coroners Act speaks of the cause of death it means the real cause of death; namely, the disease, injury or complication, not the mode of dying as e.g. heart failure, asphyxia, asthenia, etc.That dictum applies equally to s 15 of the Coroners Act in New Zealand. [16] I am satisfied that there is a very real doubt as to whether the Coroner came to grips with the challenge of establishing, so far as is possible, the real causes of death of Mr Muckle. [17] Before the High Court can order a second inquest the Court needs to be satisfied that a further inquest is necessary or desirable. This application for the further inquest, although it has the support of the Solicitor-General is pursuing essentially the private interests of the widow. That does not mean that it is not in thepublic interest that there be an inquest. Inquests are held in the public interest, because it is always in the public interest for unexpected death to be explained. That broader public interest usually also coincides with the private interests of the deceased's family and employers and insurers etc. [18] I am satisfied the Coroner has not addressed the whole of Dr Dempster's conclusion. [19] Had the Coroner addressed all of the conclusion of Dr Dempster there were obviously a number of possible real causes of death to be examined, some of which may be inconsistent with others. Dr Dempster was not called as a witness before the Coroner. [20] I am satisfied that this is a case where there should be a second inquest. [21] Quite properly the Coroner of Balclutha has advised the Court, through the Solicitor-General that he does not think it appropriate that he sit on the further inquest. [22] Accordingly, there will be another inquest held into the death of the deceased. It is to be held by a Coroner (being a Coroner who has not previously held an inquest into the death concerned) authorised by the Secretary, s 40(4)(b). [23] Nothing in this judgment should be read by the Coroner as this Court expressing any view as to the decision that the Coroner will or should come to. Fogarty JSolicitors: Crown Law Office, Wellington, for Applicant Gerard Lynch, Christchurch, Amicus Curiae