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The charge against the respondent was for having in his possession 65 obscene DVDs on 22.4.2006, thereby committing an offence under s.5(1)(a) of the Film Censorship Act 2002 and punishable under s.5(2) of the same Act. This is an appeal against the decision of the learned magistrate made on 2 December 2008 wherein the respondent was acquitted and discharged without calling for his defence: Pendakwa Raya v Kok Seong Yoon (Malaysia)
[2009] MLJU 0935
Malayan Unreported Judgments
Pendakwa Raya v Kok Seong Yoon
2009 MLJU 0935
RAYUAN JENAYAH NO MT(5) 41-66-2008
HIGH COURT (JOHOR BAHRU)
DECIDED-DATE-1: 4 AUGUST 2009
HUE SIEW KHENG, JC
Mohd Fazaly Ali bin Mohd Ghazaly (TPR, Pejabat Penasihat Undang-Undang Negeri Johor) bagip pihak perayu
Azmi Ahmad Bakri (Azmi Asram Shujaa & Co) bagi pihak responden
Hue Siew Kheng, JC:
Background
[1] This is an appeal against the decision of the learned magistrate made on 2 December 2008 wherein the respondent was acquitted and discharged without calling for his defence.
[2] The charge against the respondent was for having in his possession 65 obscene DVDs on 22.4.2006, thereby committing an offence under s.5(1)(a) of the Film Censorship Act 2002 and punishable under s.5(2) of the same Act.
[3] The petition of appeal discloses 7 grounds but can be broadly categorized under 2 main grounds: that the learned magistrate had erred in law and in fact in holding that the prosecution had not proved possession and also the adverse inference pursuant to s.114(g) of the Evidence Act 1950 should not have been invoked due to the failure to call 2 other persons who were also arrested together with the respondent on the night of the raid.
Brief facts
[4] On 21.4.2006 at about a quarter to midnight, SP1 one ASP Nik Mathelan bin Nik Mohamed led a raid on the premises of Sky Video Trading at No. 6, Danga Bay, Lot 20704, Batu 4 ½ Jalan Skudai, Johor Bahru. It was a crime prevention operation, targeted at pornography and prostitution.
[5] During the raid, 3 persons were arrested, including the respondent. The other 2 persons arrested were subsequently released as the police were of the view that they were customers at the said premises.
[6] A search of the premises revealed 65 pornographic DVDs which were found beneath the counter rack. The raiding party also found 120 DVDs and 19 VCDs without the “Sijil B”, an offence under s. 18(4) of the Film Censorship Act 2002 for which the respondent was also charged.
[7] The respondent had pleaded guilty to the offence pursuant to the s. 18(4) charge and fined accordingly. However, in respect of the charge under s.5(1) for being found in possession of the 65 DVDs alleged to be obscene, the respondent claimed trial. After full trial was conducted, the learned magistrate had acquitted and discharged him without calling for his defence.
The charge
[8] The charge preferred against the respondent under s.5(1) of the 2002 Act requires proof of 2 main ingredients i.e. that-
(i) the respondent at the material time was in possession of the 65 obscene
films in the form of DVD; and
(ii) that the 65 films (DVDs) are obscene.
[9] Having read the appeal record and the Written Submission of the appellant and having heard both parties, I am in agreement with the learned deputy public prosecutor that the element of possession has been proved through the prosecution witnesses SP1, 2 and 3 who were members of the raiding party.
[10] The 65 DVDs alleged to be obscene were found under the counter of the premises and at the material time of the raid, the respondent was alone in the premises manning the counter. He attempted to flee when SP1 identified himself as a police officer.
[11] The facts of this case are similar to Mohd. Ibrahim v PP [1963] MLJ 289 wherein the appellant was found to be in possession of 65 copies of the book “Tropic of Cancer”. The impugned books were found under the counter of his shop. The appellant in Mohd. Ibrahim (supra) was employed to manage the sale of books and though an attempt was made to absolve himself of knowledge as he could not read English, nevertheless the court held that the inference was irresistible that the 65 copies found in the shop for the purpose of being sold and that the appellant was the person in charge of selling of the books on the shop was in possession of them and in possession of them for purposes of sale. He also failed in his argument that knowledge was negated by his ignorance of the English language as the court held that he could have obtained the services of an English – speaking clerk in ordering the books.
[12] In this case, there was the uncontroverted evidence of SP1 and SP3 that the 65 DVDs were found under the counter and the respondent was found at the time of raid, behind this counter. Knowledge can also be inferred from the fact that he attempted flight when SP1 identified himself as a public officer. Therefore, viewed in its totality the prosecution had proved the element of possession.
[13] There is no cause for the adverse inference to be invoked as it is trite that the calling of witnesses is at the discretion of the prosecution and the burden is on the prosecution throughout to prove its case. I find no gap here, neither can it be said that there was any suppression of evidence.
[14] Therefore the learned magistrate had erred in holding that the element of possession was not proved and in invoking the adverse presumption.
Screen testing for obscenity
[15] However, I find that the second vital ingredient in this case, i.e. that the 65 DVDs are obscene was not proved.
15.1 There is no evidence at all that the 65 DVDs were subject to a screen
test (uji tayang) for the court to make a finding that the 65 DVDs are
obscene.
15.2 SP1 merely testified that he was satisfied that the 65 DVDs were
obscene by looking at the covers of the DVDs.
15.3 SP4, the I.O. of the case, said he had screen tested them at random in
his office and found them to be obscene.
15.4 Although at one point of the proceedings the learned APP applied to
reserve screen-testing of the DVDs, the learned defence counsel had
responded that there was no need for screen-testing (pg. 29 of Appeal
Record). Unfortunately the court appeared to have agreed with learned
defence counsel because nowhere in the Notes of Evidence does it appear
that screen testing was done.
[16] In the case of PP v Chung Wan Li [2005] 8 CLJ 501 , the learned High Court Judge held that “the screening of each and everyone of the 18 VCD’s is necessary to determine whether they were obscene films”. In Chung’s case (supra), the learned High Court Judge did not approve of the random testing that was conducted during the trial.
[17] His Lordship Mohd. Zawawi Salleh, J.C., concurred with the learned High Court judge in the case of PP v Lee Swee Sing [2009] 1 CLJ 320 . His Lordship held in Lee Swee Sing’s case that there is no provision in the Film Censorship Act 2002 which allows for random testing. A comparison was drawn with the provision of s.37(j) of the Dangerous Drugs Act 1952 which allowed for a 10% of the sample of the drugs to be tested.
[18] In this case, there was no screen testing at all carried out during the trial. How then can the court arrive at a finding that the 65 DVDs are obscene? It is patently clear that the prosecution had failed to prove that the 65 DVDs were obscene and the learned magistrate should have so found.
For the reasons as adumbrated above the acquittal and discharge of the respondent is hereby affirmed as the prosecution had failed to prove a prima facie case against the respondent as per the charge.
The appeal is accordingly dismissed.
LOAD-DATE: 01/12/2010
Evidence – Expert evidence – Credibility – Whether experienced chemist without formal training regarded competent or expert – Analysis of dangerous drugs – Whether amount used for analysis grossly inadequate: Public Prosecutor v Chong Vui Hyen (Malaysia)
The Malayan Law Journal
PDF Print Format
Public Prosecutor v Chong Vui Hyen
[2009] 8 MLJ 164
CRIMINAL TRIAL NO 45–08 OF 2005
HIGH COURT (TEMERLOH)
DECIDED-DATE-1: 24 MARCH 2009
AKHTAR TAHIR JC
CATCHWORDS:
Criminal Law – Dangerous drugs – Trafficking in heroin and monoacetylmorphine – Storage of drug exhibits – Proof – Incomplete entries – Failure to furnish sufficient details as to movement in and out of store – Whether sufficient evidence tendered on storage of drugs
Criminal Law – Dangerous Drugs Act 1952 – s 39B(1)(a) – Presumption of trafficking – Car raided almost immediately on arrival at parking lot – Whether premature raid – Whether sufficient to raise presumption of trafficking
Evidence – Expert evidence – Credibility – Whether experienced chemist without formal training regarded competent or expert – Analysis of dangerous drugs – Whether amount used for analysis grossly inadequate
HEADNOTES:
Upon receiving an information with regard to a car with the registration No WER 5240, SP6 led a group of police men to the toll plaza at Lanchang. After waiting for 45 minutes, SP6 and his men spotted the said car arriving at the toll plaza and immediately approached the car. After identifying himself to the driver of the car, SP6 seized a packet which the accused was holding in his right hand. On opening the said packet, SP6 found white powdery substance believed to be drugs. The accused and the drugs were later handed to SP7, the investigating officer (‘IO’) of the case. The IO photographed the drugs and handed the drugs to the store for safe keeping and subsequently to the chemist at the Chemist Department. SP2, the chemist, who analysed the drugs confirmed the drugs were heroin and monoacetylmorphine with a weight of 10.33g and 7.05g, respectively. After the drugs were analysed they were placed in a sealed envelope. The IO collected the envelope together with the chemist report and kept them at the store until produced at the court. The defence raised the following issues: (a) that there was break in the chain of evidence as to the safe keeping of the drugs; (b) that a mere possession did not attract the presumption of trafficking; and (c) the competence of the chemist and the insufficiency in the amount of drug analysed.
Held, acquitting and discharging the accused of the charge:
(1) Although there appeared to be weaknesses in the keeping of the record
at the police store it did not in any way affect the identity of the
drugs as the markings made by both SP6 and SP7 were still discernable
from the packet tendered in the court. The court was satisfied from the
totality of the evidence and that the markings on the exhibits revealed
that the drugs were the same as that found from the accused (see paras
12 & 15).
(2) There should be an indication that the accused had the intention to
part with the packet of drugs to someone else. Merely holding the drugs
does not convey the intention, more so when there are no people around
for the drugs to be handed over (see para 21).
(3) The fact that the police raided the car in question almost immediately
as it arrived at the parking lot did not give the police an opportunity
to ascertain the real intention of the accused in parking his car at
the toll plaza. The police should have allowed the accused to move
towards more incriminating circumstances instead of rushing to raid the
vehicle. This was a case of premature raid, insufficient to raise the
presumption of trafficking (see para 22).
(4) The chemist had analysed only 1.3g of the total amount of 222g of
powder which was handed to him. This amount was grossly inadequate as
it represented less than 1% of the powder found. The law does not
formulate the amount of drugs to be analysed apart from s 37(j) of the
Dangerous Drugs Act 1952 which stipulates at least 10% of the amount
should be analysed. Using s 37(j) as the bench mark, the court was of
the opinion that at least 10% of the drugs should be analysed
especially in a case where the difference in quantity of drugs
determines a matter of life or death (see paras 30, 33 & 34).
Apabila mendapat maklumat berkenaan sebuah kereta bernombor pendaftaran WER 5240, SP6 mengetuai sepasukan polis ke plaza tol Lancang. Setelah menunggu selama 45 minit, SP6 dan pasukannya mengecam kereta tersebut yang tiba di plaza tol tersebut dan mendekatinya. Setelah memaklumkan identiti dirinya kepada pemandu kereta tersebut, SP6 kemudiannya merampas satu bungkusan yang berada dalam tangan kanan tertuduh. Apabila membuka bungkusan tersebut, SP6 mendapati serbuk putih yang dipercayai dadah. Tertuduh dan dadah tersebut diserahkan kepada SP7, pegawai penyiasat (IO) kes tersebut. IO mengambil gambar dadah tersebut dan menyerahkannya ke stor untuk disimpan dan kemudiannya dihantar kepada ahli kimia di Jabatan Kimia. SP2, ahli kimia yang [*166] menganalisis dadah tersebut mengesahkan bahawa dadah tersebut merupakan heroin dan monoacetylmorphine yang masing-masing seberat 10.33g dan 7.05g. Setelah dadah tersebut dianalisis, dadah tersebut dimasukkan ke dalam sampul yang diperekatkan. IO mengambil sampul tersebut bersama-sama dengan laporan kimia dan menyimpannya di stor sehingga dibawa ke mahkamah. Pihak pembelaan membangkitkan isu-isu berikut: (a) rantaian keterangan putus dalam hal penyimpanan dadah tersebut; (b) bahawa milikan semata-mata tidak memberi anggapan pengedaran dadah; dan (c) kecekapan ahli kimia dan juga kekurangan berat dadah yang dianalisis.
Diputuskan, melepaskan dan membebaskan tertuduh terhadap pertuduhan:
(1) Walaupun ada menunjukkan bahawa wujudnya kelemahan dalam menyimpan
rekod di stor polis, kelemahan itu tidak menggugat pengenalpastian
dadah tersebut kerana tanda-tanda yang dibuat oleh SP6 dan SP7 masih
boleh dibaca daripada bungkusan yang dikemukakan di mahkamah. Mahkamah
berpuas hati dengan keseluruhan keterangan tersebut dan juga
tanda-tanda pada ekshibit-ekshibit menunjukkan bahawa dadah tersebut
merupakan dadah yang sama dijumpai daripada tertuduh (lihat perenggan
12 & 15).
(2) Seharusnya ada petanda bahawa tertuduh mempunyai niat memberikan dadah
tersebut kepada orang lain. Semata-mata memegang dadah tersebut tidak
menunjukkan niat, lebih-lebih lagi ketika itu tiada sesiapa pun dadah
itu boleh diberikan (lihat perenggan 21).
(3) Fakta bahawa pihak polis menyerbu kereta tersebut dengan serta-merta
ketika kereta tersebut sampai di tempat letak kereta tidak memberi
peluang kepada polis untuk mengenal pasti niat tertuduh apabila dia
meletak kereta di plaza tol tersebut. Pihak polis seharusnya membiarkan
tertuduh bertindak dalam keadaan yang menunjukkan dia bersalah daripada
terus menyerbu kenderaan tersebut. Kes ini merupakan kes serbuan
terlalu awal, tidak mencukupi untuk membangkitkan anggapan mengedar
(lihat perenggan 22).
(4) Ahli kimia hanya menganalisis sejumlah 1.3g daripada keseluruhan 222g
serbuk yang diberikan kepadanya. Jumlah ini tidak mencukupi kerana
hanya mewakili 1% daripada serbuk yang ditemui. Undang-undang tidak
merumuskan jumlah dadah yang perlu dianalisis selain daripada s 37(j)
Akta Dadah Berbahaya 1952 yang menetapkan sekurang-kurangnya 10%
daripada jumlah yang ditemui harus dianalisis. Mengguna pakai s 37(j)
sebagai tanda aras, mahkamah berpendapat bahawa sekurang-kurangnya 10%
daripada jumlah dadah [*167] yang dijumpai harus dianalisis
terutamanya dalam kes yang mana perbezaan jumlah dadah menentukan hidup
atau mati seseorang (lihat perenggan 30, 33 & 34).
Notes
For a case on credibility, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) para 1437.
For cases on s 39B(1)(a) of the Dangerous Drugs Act 1952, see 4 Mallal’s Digest (4th Ed, 2005 Reissue) paras 320–446.
For cases on trafficking in heroin and monoacetylmorphine, see 4 Mallal’s Digest (4th Ed, 2005 Reissue) paras 138–139.
Cases referred to
PP v Lin Lian Chen [1991] 1 MLJ 316, HC
PP v Nik Ahmad Aman bin Nik Mansor [2002] 5 MLJ 641, HC
PP v Samundee Devan a/l Muthu Krishnan [2006] 4 MLJ 777; [2006] 3 CLJ 161, HC
Legislation referred to
Dangerous Drugs Act 1952 ss 37(j), 39B(1)(a), (2)
Mohd Najmi bin Daud (Deputy Public Prosecutor, Attorney General’s Chambers) for the prosecution.
Richard Bong (Bong & Co) for the accused.
Akhtar Tahir JC::
THE CHARGE
[1] The charge against the accused is as follows:
Bahawa kamu pada 24 Februari 2005 jam lebih kurang 5.45 petang
bertempat di tempat letak kereta berhadapan pejabat bangunan tol
Lanchang, di dalam daerah Temerloh, di dalam negeri Pahang Darul Makmur
telah didapati mengedar dadah berbahaya iaitu sejumlah berat 17.38 gram
(10.33 gram heroin dan 7.05 gram monoacetylmorphines) dan dengan itu
kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a)Akta
Dadah Berbahaya, 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta
yang sama.
THE PROSECUTION’S CASE
[2] The prosecution called a total of nine witnesses to prove its case against the accused.
[3] The sum total of the prosecution’s evidence was that SP6 ASP Azhar bin [*168] Ahmad upon receiving information with regards to a car with the registration No WER 5240 led a group of police men to the toll plaza at Lanchang. After waiting for 45 minutes SP6 and his men spotted the said car arriving at the toll plaza. Upon seeing the car SP6 and his men immediately approached the car.
[4] SP6 identified himself to the driver of the car identified in the court as the accused. SP6 saw the accused holding a packet in his right hand. SP6 seized this packet and on opening the packet found white powdery substance believed to be drugs.
[5] The accused and the suspected drugs were taken to the police station whereby SP6 lodged an arrest report as well as marked the exhibit.
[6] The accused and the drugs were later handed to the investigating officer (‘IO’) of the case SP7 Chief Inspector Nik Amin Shah Nik Ahmad. The IO photographed the drugs and handed the drugs to the store for safe keeping. The drugs were then sent by the IO to the chemist at the chemist department.
[7] The chemist Khairol Hadi bin Hj Abdul Raof (SP2) who analysed the drugs confirmed the drugs were heroin and monoacetylmorphine with a weight of 10.33g and 7.05g respectively. After drugs were analysed they were placed in a sealed envelope. The IO later collected the envelope together with the chemist report. The drugs were kept at the store until production in court at the trial.
[8] The defence did not seriously challenge the fact that the drug was in the possession of the accused at the material time. The court also found the evidence to be sufficient to prove that at the material time the drugs were under the possession of the accused.
[9] However the defence raised three issues which I considered important to address to come to a determination of this case.
IDENTITY OF THE DRUGS
[10] The first issue raised was the identity of the drugs which the defence alleged was in doubt as there was break in the chain of evidence as to the safe keeping of the drugs. According to the testimony of the IO the drugs were kept at the store in the police station. Every item kept in the store was registered in a record book which kept entries of items kept by noting amongst others the brief description of the item kept.
[11] It was the defence contention that there was no mention in the book of an entry of an envelope marked C contrary to the evidence of the IO that he had kept the packet of drug in an envelope marked C. Further it was the contention of the defence that the entries were not complete and did not give enough details as to the movement in and out of the store for example the case number as well as the particulars of the court.
[12] In my opinion although there appeared to be weaknesses in the keeping of the record at the police store it did not any way affect the identity of the drugs as the markings made by both SP6 and SP7 were still discernable from the packet tendered in the court.
[13] The defence also further contended that the entries in the records were tampered with as when a page of the record was earlier tendered and marked as ID 10 it had different entries on the same page later tendered as P14.
[14] The storekeeper SP3 L/Kpl Ghazali bin Mohd Noh admitted having altered the entries as to date and case number.
[15] I concluded there appeared to be and in fact it was confirmed by the storekeeper himself that there was alteration nevertheless in my opinion this alteration had no significant effect on the identity of the drugs tendered. I was satisfied from the totality of evidence and the markings on the exhibits that the drugs were the same as that found from the accused.
PRESUMPTION OF TRAFFICKING
[16] The second issue raised by the defence was that a mere possession did not attract the presumption of trafficking. The defence relied on the case of Public Prosecutor v Nik Ahmad Aman bin Nik Mansor [2002] 5 MLJ 641 at p 650 where Kang Hwee Gee J said this:
But even assuming that the prosecution has successfully made out a case
of possession, trafficking in the context of the instant case cannot be
proved by mere passive possession alone.
A cursory reading of the definition of ‘trafficking’ in s 2 of the Act
tends to convey the impression that trafficking may be proved only by
adducing evidence that the accused had done any of the acts mentioned
in the section, that is to say, manufacturing, importing, exporting,
keeping, concealing, buying, selling, giving, receiving, storing,
administering, transporting, carrying, sending, delivering, procuring,
supplying or distributing the drug. But as Augustine Paul J said in
Public Prosecutor v Hairul Din bin Zainal Abidin [2001] 6 MLJ
146, the definition of ‘trafficking’ contemplates acts that go beyond
mere or passive possession of dangerous drugs.
As indicated in the judgment, that proposition was first mooted in the
judgment of the Privy Council on appeal from the Court of Appeal
Singapore in Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64,
wherein the judicial committee had to decide on the meaning of ‘
trafficking’ under the Misuse of Drugs Act 1973 of Singapore. It was
even more emphatically defined under section 2 to mean ‘sell, give,
administer, transport, send, deliver or distribute’.
Speaking for the judicial committee, this was what Lord Diplock said:
To ‘traffic’ a controlled drug so as to constitute the offence of
trafficking under s 3 involves something more than passive
possession or self-administration of the drug; it involves doing
or offering to do an overt act of one or other of the kinds
specified in para (a) of the definition of ‘traffic’ and ‘
trafficking’ in s 2. Even apart from any statutory definition,
the ordinary meaning of the verb ‘to traffic’, in the particular
context of trafficking in goods of any kind, imports the
existence, either in fact or in contemplation, of at least two
parties: a supplier and a person to whom the goods are to be
supplied. This concept, involving transfer of possession, is
reflected in the statutory definition itself. Of the seven verbs
used to describe the various kinds of overt acts which constitute
trafficking, ‘transport’ is sandwiched between ‘sell, give,
administer’ which precedes it and ‘send, deliver or distribute’
which follows it.
All of these other verbs refer to various ways in which a
supplier or distributor, who has drugs in his possession, may
transfer possession of them to some other person. ‘Transport’,
although it must involve possession of the drugs by the person
who transports them, is the only member of the heptad of verbs
that is not inconsistent with the retention of possession of the
drugs by him after their transport. It must mean moving the drugs
from one place to another; it may mean moving them also to
another person, but it need not do so. Whether it bears the wider
or the narrower meaning depends upon the context in which the
verb appears. In Their Lordship’s view, the immediate context of
the verb ‘transport’, to which attention has been drawn, attracts
the maxim noscitur a sociis. This, and the fact that it
appears in the definition of the verb to ‘traffic’, of which the
natural meaning in the context of trafficking in goods involves
dealings between two parties at least, and that the evident
purpose of the Act is to distinguish between dealers in drugs and
the unfortunate addicts who are their victims, all combine to
make it clear that ‘transport’ is not used in the sense of mere
conveying or carrying or moving from one place to another, but in
the sense of doing so to promote the distribution of the drug to
another. Supplying or distributing addictive drugs to others is
the evil against which s 3 with its draconian penalties is
directed.
[17] At p 652 the learned judge said as follows:
I am persuaded by the reasoning in Ong Ah Chuan that to prove that
the accused was trafficking in the context of the instant case, it
would still be necessary to prove that he transferred, or at least
intended to transfer, possession (or at least custody and control) of
the drug to another party. Had it been the intention of the legislature
to make the mere acts of transporting, carrying, sending, delivering,
[*171] procuring, supplying or distributing the drug an offence
punishable by death, it would have said so directly in clear language
avoiding altogether the word ‘trafficking’.
I am therefore bound to find that the mere act of transporting,
carrying, sending, delivering, procuring, supplying or distributing by
the accused in the instant case, (acts which he could conceivably be
perceived to do as the driver of the car under the circumstances) would
not be enough to constitute an act of trafficking in the absence of any
evidence that the drug was to be transferred or conveyed to another
party. The fact that the Ford Lynx had been observed to have parked for
that very brief moment behind the Honda Accord without more, is in my
view insufficient to convey any such intention on the part of the
accused.
[18] In this case whether there was mere possession or a further intention to ‘traffic’ by the accused depended on the evidence of SP6 and SP9 a member of the raiding party as both were present at the place of the incident.
[19] The defence contended there was a contradiction of evidence between SP6 and SP9 of the presence of people and other vehicles at the place where the accused was detained. The officer who led the raid SP6 said that there were no other people apart from the accused and the police team or any other vehicle apart from the police car the accused car and a Pajero, whereas SP9 said there were other people and cars in that area.
[20] Under normal circumstances the presence of other people at the scene might not be significant but it becomes important to determine the intention of the accused especially on the question whether presumption of trafficking arises.
[21] On this issue I agree with the decision of Kang Hwee Gee J that there should be an indication that the accused had the intention to part with the packet of drugs to someone else. Mere holding the drugs in the hand does not convey the intention more so when there are no people around for the drug to be handed over.
[22] In this case even if there were other people around, the fact that the police raided the car in question almost immediately as it arrived at the parking lot did not give the police an opportunity to ascertain the real intention of the accused in parking his car at the toll plaza. The police should have allowed the accused to more incriminating circumstances instead of rushing to raid the vehicle. To me this was a case of premature raid insufficient to raise the presumption of trafficking.
THE CHEMIST EVIDENCE
[23] However to me it is the third issue raised by the defence which sealed [*172] the fate of the case. The third issue raised was the evidence of the chemist. The defence raised two weaknesses in the testimony of the chemist. The first was the competence of the chemist and second was in the insufficiency in the amount of drug analysed.
[24] On the competence of the chemist Mohtar Abdullah J in the case of Public Prosecutor v Lin Lian Chen [1991] 1 MLJ 316 at p 317 said this:
In other words the prosecution should first establish the expertise of
the witness. The opinion which he is asked to give must relate to a
matter concerning which his special knowledge will assist the court.
The expert may not give an opinion on matters outside the field of his
expertise.
Although the court takes judicial notice of the common fact that a
government chemist is called upon to examine and analyse exhibits sent
to the chemistry department by the police and other law enforcement
agencies, it cannot by the mere fact that the witness is a government
chemist of some standing, hold that the witness in question is an
expert in the particular field of expertise in the case before it. A
Bachelor of Science (Honours) degree majoring in chemistry, does not
necessarily imply that the witness concerned has an expert knowledge of
heroin — nor does 13 years experience in the chemistry department
similarly clothe the witness with the expertise in the analysis of
heroin!
[25] It was the testimony of the chemist in this case that he had no formal training on analysing of drugs and what ever he had learnt was from the on job training. He further testified that he had been analysing drugs from the year 1994.
[26] In my opinion there is no necessity for a chemist to have formal training to be regarded as competent or as an expert. To me on the job training is equally important in imbibing the necessary knowledge and skill. However for a judge to conclude on the competence of a witness all the necessary facts must be made available to the court.
[27] In this case there was just a bare statement from the chemist that he had been analysing drugs since 1994. No further details were elicited from the witness for instance to the number of cases of drugs analysed by the witness since 1994. The witness might have been analysing drugs for a number of years but if he has analysed only a very small number of cases he could not be regarded as having the necessary skills and knowledge.
[28] The chemist also testified that he had given evidence in court on a number of occasion but again he did not say the nature of cases he had given evidence for. From his testimony it seems to suggest that he had only attended courses in relation to rape, murder and firearms cases and there is a possibility that he had only testified for such cases.
[29] From the facts it was unsafe for me to conclude that the witness possessed the necessary skills and knowledge to be regarded as an expert or at least a competent chemist for analysis of drugs.
[30] The amount of drugs analysed by the chemist enhanced my belief that the chemist was incompetent. The chemist had testified that he had analysed only 1.3g of the total amount of 222g of powder which was handed to him. In cross-examination he maintained that this was a sufficient amount for analysis.
[31] The court cannot just accept the expert’s testimony when he says the amount is sufficient without further explanation. In this case the prosecution did not deem it necessary to ask further during re-examination the reasons for the chemist saying the amount was sufficient. It is for the court to determine the accuracy and sufficiency of the test conducted by the chemist.
[32] On this point I would like to quote from the case of Public Prosecutor v Samundee Devan Muthu Krishnan [2006] 4 MLJ 777; [2006] 3 CLJ 161 (HC), where at pp 786–787 (MLJ); pp 171–173 (CLJ) Hishamuddin Yunus J said as follows:
The learned Deputy Public Prosecutor, Encik Azhar Iruan bin Mohd
Ariffin, however, argued that the court was bound by the opinion of the
expert, the government chemist, on the question of the adequacy of the
sample. The learned DPP referred to Gunalan a/l Ramachandran &
Ors v Public Prosecutor [2004] 4 MLJ 489; [2004] 4 CLJ 551. In
that case, Abdul Hamid Mohamad JCA (as he then was) delivering the
majority judgment of the Court of Appeal said (at pp 515–516 (MLJ), pp
577–578 (CLJ)):
Clearly, the court did not lay down the rule that 10% of the
total weight of the plant material must be taken as sample for
the purpose of the tests. However, in the circumstances of that
particular case the amount taken was found to be adequate by the
court. So, I do not think that it is correct to say that the case
laid down the principle that at least 10% of the total weight
must be taken as sample for the purpose of carrying out the
tests. Indeed, I do not think that that case laid down any
general principle. The decision was confined to the circumstances
of the case and, as stressed by the court, what would be an
adequate quantity would depend on the particular circumstances of
the case and, as stressed by the court, what would be an adequate
quantity would depend on the particular circumstances of each
case. Even then, the question is: In the absence of a specific
provision of the law, who is to determine what is the adequate
quantity that should be taken as sample (s) for the purpose of
carrying out the tests. The court or the chemist? Who is the
expert? Who carries out the test? The answer must be the chemist.
With the greatest respect, whilst I agree that the Supreme Court in
Leong Boon Huat did not lay down any ‘10% principle’, I am, however,
unable to share the view, as expressed above by Abdul Hamid JCA, that
the Supreme Court in that case did not lay down any general principle
at all. In my opinion the following principles can be abstracted from
the judgment of the Supreme Court:
(1) A chemist analysing a substance to determine whether it contains
any dangerous drug must carry out the analysis based on an
adequate sample.
(2) Whether or not a sample used by the chemist for the purpose of
the analysis is adequate is for the court to determine.
(3) Whether or not the quantity of the sample is adequate has to be
determined from (to quote the Supreme Court) ‘the particular
circumstances of each case’.
(4) Where the court, after having given due consideration to the
particular circumstances of the case, including the adequacy of
the sample taken for analysis, is left in doubt as to whether the
accused has committed an offence in a lower or higher degree of
seriousness, the court should make a finding in the lower degree,
particularly where a finding in a higher degree will give rise to
a mandatory sentence of death.
I do of course accept that a court of law must give due weight to the
evidence of an expert witness such as a chemist especially when the
evidence is not disputed by another expert. Indeed, by the words ‘the
particular circumstances of each case’ the Supreme Court must have
meant that the opinion of the chemist must also, besides other factors,
be seriously considered before a decision is made. But it is trite law
that the chemist (or any expert for that matter) does not have the
final say. It is the judge who makes the final determination. True, the
judge is not an expert in this field. But he is not all that helpless.
He has his general knowledge to rely on. He has his experience in
hearing many drug trafficking cases. He is familiar with all the
various tests normally carried out by the chemist when analysing a
given substance to detect the presence of drugs, and if present to
determine the nature and the weight of the same. He has his common
sense, and his sense of justice and fairness, to guide him. An opinion
of an expert is just an opinion. It is not conclusive. I must stress
here that in the present case I am not rejecting outright the opinion
of the chemist. I respect and accept the opinion of the chemist as to
the nature of the drugs, that is to say, the substance contained heroin
and monoacetylmorphines; but my only reservation is that I had some
doubts as to accuracy of his analysis regarding the quantity of the
drug.
[33] To me the amount analysed in this case was grossly inadequate as it represented less than 1% of the powder found. To compound matters only a small percentage of this 1.3g was found to contain heroin and morphine. The [*175] law does not formulate the amount of drugs to be analysed apart from s 37(j) which stipulates at least 10% of the amount should be analysed.
[34] I am aware that this section has no application to the present case but it can be gleaned from the provision that it was the intention of the law that a sufficient and a minimum quantity of drug be used for analysis. Using this provision as a bench mark I would think that at least 10% of the drugs should be analysed especially in a case where the difference in quantity of drugs determines a matter of life or death.
[35] Further the chemist testified in this case of the amount analysed 4.66% was heroin and 3.18% was monoacetylmorphine. He then said according to his calculation the total weight of the drug was as 10.33g heroin and 7.05g monoacetylmorphines. What his calculations were leading to this amount was not elaborated upon. The court was therefore left with the task of guessing what the calculation was.
FINAL VERDICT
[36] For the reasons stated above it is my finding that the prosecution has failed to prove a prima facie case against the accused and the accused is therefore acquitted and discharged of the charge against him.
ORDER:
Accused acquitted and discharged of the charge.
LOAD-DATE: 07/24/2009
Evidence – Expert evidence – Handwriting expert – Whether gazetted document examiner more qualified to give evidence: Kum Wah Sdn Bhd v RHB Bank Bhd (formerly known as Malayan Banking Corp Bhd) (United Frank Sdn Bhd & Ors, third parties)(Malaysia)
The Malayan Law Journal
PDF Print Format
Kum Wah Sdn Bhd v RHB Bank Bhd (formerly known as Malayan Banking Corp Bhd) (United Frank Sdn Bhd & Ors, third parties)
[2009] 9 MLJ 490
SUIT NO D2–22–2139 OF 2001
HIGH COURT (KUALA LUMPUR)
DECIDED-DATE-1: 6 JULY 2009
NOOR AZIAN J
CATCHWORDS:
Banking – Banker and customer – Duty of banker – Forgery – Debits in applications for cashier’s order – Whether applications made by plaintiff – Whether plaintiff discharged onus in proving signatures on applications were not those of its signatories – Whether defendant bank negligent in its duty to customer – Whether third parties liable to defendant if latter held liable to plaintiff
Evidence – Expert evidence – Handwriting expert – Whether gazetted document examiner more qualified to give evidence
HEADNOTES:
The plaintiff was a family company that was involved as wholesaler, dealer and retailer of wine and liquor. The three directors of the plaintiff company were all brothers. The plaintiff opened its current account in the form of an overdraft facility (‘the plaintiff’s account’) with United Malayan Banking Corporate Bhd, which through a series of mergers became to be known as the RHB Bank Bhd, the defendant. The signatories to the plaintiff’s account were the three directors, although the plaintiff asserted that for the banking facility it only used a rubber stamp bearing the plaintiff company’s name. On 19 June 2001, the plaintiff’s account was debited by RM848,806.45, which was made up as follows: RM6,302.15 in favour of EON Finance; RM374,402.15 in favour of Tan Keng Pan @ Thiam Hock; and RM468,502.15 in favour of United Frank Sdn Bhd. Of these, although the first debit of RM6,302.15 was debited from the plaintiff’s account it was never paid out to EON Finance Bhd. The second sum of RM374,402.15 in favour of Tan Keng Pan @ Thiam Hock was allowed to be banked into their joint account ie Tan Keng Pan and/or Ho Thiam Hock. All the three debits were in the form of applications for cashier’s order. The plaintiff argued that its account with the defendant bank was wrongfully debited by the sum of RM848,806.45. It then filed the present suit against the defendant for breach of mandate and/or negligence resulting in the wrongful debit of RM848,806.45 from its account. By this action the plaintiff sought a [*491] declaration that the debit was unlawful and without authority and that therefore the sum of RM848,806.45 ought to be paid by the defendant to the plaintiff. The defendant in turn filed a third party proceedings against United Frank Sdn Bhd, Tan Keng Pan and Ho Thiam Hock and claimed the sums of RM468,500 from United Frank Sdn Bhd and RM374,000 from the other two parties. The defendant claimed that it was entitled to be compensated by the third parties in respect of any damages and loss that it may have to pay in the event that it was held liable for the wrongful debits from the plaintiff’s account. The defendant submitted that it was entitled to claim for damages against the third parties for payments made under a mistake under s 73 of the Contracts Act 1950 and/or alternatively under the principles of monies had and received. There was no representation by the first third party ie United Frank Sdn Bhd but the court was informed that it was wound up. Tan Keng Pan and Ho Thiam Hock confirmed that they did not have any dealings with the directors of the plaintiff company. Ho Thiam Hock, who was in charge of daily operations of Sri Saran Daya Sdn Bhd, a money changer company, submitted that the payment of RM374,000 was for a bona fide valuable consideration ie in giving foreign currencies to an unknown person. Both the plaintiff and the defendant called their own handwriting experts as expert witnesses to verify whether the signatures that appeared on the three cashier’s order applications were those of the signatories to the plaintiff’s account. The issues to be tried were whether the three cashier’s order applications for the amount claimed were made by the plaintiff and whether the third parties were liable to the defendant in the event the latter was held liable to the plaintiff for the amount debited from the plaintiff’s account.
Held, allowing the plaintiff’s claim with costs:
(1) The three directors of the plaintiff appeared from their demeanour to
be honest witnesses. As such there was no reason to doubt their
evidence that they had not given the defendant bank the mandate to
issue the three cashier’s orders (see para 20).
(2) The expert witness that the plaintiff called upon to give evidence at
the trial was more qualified to give evidence in respect of whether the
signatures on the three cashier’s order applications were forgeries
because he is a gazetted document examiner. This witness was convincing
in concluding that the signatures on the three cashier’s order
applications were not those of the plaintiff. As such, the plaintiff
had discharged its onus of proof as required under s 101 of the
Evidence Act 1950 in establishing that the three signatures were not
those of its signatories. Further, on the balance of probabilities the
documents did not have the mandate of the plaintiff with reference to
the rubber stamp (see para 20).
[*492]
(3) Although the defendant bank had a duty to call its customers to verify
or check in respect of cashier’s order applications above RM20,000 it
would appear that the defendant had not done so. The fact that the
defendant allowed the cashier’s order for RM374,000 issued in the name
Tan Keng Pan @ Thiam Hock to be banked into a joint account bearing the
names Tan Keng Pan and/or Ho Thiam Hock is another piece of evidence
that would support the defendant’s negligence (see paras 21–23).
(4) Tan Keng Pan and Ho Thiam Hock acted in good faith and there was no
mistake when they were paid for exchange of currencies. It was an
unknown person who had gained by the defendant’s mistake. Thus s 73 of
the 1950 Act would not apply in this case and the third parties were
not liable to the defendant (see paras 33–34).
Plaintif merupakan syarikat keluarga yang terlibat sebagai pemborong, pengedar dan peruncit wain dan arak. Ketiga-tiga pengarah plaintif syarikat merupakan adik-beradik. Plaintif membuka akaun semasanya dalam bentuk kemudahan overdraf (‘akaun plaintif’) dengan United Malayan Banking Corporate Bhd, yang mana berikutan dengan beberapa siri penggabungan, kini dikenali sebagai RHB Bank Bhd, defendan. Penandatangan akaun plaintif adalah ketiga-tiga pengarah tersebut, walaupun plaintif menegaskan bahawa bagi tujuan kemudahan perbankan, plaintif hanya menggunakan cap getah nama syarikat plaintif. Pada 19 Jun 2001, akaun plaintif didebitkan sebanyak RM848,806.45, yang mana pecahannya adalah seperti berikut: RM6,302.15 untuk EON Finance; RM374,402.15 untuk Tan Keng Pan @ Thiam Hock; dan RM468,502.15 untuk United Frank Sdn Bhd. Daripada kesemua ini, walaupun jumlah pertama sebanyak RM6,302.15 telah didebitkan daripada akaun plaintif tetapi jumlah tersebut tidak pernah dibayar kepada EON Finance Bhd. Jumlah kedua RM374,402.15 untuk Tan Keng Pan @ Thiam Hock dibenarkan dimasukkan ke akaun bersama iaitu Tan Keng Pan dan/atau Ho Thiam Hock. Ketiga-tiga debit ini dalam bentuk permohonan untuk perintah juruwang. Plaintif berhujah bahawa akaunnya dengan bank defendan telah salah didebitkan dengan jumlah RM848,806.45. Plaintif kemudiannya memfailkan tindakan ini terhadap defendan atas kemungkiran mandat dan/atau kecuaian kerana debit salah sejumlah RM848,806.45 daripada akaunnya. Menerusi tindakan ini, plaintif memohon pengisytiharan bahawa debit tersebut adalah menyalahi undang-undang dan tanpa kebenaran dan jumlah RM848,806.45 harus dibayar kepada plaintif oleh defendan. Defendan pula memfailkan prosiding pihak ketiga terhadap United Frank Sdn Bhd, Tan Keng Pan dan Ho Thiam Hock dan menuntut sejumlah RM468,500 daripada United Frank Sdn Bhd dan RM374,000 daripada dua pihak yang lain tersebut. Defendan [*493] menyatakan bahawa defendan berhak dipampas oleh pihak-pihak ketiga atas sebarang kerugian dan pampasan yang defendan mungkin kena bayar jika defendan didapati bertanggungan atas salah debit daripada akaun plaintif. Defendan berhujah bahawa defendan berhak untuk menuntut ganti rugi terhadap pihak-pihak ketiga untuk bayaran yang telah dibuat atas kesilapan di bawah s 73 Akta Kontrak 1950 dan/atau secara alternatif di bawah prinsip-prinsip wang yang ada dan telah diterima. Tiada perwakilan bagi pihak ketiga yang pertama iaitu United Frank Sdn Bhd tetapi mahkamah dimaklumkan bahawa United Frank telah digulung. Tan Keng Pan dan Ho Thiam Hock mengesahkan bahawa mereka tiada urusan dengan pemgarah-pengarah plaintif syarikat. Ho Thiam Hock, yang bertanggungjawab atas urusan harian Sri Saran Daya Sdn Bhd, sebuah syarikat penggurup wang, menyatakan bahawa bayaran sebanyak RM374,000 adalah untuk balasan bernilai bona fide iaitu memberikan wang asing kepada orang yang tidak dikenali. Kedua-dua plaintif dan defendan memanggil pakar tulisan masing-masing sebagai saksi pakar untuk mengesahkan sama ada tandatangan-tandatangan yang tertera di atas ketiga-tiga permohonan perintah juruwang merupakan penandatangan akaun plaintif. Isu-isu yang perlu diputuskan ialah sama ada ketiga-tiga permohonan perintah juruwang bagi jumlah yang dituntut dibuat oleh plaintif dan sama ada pihak-pihak ketiga bertanggungan terhadap defendan jika defendan diputuskan bertanggungan terhadap plaintif untuk jumlah yang didebitkan daripada akaun plaintif.
Diputuskan, membenarkan tuntutan plaintif dengan kos:
(1) Melihat kepada tingkah laku ketiga-tiga pengarah plaintif menunjukkan
bahawa mereka saksi yang jujur. Oleh itu, tiada alasan untuk meragui
keterangan mereka bahawa mereka tidak memberikan mandat kepada defendan
bank untuk mengeluarkan tiga perintah juruwang (lihat perenggan 20).
(2) Saksi pakar yang dipanggil plaintif memberi keterangan di perbicaraan
lebih berkelayakan untuk memberikan keterangan sama ada
tandatangan-tandatangan pada ketiga-tiga permohonan perintah juruwang
adalah palsu oleh sebab dia merupakan pemeriksa dokumen yang
diwartakan. Saksi ini amat meyakinkan apabila menyimpulkan bahawa
tandatangan-tandatangan pada ketiga-tiga permohonan perintah juruwang
bukanlah milik plaintif. Oleh itu, plaintif berjaya membuktikan atas
beban pembuktian seperti yang dikehendaki di bawah s 101 Akta
Keterangan 1950 dalam mengesahkan bahawa ketiga-tiga tandatangan
tersebut bukanlah milik penandatangan plaintif. Selanjutnya, atas
imbangan kebarangkalian, [*494] dokumen-dokumen tersebut tidak
mendapat mandat daripada plaintif dengan merujuk kepada cap getah
tersebut (lihat perenggan 20).
(3) Walaupun defendan bank bertanggungjawab menghubungi
pelanggan-pelanggannya untuk mengesah atau memeriksa
permohonan-permohonan perintah juruwang yang berjumlah RM20,000 ke
atas, tetapi defendan tidak berbuat demikian. Fakta bahawa defendan
membenarkan perintah juruwang untuk sejumlah RM374,000 atas nama Tan
Keng Pan @ Thiam Hock dimasukkan ke dalam akaun bersama atas nama Tan
Keng Pan dan/atau Ho Thiam Hock merupakan satu lagi bukti kecuaian
defendan (lihat perenggan 21–23).
(4) Tan Keng Pan dan Ho Thiam Hock betindak secara suci hati dan tiada
kesilapan apabila mereka dibayar untuk penukaran wang asing. Adalah
tidak diketahui siapakah yang mendapat keuntungan atas kesilapan
defendan. Maka s 73 Akta 1950 tidak terpakai atas kes ini dan
pihak-pihak ketiga tidak bertanggungan terhadap defendan (lihat
perenggan 33–34).
Notes
For cases on duty of banker, see 1 Mallal’s Digest (4th Ed, 2005 Reissue) paras 1818–1824.
For cases on handwriting expert, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) paras 1465–1473.
Cases referred to
Bank Bumiputra Malaysia Bhd v Hasbudin Haslin [1998] 2 CLJ Supp 332, CA
Barclay’s Bank Ltd v WJ Simms & Cooke (Southern) Ltd [1980] 1 QB 677, QBD
Legislation referred to
Contracts Act 1950 s 73
Evidence Act 1950 s 101
David Hoh (Kingston Tan and HQ Kwong with him) (Heiley Hassan, Tan & Partners) for the plaintiff.
Kumar Kanagasingam (Suhaiza Zakaria with him) (Lee Hishamuddin Allen & Gledhill) for the defendant.
NS Guok (SK Thong with him) (Thong Seng Kong & Assoc) for the third parties.
Noor Azian J:
[1] On 19 June 2001, the plaintiff’s (Kum Wah Sdn Bhd) account with the defendant, RHB Bank Bhd (formerly known as United Malayan Banking [*495] Corp Bhd) was debited by the sum of RM848,806.45 which the plaintiff alleged was wrongfully done by the defendant.
[2] The plaintiff then filed this suit against the defendant for breach of mandate and/or negligence resulting in the wrongful and unilateral debit from the plaintiff’s account with the defendant of the sum of RM848,806.45.
[3] The plaintiff prayed for a declaration that the debit of the said sum from the plaintiff’s account was unlawful and without authority and that the said sum be paid by the defendant to the plaintiff.
[4] The defendant filed third party proceedings against United Frank Sdn Bhd (‘FTP’) and Tan Kang Pan (‘STP’) and Ho Thiam Hock (‘TTP’).
[5] In respect of the third party proceedings, the defendant claimed that it had made payments to FTP, STP and TTP in the following amounts:
| (1) | FTP — | RM468,500; and |
| (2) | STP/TTP — | RM374,000. |
[6] The defendant claims that it is entitled to be compensated by the STP and TTP in respect if any damages and loss that it may have to pay in the event the defendant is held responsible to the plaintiff for the amount the plaintiff claimed was wrongfully paid by the defendant to the STP and TTP under s 73 of the Contracts Act 1950 or amount that was had and received by both the STP and the TTP.
[7] For the trial the plaintiff called five witnesses, they being:
| (1) | PW1 | — Tai Lai Kee. |
| Former bank manager of RHB | ||
| Bank, Pudu branch. | ||
| (2) | PW2 | — Look See Kuan. |
| One of the three directors | ||
| of the plaintiff. | ||
| (3) | PW3 | — Look See Kee. One |
| of the three directors of | ||
| the plaintiff. | ||
| (4) | PW4 | — Bala Shanmugam |
| a/l M Vadivelu. Forensic | ||
| document examiner. | ||
| (5) | PW5 | — Look Kan Chai. |
| One of the three directors | ||
| of the plaintiff. |
[8] The defendant called six witnesses:
| (1) | DW1 | — Aziz bin |
| Abdullah. Assistant | ||
| superintendent of police. | ||
| (2) | DW2 | — Goh Sing Min. |
| Defendant’s branch | ||
| manager | ||
| (3) | DW3 | — Leong Fang Lang. |
| Head cashier with the | ||
| defendant. | ||
| (4) | DW4 | — Aw Peng Onn. |
| Defendant’s | ||
| manager. | ||
| (5) | DW5 | — Mohd Azmi Mohd |
| Yusoff. At one time an | ||
| assistant bank manager of | ||
| the defendant. | ||
| (6) | DW6 | — Harcharan Singh |
| Tara. Chemico-Legal and | ||
| Forensic consultant. |
[9] The third parties called one witness:
| (1) | TPW1 | — Ho Thiam Hock in |
| charge of daily operations | ||
| of Sri Saran Daya Sdn Bhd, | ||
| a money changer company. | ||
| Gave foreign currencies to | ||
| unknown person who had | ||
| banked in the RM374,000 | ||
| into the RHB bank account | ||
| No | ||
| 2–14213–9000292–7. |
[10] The brief facts of the case is that the plaintiff was established since 21 June 1978 as a family company involved as wholesaler, dealer and retailer of wine and liquor.
[11] There are three directors of the plaintiff’s company ie PW2, PW3 and PW5 and they are all siblings being 66 years old, 72 years old and 65 years old respectively.
[12] On 19 June 2001 the plaintiff’s account was debited for the following sums:
| (1) | RM6,302.15 | — In favour of EON |
| Finance Bhd; | ||
| (2) | RM374,402.15 | — In favour of Tan |
| Kang Pan @ Ho Thiam Hock; | ||
| and | ||
| (3) | RM468.502.15 | — In favour of |
| United Frank Sdn Bhd. |
[13] Although the RM6,302.15 was debited from the plaintiff’s account with the defendant, the defendant never actually paid out this amount to EON Finance Bhd.
[14] The TTP confirmed that they did not have any dealings with the plaintiff nor with the directors, PW2, PW3 and PW5.
[15] The plaintiff opened its current account in the form of overdraft facility with the defendant (then known as United Malayan Banking Corp [*497] Bhd which through a series of mergers became to be known now as RHB Bank Bhd) since 12 November 1979 ie 22 years prior to the relevant date. Initially, the plaintiff’s account was at the defendant’s Pudu branch (located in Sg Besi) where upon merger with the defendant’s Jalan Pasar branch in May 2001, the plaintiff’s account was transferred to the Jalan Pasar branch.
[16] Originally the plaintiff’s overdraft facility was RM700,000 but in 1979 it was increased to 1.5m vide the defendant’s letter of offer of 26 December 2000 — exh ‘P3’. The overdraft was for a working capital.
[17] The signatories to the plaintiff’s account were three ie PW2, PW3 and PW5 as well as the plaintiff’s rubber stamp. The plaintiff asserted that for the banking facility it only used the rubber stamp as in exh ‘P18(a)’.
[18] After a trial of 29 days, four days before the first trial judge, one day before the second trial judge and 24 days before myself and notes of evidence totaling 269 pp, I allowed the plaintiff’s claim with cost and ordered the defendant to refund the amount debited with interest from the date the amount was debited ie 19 June 2001 until 19 November 2007. The defendant’s claim against the STP and TTP was dismissed with cost.
[19] The issue before the court is a question of fact ie whether the applications for the cashier’s order for the amount claimed were made by the plaintiff. The relevant application forms for this case are marked as exhs ‘D4’, ‘D5’ and ‘D6’.
[20] In considering the plaintiff’s claim for breach of mandate and/or negligence resulting in the wrongful and unilateral debit from the plaintiff’s account with the defendant of the sum of RM848,806.45, the following were considered:
No mandate given by the plaintiff for issuance of exhs ‘D4’, ‘D5’ and
‘D6’
(1) Direct evidence of PW2 and PW3 denying giving mandate
I have no reason to doubt the evidence of PW2, PW3 and PW5 who at such
ripe ages of 66 years, 72 years and 65 years are running a family
business. Observing their demeanor they appear simple people and I
agree that they bear out as honest witnesses.
(2) Signature of PW2 and PW3 as found in exhs ‘D4’, ‘D5’ and ‘D6’ are
forgeries
Both parties called their own expert witnesses and it was their
evidence that took up most of the trial time. That was why the trial
took so long.
Bala Shanmugam (PW4) was the expert witness for the plaintiff and
Harcharan Singh Tara (DW6) was the expert witness for the defendant.
Based on their qualifications and experiences, I am more inclined to
accept that PW4 is more qualified to give evidence in respect of
whether the signatures on exhs ‘D4’; ‘D5’ and ‘D6’ are forgery. DW6 may
have been the director general of the Malaysian Chemistry Department
but he was never gazetted as a document examiner in the government
service. He said ‘I am not a gazetted document examiner. I have never
produced a technical report. Yes, a technical report can only be
produced by a gazetted document examiner.’. As such I am of the
considered opinion that PW4 is more qualified and experienced to give
testimony in respect of signatures on the three documents mentioned.
From the elaborate evidence adduced through PW4 and the extensive
cross-examination of the same witness by the defendant’s counsel, I am
satisfied on the balanced of probabilities that the two signatures on
all the three exhibits are not those of PW2 and PW3.
I will not elaborate in detail but suffice if I were to say that the
plaintiff’s expert witness (PW4) was able to convince me that the
signatures on the three documents are not that of the plaintiff’s.
The plaintiff had discharged their onus of proof as required by s 101
of the Evidence Act 1950 in establishing that the signatures on the
three documents are not those of the signatories to the plaintiff’s
account with the defendant.
(3) Plaintiff’s forged rubber stamp
I totally agree that there is a difference in the rubber stamp used on
the three documents. PW2 and PW3 had described the discrepancy in the
rubber stamp, they used for banking facility and the one used on the
documents ie ‘No:’ (with colon) as opposed to ‘No.’ (with full
stop).
On the balance of probabilities also, I am satisfied that the documents
did not have the mandate of the plaintiff with reference to the rubber
stamp.
(b) Negligence by the defendant
[21] From the testimonies of the defendant’s witnesses, the defendant had a duty to call its customers to verify/check in respect of applications for cashiers orders exceeding RM20,000. DW2 gave evidence to this effect.
[22] Here again, considering the witnesses, PW2, PW3 and PW5, the simple old brothers who ran the family business I am more inclined to believe [*499] them ie they did not receive any phone calls from anybody from the defendant to check/verify if the plaintiff had applied for the cashier’s order.
[23] Another piece of evidence that would support the sheer negligence of the defendant is that the cashier’s order for RM374,000 issued in the names of STP @ TTP (Tan Kang Pan @ Ho Thiam Hock) was allowed to be banked into their joint account (Tan Kang Pan and/or Ho Thiam Hock). This demonstrates the extreme carelessness on the part of the defendant. Judicial notice can be taken that in banking procedure, @ is an account of one person identified by more than one name whilst joint account is an account of more than one person.
[24] I am therefore of the considered opinion, based on the aforesaid reasons that the application for the cashier’s order were never made by the plaintiff. The plaintiff’s claim against the defendant was therefore allowed with cost.
[25] In respect of the third party proceedings, only the STP and the TTP were represented.
[26] The defendant alleged that as a result of payment to the STP and the TTP without mandate of the plaintiff and/or under a mandate, the defendant is entitled to recover damages against the STP and the TTP under s 73 of the Contracts Act 1950 and/or alternatively under the principles of monies had and received.
[27] The defence of the STP and TTP is essentially that the payment of RM374,000 on 19 June 2001 into their joint account held by them was for a bona fide valuable consideration ie in consideration that Sri Saran Daya Sdn Bhd (a company operating a money changer business) changing a sum of USD30,000, Pound Sterling 30,000, Hong Kong Dollar 200,000 to a person not known to both the STP and the TTP.
[28] The agreed issues to be tried between the parties are as follows:
(a) whether the STP and TTP are liable to pay the defendant for the
judgment sum in the event the defendant is held liable to the plaintiff;
(b) if the defendant is liable to pay the plaintiff, whether the defendant
had made a mistake in making the payment to the STP and TTP as pleaded;
and
(c) whether the defendant is entitled to claim for damages against the STP
and TTP for payment under mistake under s 73 of the Contracts Act 1950
and/or alternatively under monies had and received.
[29] The relevant evidence adduced in respect of the third party proceedings were:
(a) Three applications for cashier’s order exhs ‘D4’, ‘D5’ and ‘D6’ was for
the following:
(i) RM468,500 — For United Frank Sdn Bhd; ‘D4’.
(ii) RM374,000 — For Tan Kang Pan @ Ho Thiam Hock; ‘D5’.
(iii) RM6,300 — For EON Finance Bhd; ‘D6’.
(b) In respect of the cashier’s order for RM374,000 it was banked in into
the joint account of the STP and TTP in spite of the cashier’s
order bearing their names as alias.
(c) The money was banked in as payment for various foreign currencies
mentioned earlier.
(d) The TTP had given the currency to a person who came to the premises of
the TTP’s company.
[30] I have no doubt about the evidence given by TPW1. However I would like to state again that the defendant’s branch that accepted the cashier’s order for the sum of RM374,000 was definitely careless in allowing a cheque bearing the names of the STP and TTP as alias to be banked in into their joint account.
[31] The STP and TTP into whose account the cashier’s order was banked in gave valuable consideration.
[32] It was in fact the defendant who was negligent in not verifying the three application forms and subsequently allowing the cashier’s order for RM374,000 to be banked in into the joint account of the STP and the TTP. If the bank staff had been vigilant and careful and noticed the discrepancy, it would ring a bell and the cashier’s order would be stopped.
[33] Section 73 of the Contracts Act 1950 is in respect of the liability of a person to whom money is paid, or thing delivered, by mistake or under coercion. In the case as for the STP and TTP there was no mistake, they were paid for exchange of currencies. They acted in good faith. It was unknown person who had gained by the defendant’s mistake. In the case of Bank Bumiputra Malaysia Bhd v Hasbudin Haslin [1998] 2 CLJ Supp 332, the case of Barclay’s Bank Ltd v WJ Simms & Cooke (Southern) Ltd [1980] 1 QB 677 was referred to where Geoff J said:
It follows that the payee has given consideration; with the consequence
that although the payment has been caused by the bank’s mistake, the
money is irrecoverable from the payee unless the transaction of payment
is itself set aside.
[34] Based on the aforesaid, I find that the STP and TTP is not liable to the defendant who is found liable for the plaintiff’s losses. Therefore, the defendant’s counterclaim against STP and TTP is dismissed with costs.
[35] With respect to the FTP, the court was informed that it was wound up (exh ‘P25’). Since there was no representation for the FTP and the defendant did not ask for any order, I would strike out the claim against the FTP.
ORDER:
Plaintiff’s claim allowed with costs.
LOAD-DATE: 11/11/2009
Coroner’s inquiry – Application to revise magistrate’s ruling made at coroner’s inquest: Re Teoh Beng Hock (Malaysia)
The Malayan Law Journal
PDF Print Format
Re Teoh Beng Hock
[2010] 1 MLJ 715
CRIMINAL REVISION NO 43–41 OF 2009
HIGH COURT (SHAH ALAM)
DECIDED-DATE-1: 15 SEPTEMBER 2009
YEOH WEE SIAM JC
CATCHWORDS:
Criminal Procedure – Revision – Coroner’s inquiry – Application to revise magistrate’s ruling made at coroner’s inquest – Magistrate made ruling to allow suspect who was investigated by the Malaysian Anti-Corruption Commission to be called as witness to tender his police report – Whether magistrate had erred in making ruling – Criminal Procedure Code s 328
Evidence – Similar facts – When admissible – Whether magistrate had erred in allowing similar fact evidence to be considered – Whether similar fact evidence had material bearing on matters to be decided by magistrate at inquest – Evidence Act 1950 ss 11(b) & 15
HEADNOTES:
At the coroner’s inquest into the cause of death of Teoh Beng Hock (‘the deceased’), counsel for the family of the deceased attempted to introduce a police report (‘the police report’) made by one Sivanesan (‘the complainant’), a suspect who was investigated by the Malaysian Anti-Corruption Commission (‘the MACC’). In the police report the complainant had complained of alleged intimidation, torture, violence and abuse perpetrated against him by the MACC officers in the course of their investigations. Counsel for the deceased’s family had sought to introduce the police report during the cross-examination of an officer from the MACC but the Director of Legal Matters and Prosecution (‘the director’) of the MACC objected to the introduction of the police report during the cross-examination of the MACC officer on the grounds that such police report could only be tendered if the complainant, ie the maker of the police report, was called as a witness. Further the MACC contended that they had not been served with a copy of the police report. Upon this application by the director of the MACC, the magistrate hearing the inquest directed that a copy of the police report be served on the MACC. When the magistrate resumed hearing, the director informed the court that the police report was not relevant because there was no nexus between the complainant’s police report and the death of the deceased in this case. The director pointed out that the complainant had been interrogated as a suspect in his case whereas the deceased was interrogated as a witness in this case. The director therefore contended that the prejudicial [*716] effect of allowing the evidence of the complainant to be admitted far outweighed the probative value of such evidence and urged the magistrate to change his ruling. Counsel for the deceased’s family went on the basis that there was similar fact evidence in that the contents of the police report related to the same place and the same witness. He submitted that since the main purpose of the inquest was to discover the cause of death of the deceased under s 328 of the Criminal Procedure Code (‘CPC’) the admission of the complainant’s evidence and the police report would aid this purpose. Counsel for the Selangor State Government submitted that there was no prejudice caused to the MACC by the magistrate’s ruling in allowing the complainant to testify and allowing the police report. He also brought to the magistrate’s attention the fact that there was already evidence adduced of pre-fall injuries on the deceased, as stated by the pathologist, which were consistent with the conclusion that there was an assault on the deceased. The magistrate after hearing the parties did not change his ruling as to the admissibility of the police report and the calling of the complainant as a witness. Based on the magistrate’s ruling the complainant took his stand as a witness and gave his evidence at the inquest. The director of the MACC then filed the present application for a revision of the magistrate’s ruling and also applied for the complainant’s evidence to be expunged from the court. The sole issue for determination in this application for revision made pursuant to s 323 of the CPC was whether the magistrate had erred when he made the ruling to allow the complainant to be called as a witness to tender his police report.
Held, dismissing the MACC’s application for revision and stay of execution:
(1) From the record of proceedings it was found that counsel for the
deceased’s family had intended to introduce the police report and the
complainant as a witness to show that the MACC officer who had
questioned the deceased was not telling the truth when he said that no
violence was used against any suspect by the MACC or its officers and
to show that actual violence and other violence had been perpetrated by
the MACC officers in the office where the deceased was interrogated
before his death. To support his ruling to call the complainant as a
witness the magistrate had cited ss 11(b), 14 and 15 of the Evidence
Act 1950 (‘the Act’). However, based on ss 11(b) and 15 of the Act
alone it was apparent that the magistrate did not err in law to allow
similar fact evidence to be considered. It was in the interest of
justice that the family of the deceased be given the opportunity to
bring in the complainant to rebut the evidence given by the MACC
witnesses who deny any form of violence being perpetrated by them.
Although there was no nexus between the complainant’s case and the
present case in terms of the date of the interrogation, the person
involved and the subject matter of the interrogation, the nexus that
existed between these [*717] two cases was the similar fact
evidence that the deceased’s family was seeking to establish. The
magistrate was also correct and fair in limiting the scope of the
complainant’s evidence, by stating that the police report be tendered
through the complainant and allowing the MACC to recall its witness
(see paras 56–57& 60).
(2) Upon a perusal of the record of proceedings and after hearing the
submissions of the relevant parties it was found that there was nothing
incorrect, illegal or improper about the magistrate’s ruling. The
magistrate had not erred in fact or law or in any way misdirected
himself to cause any miscarriage of justice in his ruling. There was
therefore no need to expunge the complainant’s evidence, the police
report and photographs from the records of the inquest. As the whole
purpose of the inquiry was to find out the cause of death of the
deceased the magistrate should be given the independence to decide who
to believe and make his own findings in order to arrive at a verdict
(see para 65).
(3) With regard to the oral application for a stay of execution pending an
appeal to the Court of Appeal, there were no special circumstances to
justify such a stay. Giving notice of an intention to file an appeal to
the Court of Appeal did not amount to special circumstances (see para
69).
Pada inkues koroner mengenai sebab kematian Teoh Beng Hock (‘si mati’), peguam bagi pihak keluarga si mati cuba untuk mengemukakan laporan polis (‘laporan polis’) yang dibuat oleh Sivanesan (‘pengadu’), suspek yang disoal siasat oleh Suruhanjaya Pencegahan Rasuah Malaysia (‘SPRM’). Dalam laporan polis tersebut, pengadu mendakwa intimidasi, seksaan, keganasan dan penderaan yang dilakukan terhadapnya oleh pegawai-pegawai SPRM semasa menjalankan penyiasatan mereka. Peguam bagi pihak keluarga si mati menuntut untuk mengemukakan laporan polis semasa pemeriksaan balas pegawai daripada SPRM tetapi Pengarah Perundangan dan Pendakwaan (‘pengarah’) SPRM menghalang pengemukaan laporan polis semasa pemeriksaan balas pegawai SPRM atas dasar bahawa laporan polis tersebut hanya boleh dikemukakan sekiranya pengadu, iaitu orang yang membuat laporan polis, dipanggil sebagai saksi. Selanjutnya SPRM menghujah bahawa mereka tidak menerima salinan laporan polis tersebut. Melalui permohonan ini oleh pengarah SPRM, majistret yang membicarakan inkues mengarahkan agar salinan laporan polis diberikan kepada SPRM. Apabila mahkamah menyambung semula perbicaraan, pengarah memaklumkan mahkamah bahawa laporan polis tersebut tidak relevan kerana tiada perhubungan di antara laporan polis pengadu dan kematian si mati dalam kes ini. Pengarah menegaskan bahawa pengadu telah disoal siasat sebagai suspek dalam kesnya [*718] manakala si mati disoal siasat sebagai saksi dalam kes ini. Oleh itu pengarah tersebut menghujah bahawa kesan prejudis membenarkan keterangan pengadu diterima melebihi nilai probatif keterangan tersebut dan mendesak majistret untuk mengubah keputusannya. Peguam bagi pihak keluarga si mati menghujah atas dasar terdapat keterangan fakta yang sama dalam kandungan laporan polis berkenaan tempat dan saksi yang sama. Dia menghujah bahawa memandangkan tujuan utama inkues ialah untuk mencari punca kematian si mati di bawah s 328 Kanun Prosedur Jenayah (‘CPC’), penerimaan keterangan dan laporan polis boleh membantu bagi mencapai tujuan ini. Peguam Kerajaan Negeri Selangor menghujah bahawa tiada prejudis kepada SPRM oleh keputusan majistret dalam membenarkan pengadu untuk memberi keterangan dan laporan polis. Dia juga membawa kepada perhatian majistret mengenai fakta bahawa terdapat keterangan sedia ada dikemukakan sebelum si mati jatuh, seperti dinyatakan oleh ahli patologi yang konsisten dengan kesimpulan bahawa terdapat serangan ke atas si mati. Selepas perbicaraan pihak-pihak, majistret tidak mengubah keputusannya merujuk kepada kebolehterimaan laporan polis dan memanggil pengadu sebagai saksi. Berdasarkan keputusan majistret, pengadu menjadi saksi dan memberikan keterangan di inkues. Pengarah SPRM kemudiannya memfailkan permohonan ini untuk semakan keputusan majistret dan juga memohon agar keterangan pengadu ditolak daripada mahkamah. Satu-satunya isu untuk ditentukan dalam permohonan untuk semakan ini menurut s 323 KPJ ialah sama ada majistret membuat kesilapan apabila dia membuat keputusan untuk membenarkan pengadu dipanggil sebagai saksi untuk mengetengahkan laporan polisnya.
Diputuskan, menolak permohonan MACC untuk semakan dan penggantungan pelaksanaan:
(1) Daripada rekod prosiding-prosiding, didapati peguam bagi pihak keluarga
si mati cuba untuk mengemukakan laporan polis dan pengadu sebagai saksi
untuk menunjukkan bahawa pegawai SPRM yang menyoal siasat si mati tidak
berkata benar apabila dia berkata bahawa tiada keganasan yang digunakan
terhadap mana-mana suspek oleh SPRM atau pegawai-pegawainya dan untuk
menunjukkan bahawa keganasan sebenar dan keganasan lainnya telah
dilakukan oleh pegawai-pegawai SPRM di pejabat di mana si mati disoal
siasat sebelum kematiannya. Bagi menyokong keputusan beliau untuk
memanggil pengadu sebagai saksi, majistret merujuk ss 11(b), 14 dan 15
Akta Keterangan 1950 (‘Akta’). Walau bagaimanapun, berdasarkan ss 11(b)
dan 15 Akta adalah jelas bahawa majistret tidak membuat kesilapan dalam
undang-undang dalam membenarkan keterangan fakta yang sama untuk
dipertimbangkan. Adalah dalam kepentingan undang-undang bahawa keluarga
si mati diberi peluang untuk [*719] membawa pengadu bagi
mematahkan keterangan yang diberikan oleh saksi SPRM yang menafikan
sebarang bentuk keganasan yang dilakukan oleh mereka. Walaupun tidak
terdapat sebarang kaitan antara kes pengadu dan kes ini mengenai tarikh
soal siasat, individu yang terlibat dan perkara subjek soal siasat,
perkaitan yang wujud di antara kedua-dua kes tersebut adalah keterangan
fakta yang sama yang ingin dibuktikan oleh keluarga si mati. Majistret
juga betul dan adil dalam menghadkan skop keterangan pengadu dengan
menyatakan bahawa laporan polis perlu dikemukakan melalui pengadu dan
membenarkan SPRM untuk memanggil semula saksinya (lihat perenggan 56–57
& 60).
(2) Setelah meneliti rekod prosiding-prosiding selepas mendengar
hujahan-hujahan pihak-pihak yang relevan, didapati bahawa tiada apa-apa
yang tidak benar, menyalahi undang-undang atau salah mengenai keputusan
majistret. Majistret tidak membuat kesilapan dalam fakta atau
undang-undang atau dalam apa-apa cara tersalah arah dan menyebabkan
salah laksana keadilan dalam keputusannya. Oleh itu keterangan pengadu,
laporan polis dan foto-foto daripada rekod inkues tidak perlu ditolak.
Memandangkan tujuan siasatan dijalankan adalah untuk mencari punca
kematian si mati, maka majistret perlu diberi kebebasan untuk
menentukan siapa untuk dipercayai dan membuat dapatannya bagi mencapai
keputusan (lihat perenggan 65).
(3) Berhubung dengan permohonan lisan untuk penggantungan pelaksanaan
sementara menunggu rayuan ke Mahkamah Rayuan, tidak terdapat keadaan
istimewa untuk menjustifikasikan penggantungan tersebut. Memberi notis
niat untuk memfailkan rayuan ke Mahkamah Rayuan tidak bermaksud keadaan
istimewa (lihat perenggan 69).
Notes
For a case on coroner’s inquiry, see 5(2) Mallal’s Digest (4th Ed, 2007 Reissue) para 3125.
For cases on when admissible, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) paras 2283–2288.
Cases referred to
Director of Public Prosecutions v Boardman [1975] AC 421, HL
Harris v Director of Public Prosecutions [1952] 1 All ER 1044, HL
Loh Kah Kheng, Re (deceased) [1990] 2 MLJ 126, HC
Makin v Attorney-General for New South Wales [1894] AC 57, PC
R v Raju & Ors v R [1953] MLJ 21, HC
Retnarasa a/l Annarasa v PP [2008] 8 MLJ 608; [2008] 4 CLJ 90, HC [*720]
Legislation referred to
Courts of Judicature Act 1964 ss 31, 35, 35(2), 36, 37
Criminal Procedure Code ss 323, 324, 325, 326, 327, 328, Chapter XXXI
Evidence Act 1950 ss 11, 11(b), 14, 15
Abdul Razak Musa (Manoj Kurup and Wong Chiang Kiat with him) (Director of Legal Matters & Prosecution, MACC) for the applicant.
Gobind Singh Deo (Karpal Singh and Sangeet Kaur Deo with him) (Gobind Singh Deo & Co) watching brief for the family of the deceased.
Malik Imtiaz Sarwar (Sreekant Pillai with him) watching brief for the State of Selangor.
M Visanathan (June Lo with him) watching brief for the Bar Council.
Yeoh Wee Siam JC:
THE APPLICATION
[1] This is an application for revision made on behalf of the Malaysian Anti-Corruption Commission (‘the MACC’) by YBhg Dato’ Abdul Razak bin Musa (‘Dato’ Razak’), the director of legal matters and prosecution, regarding the ruling made on 8 September 2009 by the magistrate sitting in his capacity as the coroner in the Shah Alam Magistrate’s Court in Inquest No 88–10 of 2009 pertaining to the cause of death of the deceased, Teoh Beng Hock (‘the deceased’).
FACTS
[2] Briefly, the background facts are as follows.
[3] On 8 September 2009, in the course of the cross-examination of the 19th witness in the inquest, SI19, ie Mohd Ashraf bin Mohd Yunus (‘Ashraf’), learned counsel who was watching brief for the family of the deceased, Mr Gobind Singh Deo (‘Mr Gobind’), attempted to introduce a police report made by a complainant, one T Sivanesan (‘the complainant’) on 11 September 2008 ie Shah Alam police report 11/006917/08 (‘the police report’).
[4] Dato’ Razak, on behalf of the MACC, objected to the introduction of the police report in such manner, stating that there is no procedure in an inquest to allow cross-examination of a witness based on a police report. Moreover, MACC had not been served with a copy of the police report.
[5] After hearing the submissions of all parties, at about 12.20pm, the magistrate ordered Mr Gobind to give a copy of the police report to Dato’ Razak for him to look into the matter.
[6] When the magistrate resumed hearing at 12.42pm, Dato’ Razak, informed the court that the police report is not relevant and that Ashraf’s name is not contained in the police report. He submitted that if the police report is to be produced, then the maker or the complainant has to be called as a witness. At that stage, the magistrate made a ruling that the police report would be tendered through the complainant, and not through the cross-examination of SI19 by Mr Gobind.
[7] The learned deputy public prosecutor (‘the DPP’) also agreed that the complainant should be called as a witness.
[8] Dato’ Razak then stated that he could not see the relevancy of calling the complainant.
[9] The DPP, when requested by the magistrate to state his stand on relevancy, stated that both parties had agreed to call the complainant, and MACC has the right to challenge his evidence.
[10] The magistrate then made the following ruling (see p 14 of the notes of proceedings on 8 September 2009):
On the issue of relevancy the guidelines in the court of inquest would
also be the Evidence Act, ss 11(b), 14 and 15 are on similar fact
evidence that seek to be introduced in this proceeding on the basis
that it happened at the same location in SPRM Selangor and might
involve the same persons who are witnesses in this case and it might
relate to same form of pressure being applied or interrogation, those
facts might be similar or relevant. The test, principle in common law
case ofDirector of Public Prosecutions v Boardman [1975] AC 421
and Makin v Attorney-General for New South Wales [1894] AC 57 to
show that if the facts are strikingly similar to the facts in issue
then the court is allowed to admit those evidence. Pihak-pihak telah
berhujah, based on police report, facts are relevant to this inquest,
but the scope to admit those report is just for the purpose of
determining whether there is interrogation, use of force and whether
SI19 is involved in it. To tender the report through the complainant,
SPRM can recall witness.
[11] The records show that on 9 September 2009, Dato’ Razak made an oral application to the magistrate to review his above ruling and not to allow the complainant to be called as a witness. He submitted that there would be no probative value in calling the complainant and the prejudicial effect of calling him would be great considering that the investigations on the complainant as a suspect by the MACC on another matter have not been completed yet. Moreover, he found the police report rather suspicious and he needed other documents eg the complainant’s medical report and results of police investigation on the matter. After hearing all parties, the magistrate [*722] decided not to review his ruling made on 8 September 2009 but to proceed with the inquest in an open manner and with transparence, taking into account the concerns of all parties.
[12] Just before the complainant started giving his evidence in the inquest on the morning of 9 September 2009, Dato’ Razak wrote the letter of application to the High Court, Shah Alam for revision of the magistrate’s ruling. However, he only filed it with the High Court Shah Alam in the Petaling Jaya registry in the afternoon of 9 September 2009.
[13] By the time, the High Court Shah Alam sat in Petaling Jaya to hear the application, the complainant, SI20, had already given his evidence after being questioned by Mr Gobind.
[14] The proceedings in the inquest were automatically stayed under s 35(2) of the Courts of Judicature Act 1964 when the High Court called for the records of the magistrate’s court, regarding the inquest on the afternoon of 9 September 2009 after receiving the application for revision.
[15] The application was heard by me in open court on 10 September 2009.
Submissions of the MACC in support of the application
[16] The main points of the applicant’s submissions as stated in the letter of application and the written and oral submissions are as follows.
[17] The evidence given by the complainant, SI20, is totally prejudicial to the MACC and has no nexus to the inquiry at hand. It tantamounts to ‘collateral proceedings’ with no other than an oblique purpose to smear, taint and tarnish the image of the MACC. SI20 ’s evidence and the police report (I-67) are pure speculation and conjecture on a so-called pattern of behavior attributed to an entire organisation. It does not show that SI19 (Ashraf) assaulted the deceased.
[18] The coroner erred in law when he held that the testimony of SI20 is admissible under ss 11(b), 14 and 15 of the Evidence Act 1950 on the basis that ‘… berlaku tempat yang sama, melibatkan pihak yang sama dan mungkin guna cara yang sama’.
[19] Evidence of similar facts should be excluded unless such evidence has a really material bearing on the issues decided (see R v Raju & Ors v R [1953] MLJ 21 and Harris v Director of Public Prosecutions [1952] 1 All ER 1044). [*723] The coroner’s purpose in allowing SI20 ’s evidence based on ‘mungkin guna cara yang sama’ was not clear at all. It was speculative and undirected. The end result would be prejudicial evidence that would besmirch the entire organisation of the MACC.
[20] The magistrate erred when he mentioned ‘sama ada kekerasan digunakan’. The uncontroverted testimony of the pathologist, SI15, was that there were no pre-fall bodily injuries on the deceased. There was nothing to suggest that SI19 used force on the deceased. Whether SI20 was assaulted by SI19 or others would not assist the coroner in determining what the cause of death of the deceased was.
[21] The police report and SI20 ’s testimony relate to an entirely different case where he was the suspect and investigations have not been completed. It relates to an entirely different period. The police report was lodged on 11 September 2008 ie ten months before the deceased’s death. There is no nexus between that incident that happened to SI20, if it happened at all, and the deceased’s death.
[22] The magistrate had earlier on expunged other evidence in the same inquest on grounds that it impinged on the credibility of others. Likewise, the High Court, in exercising its revisionary powers, can expunge the testimony of SI20 and the two exhibits ie the police report (‘I-67’) and the photographs showing the injuries suffered by SI20 (‘I-68’).
Mr Gobind’s submissions on behalf of the family of the deceased
[23] Under s 328 of the Criminal Procedure Code (‘the CPC’), the meaning of ‘cause of death’ also includes all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death. The magistrate’s duty is to find out the cause of death. In Re Loh Kah Kheng (deceased) [1990] 2 MLJ 126 at p 127 (pp 27–28 of his bundle of authorities), even hearsay evidence can be admitted in an inquest.
[24] SP19, Ashraf, was an officer at the MACC who interrogated the deceased. There is reason to believe that he assaulted the deceased. In cross-examination, SP19 denied torture during MACC interrogation. He said he himself was not involved.
[25] Mr Gobind’s instructions are that SP19 had been involved in an assault at the same place. He just wanted to put forward this evidence and let the magistrate decide whether to believe SP19 or not.
[26] Mr Gobind was not maligning the MACC. The MACC can deny the allegations and cross-examine SI20. How can the magistrate be said to be in error if he feels that this witness is necessary to help him come to a finding?
[27] Looking at the sequence of events, the police report was first put in during the cross-examination of SP19; Dato’ Razak then objected. He said the proper way was to call this witness. When Mr Gobind brought in the witness, Dato’ Razak turned around and said that it is wrong. The magistrate ruled the police report is relevant. This is a complete misconduct by Dato’ Razak, unconscionable and unacceptable at the Bar.
[28] Mr Tan Hock Chuan, acting on behalf of the prosecution, had no objections to the police report being adduced but said that the court is to limit the evidence.
[29] Regarding similar fact evidence, the magistrate read the police report and said that the contents relate to the same place and the same witness. The MACC will deny that there was violence on the 14th floor of the MACC building and say that the deceased committed suicide. The magistrate referred to s 11 of the Evidence Act 1950 on similarity, same place and same witness.
[30] At the end of the inquest, Mr Gobind will submit that the MACC witnesses cannot be believed. If the MACC is allowed to bring in its own witnesses, why can’t the family of the deceased do so?
[31] The High Court ought not to interfere, but should let the magistrate carry on with the inquest. The magistrate can decide at the end of the day on who to believe.
Submissions by Encik Malik Imtiaz Sarwar, counsel watching brief for the Selangor DE State Government
[32] Mr Manoj Kurup said that there were no pre-fall injuries. That is not true. The pathologist testified that there were such injuries. The MACC is mischievous and supplanting the coroner’s court.
[33] The matter falls squarely under s 11(b) of the Evidence Act 1950. There is a nexus ie someone falling out of the same window nine months later. This is similar fact evidence.
[34] There is no prejudice caused to the MACC by the coroner’s ruling in allowing SI20 to testify. Mr Gobind kept within the perimeters set by the [*725] coroner’s court. There is no question of prejudice or embarrassment in inquisitorial proceedings and not to allow it will be prejudicial to the right to know the truth (see Retnarasa a/l Annarasa v Public Prosecutor [2008] 8 MLJ 608 at p 609; [2008] 4 CLJ 90 at p 91).
HIGH COURT’S DECISION
[35] The High Court’s revisionary powers for criminal proceedings are provided in ss 31, 35, 36 and 37 of the Courts of Judicature Act 1964, and Chapter XXXI, ss 323 to 327 of the CPC.
[36] Under s 323 of the CPC, a judge of the High Court ‘may call for and examine the record of any proceeding before any subordinate criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate court’.
[37] Under s 326 of the CPC, ‘No party has any right to be heard, either personally or by advocate, before a Judge when exercising his powers of revision’.
[38] Notwithstanding s 326 of the CPC, in the interest of justice, I fixed the revision case for hearing in order to hear the submissions of the relevant parties.
[39] After perusing the record of proceedings of the magistrate’s court and after considering submissions of the applicant, Mr Gobind and Encik Malik Imtiaz Sarwar, I am of the following opinion.
[40] The sole purpose of the inquest is for the coroner to find out the cause of death of the deceased under s 328 of the CPC.
[41] When the magistrate holds the inquiry, he shall under s 337 of the CPC, ‘inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death’.
[42] Practice Note No 1 of 2007 on guidelines on inquest formulated by the Chief Judge of Malaya and which came into effect on 1 February 2007 has aptly explained in para 1 of p 1 that an inquest is not like a trial. There are no parties to prosecute and to defend. It is only an inquiry by a magistrate [*726] as to the cause of death. The public prosecutor is there not to prosecute anyone but only to assist the court with the examination of witnesses for the purpose of giving evidence.
[43] In para E of p 7 of the same Practice Note, it states, inter alia, that ‘the procedure and rules of evidence are not to be strictly applied. The procedure and rules of evidence which are suitable for the accusatorial process are unsuitable for inquisitorial process’.
[44] The Practice Note is not law but it serves well as an administrative guideline to all magistrates who sit as coroners in any inquest.
[45] I have perused the contents of the police report made by SI20. It is true, as submitted by the MACC, that SI20 ’s report is about another incident that allegedly happened ten months before the death of the deceased in this case. SI20 had alleged intimidation, torture, violence and abuse perpetrated against him by the MACC officers in the course of their investigations against him as a suspect for some possible offence. I also note that nowhere in the police report was Ashraf’s name mentioned. That is why Dato’ Razak persistently maintained his stand that the police report is not relevant because there is no nexus between SI20 ’s police report and the death of the deceased in this case. He said that SI20 was interrogated as a suspect in his case whereas the deceased was interrogated as a witness in this case. He also contended that the prejudicial effect of allowing the evidence of SI20 to be admitted, on the MACC, far outweighs the probative value of such evidence being admitted.
[46] From the record of proceedings on 8 September 2009, I find that Mr Gobind had two main reasons to introduce the police report and also SI20 as a witness, namely:
(a) to show that SI19 was not telling the truth when he said that no
violence was used against any suspect by the MACC or its officers; and
(b) there was actually violence and other abuse that were perpetrated by
the MACC officers on the same 14th floor of the MACC office at Plaza
Masalam, where the deceased was interrogated immediately before his
death.
[47] Mr Gobind went on the basis that there was similar fact evidence and contended that ‘if we don’t inquire into what had happened then we would never find out who were involved if there were criminal activity involved … It’s not a normal occurrence that people fall from the 14th floor while they were being investigated by the MACC; for that reason alone we seek to be given a latitude’.
[48] The DPP then referred to para 2 of Practice Note No 1 of 2007 where it is provided that ‘the proceedings and evidence at an inquest shall be directed solely at ascertaining’, inter alia, ‘(b) how, when and where the deceased came by his death’. He was of the view that the ‘family of the deceased has the right to forward question which may assist the court in determining how, when and where the deceased came by his death’. He agreed that some level of latitude be given to the family and MACC when asking questions. He stated that if Dato’ Razak was given a copy of the police report then the magistrate ‘can allow questions which are relevant …, challenging the credibility of witness is also pertinent’.
[49] Encik Malik Imtiaz Sarwar also brought to the magistrate’s attention that there was already evidence adduced of pre-fall injuries on the deceased, as stated by the pathologist, which led to the conclusion that may be consistent with an assault on the deceased.
[50] The magistrate did allow Dato’ Razak to state his views and objections after the latter was supplied with a copy of the police report. He again did hear the submissions of all parties before making his ruling (see pp 9–13 of the notes of proceedings on 8 September 2009). On record, Dato’ Razak had stated that if the police report was to be tendered, then the complainant has to be called as a witness (see p 12 of the notes of proceedings on 8 September 2009).
[51] From the notes of proceedings on 8 September 2009, it is clear that the magistrate had considered all the views of all the parties, and with their agreement, including Dato’ Razak’s, had decided to make the ruling to allow SI20 to be called as witness to tender his police report.
[52] Regarding the magistrates’ ruling to call SI20 as a witness (see p 14 of the notes of proceedings on 8 September 2009), the magistrate cited ss 11(b), 14 and 15 of the Evidence Act 1950 on similar fact evidence. His basis is that ‘it happened at the same location in SPRM Selangor and might involve the same persons who are witnesses in this case and it might relate to same form of pressure being applied or interrogation, those facts might be similar or relevant’. He also followed the principle in Director of Public Prosecutions v Boardman [1975] AC 421 and Makin v Attorney-General for New South Wales [1894] AC 57, to show that if the facts are strikingly similar to the facts in issue then the court is allowed to admit those evidence.
[53] The magistrate did not go into detail regarding ss 11(b), 14 and 15 of the Evidence Act 1950. I note that s 14 is regarding the relevancy of facts showing the existence of the state of mind or of body or bodily feeling. Section 14 is relevant, but I think ss 11(b) and 15 are more relevant here.
[54] Section 11(b) of the Evidence Act 1950 provides:
11 Facts not or otherwise relevant are relevant —
(a) …
(b) if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact
highly probable or improbable.
[55] Section 15 of the same Act provides:
15 Facts bearing on questions whether act was accidental or intentional
When there is a question whether an act was accidental or intentional
or done with a particular knowledge or intention, the fact that the act
formed part of series of similar occurrences, in each of which the
person doing the act was concerned, is relevant.
[56] Based on ss 11(b) and 15 of the Evidence Act 1950 alone, I am of the opinion that the magistrate did not erred in law to allow similar fact evidence to be considered ie to allow SI20 to be called as a witness to give evidence of torture and violence being perpetrated against him at the same place and by the MACC officers during an investigation. Such similar fact evidence does have material bearing on the issues to be decided by the magistrate in the inquest (see R v Raju & Ors v R and Harris v Director of Public Prosecutions as cited by the MACC). The magistrate’s ruling will allow the family of the deceased the leeway to rebut the evidence of SI19 and the MACC that they do not threaten or torture anyone under investigation or interrogation by them. There is evidence given by the pathologist of pre-fall injuries. The family of the deceased do not believe that the deceased committed suicide; they believe that there must have been assault that led to the deceased’s fall from the 14 floor of Plaza Masalam. It is in the interest of justice that the family of the deceased be given the opportunity to bring in SI20 to rebut the evidence given by the MACC witnesses who deny any form of violence being perpetrated by them. As Mr Gobind had submitted before me, if the MACC can be allowed to bring in their own witnesses to testify that there was no violence perpetrated by them, then why can’t the family of the deceased be allowed to bring in their witness to prove otherwise?
[57] As submitted by the MACC, there is no nexus between SI20 ’s case and this case in terms of date of interrogation, the person involved and the subject matter of the investigation. SI20 was a suspect being investigated for two other matters; the deceased was interrogated as a witness for another case not related to SI20 ’s matters. However, the nexus that can exist between these two cases is the similar fact evidence that the family of the deceased is seeking to [*729] establish ie just as SI20 was being tortured and abused during investigation by the MACC officers at the 14th floor of the MACC office, so did such torture and abuse happen to the deceased during the investigation and his interrogation by the MACC officers at the same place.
[58] I bear in mind that the whole purpose of the inquiry is to find out the cause of death. As correctly submitted by Mr Gobind, under s 328 of the CPC, ‘cause of death’ includes ‘also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his sudden death and as to whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person’.
[59] The magistrate did not make an open-ended ruling to allow SI20 to give his evidence on the police report. Instead, he rightly limited the scope of SI20 ’s evidence to determine the following three matters:
(a) whether there is interrogation;
(b) whether there is use of force; and
(c) whether SI19 is involved in it.
[60] The magistrate ended his ruling by stating that the police report was to be tendered through the complainant (‘SI20 ’) (as previously suggested by Dato’ Razak) and the MACC be allowed to recall its witness, which I think is correct and very fair.
[61] The MACC applied for revision of the magistrate’s ruling only after SI20 was called as a witness and had already given his evidence after being questioned by Mr Gobind at the inquest.
[62] I found from the records that Dato’ Razak had been rather inconsistent in his stand. First, he objected to the tendering of the police report by Mr Gobind during the cross-examination of SI19, stating that it was not the right thing to do since there is no provision for such kind of cross-examination during an inquest. He submitted to the magistrate that such police report can only be tendered if the complainant, ie the maker of the police report, was called as a witness. On his application, the magistrate directed Mr Gobind to supply Dato’ Razak with a copy of the police report. The understanding of all parties, including Dato’ Razak, on 8 September 2009 is that the complainant would be called as a witness to tender his police report. Later, Dato’ Razak changed his mind and wanted the magistrate to change his ruling as well. The magistrate, after hearing all parties again, did not change his ruling made on 8 September 2009.
[63] Based on the magistrate’s ruling, SI20 took his stand as a witness on 9 September 2009 and gave evidence at the inquest. Immediately after that, Dato’ Razak filed the application for revision, and also applied for SI20 ’s evidence to be expunged from the court.
[64] Upon a perusal of the record of proceedings, and after hearing the submissions of all relevant parties, I find that there is nothing that is incorrect, illegal or improper about the ruling made by the magistrate to allow SI20 to be called as a witness to tender the police report according to the scope or perimeters set by the magistrate. There is therefore no necessity to expunge SI20 ’s evidence, the police report and photographs from the records of the inquest.
[65] I am satisfied that the magistrate did not err in fact or law, or had in any way misdirected himself to cause any miscarriage of justice in his ruling. I believe such ruling should be upheld since the magistrate’s purpose is to find out the cause of death of the deceased. The MACC is to be given every opportunity to cross-examine SI20 and challenge or rebut his testimony. If there is nothing to hide, the MACC should not be unduly worried. The whole purpose of the inquiry is to seek the truth. At the end of the day, it is the magistrate who has to decide who to believe, and make his own findings in order to arrive at a verdict. I believe that the magistrate should be given the independence and leeway to conduct the inquiry according to law.
[66] Based on the above, there is no justification for me to revise the decision of the magistrate. Accordingly, I dismissed the application of the MACC.
[67] Mr Manoj Kurup, on behalf of the MACC applied for stay of execution pending an appeal to the Court of Appeal. Mr Gobind objected to such application and also questioned whether there is any legal provision for stay from a decision of the High Court on a revision matter. Dato’ Razak and his team were not able to furnish me with any provision on stay except s 35(2) of the Courts of Judicature 1964 which I think does not apply here. Section 35(2) only applies to a stay of proceedings in the subordinate court when the High Court calls for its record of proceedings for the purpose of revision and supervision.
[68] Be that as it may, I am of the opinion that this is a public interest case and it should be expedited. As it is, already enough time has been expended through this whole revisionary exercise. Mr Gobind also informed me that on next Monday, ie 14 September 2009, an expert witness would be flying in from Bangkok to give evidence at the inquest and all parties have already been notified.
[69] There were no special circumstances shown to me by the MACC to justify a stay of my order. In my opinion, giving notice of an intention to file an appeal to the Court of Appeal does not amount to special circumstances.
[70] Accordingly, I did not grant the MACC’s oral application for stay of execution. I directed all parties to proceed forthwith with the inquest.
ORDER:
MACC’s application for revision and stay of execution dismissed.
LOAD-DATE: 01/22/2010
Timestamps, PC Clock, Metadata are Unreliable in Any Court: R v Dr. Harold Federick Shipman (United Kingdom)
Transcript for Trial Day 21
Wed 10 Nov 1999
The following cases were referred to on this day:
Kathleen Grundy, Muriel Grimshaw, Ivy Lomas, Jean Lilley, Winifred Mellor, Joan May Melia, Bianka Pomfret, Marie Quinn, Irene Turner.
[COMMENT1] No. T982105
THE HIGH COURT OF JUSTICE
Sessions House,
Preston Crown Court,
Lancaster Road,
Preston.
Wednesday, 10th November, 1999
BEFORE:
THE HONOURABLE MR. JUSTICE FORBES
R E G I N A
v.
HAROLD FREDERICK SHIPMAN
____________________
MR. R. HENRIQUES, Q.C., MR. P. WRIGHT, Q.C. and MISS K. BLACKWELL appeared on behalf of the prosecution.
MISS N. DAVIES, Q.C. and MR. I. WINTER appeared on behalf of the defendant.
____________________
Transcribed from the Stenotype notes of
Cater Walsh & Co.,
Official reporters to the Crown Court at Manchester.
___________________
P R O C E E D I N G S
I N D E X
JULIE EVANS, recalled
Cross-examined by MISS DAVIES .. .. .. .. .. 2
Re-examined by MR. WRIGHT .. .. .. .. .. 41
JOHN ASHLEY, recalled
Cross-examined by MR. WINTER .. .. .. .. .. 54
Re-examined by MR. WRIGHT .. .. .. .. .. 67
ROBIN ADRIAN BRAITHWAITE
Examined by MR. WRIGHT .. .. .. .. .. .. 70
Cross-examined by MISS DAVIES .. .. .. .. .. 79
Re-examined by MR. WRIGHT .. .. .. .. .. 83
STEVEN BERNARD KARCH
Examined by MR. WRIGHT .. .. .. .. .. .. 88
Wednesday, 10th November, 1999.
MR. JUSTICE FORBES: Yes, Mr. Wright.
MR. HENRIQUES: My Lord, once Mrs. Evans has been recalled I have discussed matters with my learned friends this morning and there are no other matters that I would seek to elicit in examination-in-chief at this stage. There may be matters in due course that may require her to be recalled but on a different point entirely.
MR. JUSTICE FORBES: Right. Are you content to start your cross-examination now?
MISS DAVIES: Yes, thank you my Lord.
MR. JUSTICE FORBES: Mrs. Evans, if you would come back into the witness box please.
MR. WRIGHT: Furthermore, there is the schedule now, there is a schedule now available and will be distributed.
MR. JUSTICE FORBES: Thank you.
MISS DAVIES: My Lord, overnight we have prepared a schedule which deals with, in respect of each of the 9 exhumations, the date of death, the date of exhumation, whether or not each body was embalmed, the postmortem interval both in weeks and days, and the finding so far as Mrs. Evans is concerned, be it thigh alone or liver and thigh. I have shown it to my learned friend. He agrees it as a document and perhaps I could then hand it in.
MR. JUSTICE FORBES: Thank you very much.
MISS DAVIES: Can I also say during the course of the questioning of Mrs. Evans I will want to refer to some of the liver weights, we have put those into a chart, and also an extract from a textbook relating to weights of livers and skeleton muscles. These documents I hope Mrs. Evans received yesterday. Therefore, to avoid any delays in cross-examination perhaps I could hand all those documents in now.
MR. JUSTICE FORBES: Yes. Very well.
MISS DAVIES: My Lord, perhaps as we have now produced them they can go into the defence bundle, probably the easiest position be at the end of the defence bundle.
MR. JUSTICE FORBES: Into the front of which bundle?
MISS DAVIES: I was going to suggest the end but I don’t feel strongly, the defence bundle my Lord.
MR. JUSTICE FORBES: Yes.
JULIE EVANS, recalled
Cross-examined by MISS DAVIES
Q. Mrs. Evans, the position in the Autumn of last year was this, that you were carrying out your analysis over a period of time as samples were being produced for analysis?
A. That’s correct, yes.
Q. Because as a matter of fact bodies were exhumed over a period of time between August and the latter part of last year and as bodies were exhumed samples were taken and were sent or brought to you and you began and indeed continued your process of analysis?
A. Yes, that’s correct.
Q. And is it right to say that as you gave your evidence to the Court yesterday, beginning with the case of Mrs. Grundy and ending with the case of Mrs. Grimshaw, that represented your chronological process of analysis, save where you might go back to a case for further investigation?
A. Approximately, yes.
Q. When you began with the very first case, which was Mrs. Grundy, that was an analysis done on its own, it was the first exhumation and it was one exhumation and one exhumation alone?
A. That’s correct.
Q. In respect of that very first sampling you attempted to analyse 3 types of samples, one was blood, one was liver and the other was thigh muscle?
A. Yes.
Q. And was that in accordance with what would be perceived as good practice, namely to obtain a number of samples so that you can use them for comparative purposes?
A. Yes.
Q. Insofar as the blood was concerned you told the Court yesterday that there you encountered difficulties because the blood was solid clotted material which in your opinion had been caused by the embalming process?
A. I think that was the most likely explanation, yes.
Q. And therefore of the 3 samples that you received only one you could actually test and the testing was so limited that in fact you could take it no further at all?
A. That’s correct, yes.
Q. And is it fair to say this, that following your attempt to sample the blood on Mrs. Grundy there was no further blood sampled on any of the other bodies?
A. That’s correct yes.
Q. Then moving on to the first 4 cases, do you have a copy of this chart Mrs. Evans?
A. No I don’t.
Q. Let me give you one. It would be easier for you. I will hand you two documents to save time. It is the top document. Members of the jury, I am working off that long schedule. Mrs. Evans, what you can see there simply in chart form are the names of the various women whose bodies were exhumed, the date of birth, the date of exhumation, whether or not each body was embalmed, the postmortem interval in weeks and days and the total morphine findings both in thigh and liver, yes?
A. Yes.
Q. And I will say at once that the total morphine findings are from your reports and your evidence?
A. Yes.
Q. We can thus see that in the first 4 bodies, Mrs. Grundy, Mrs. Pomfret, Mrs. Mellor and Mr. Melia, there you did sampling of both thigh muscle and liver?
A. I did, yes.
Q. And in the remaining 5, Lomas, Quinn, Turner, Lilley and Grimshaw, you sampled only thigh?
A. Yes.
Q. Is my understanding of your evidence yesterday thus, that although you were able to analyse the liver in the first 4 cases, in the remaining 5 the state of the liver was such that you could not analyse it?
A. I could have attempted analysis but any interpretation would have been very much flawed, the decomposition was so far.
Q. So that by the time you get to the last 5 cases you have had to abandon two means or bases of analysis, namely blood and liver, and you have to rely on thigh muscle alone?
A. Yes. There were other tissues which we could have sampled but again because interpretation would have been difficult that was not attempted.
Q. When yesterday you were speaking of your decision not to sample liver in certainly Mrs. Lomas and Mrs. Quinn, in respect of Mrs. Lomas you said of the liver the extensive decay would not give a reliable result and in respect of Mrs. Quinn you said the decomposition would make meaningful interpretation extremely difficult?
A. Yes.
Q. Could you help please, why would extensive decay produce an unreliable result?
A. Just in that we could not be sure of which areas of the lobes we were sampling. You do get variations across livers anyway. There was a lack of tissues, tissue areas that were amass, there were holes evident within that liver tissue.
Q. And in respect of decomposition, for example in Mrs. Quinn, where you said it would make meaningful interpretation extremely difficult, how does a certain degree of decomposition make meaningful interpretation extremely difficult?
A. Meaningful interpretation of any liver, even a relatively fresh liver, is difficult because the differing lobes of the liver can have differing levels of a drug in them. The liver can act as a storage site. This isn’t going to apply to especially exhumed bodies, it could apply even to fresh bodies. So, given that we have these problems to deal with anyway it was felt that it was better to rely on the thigh muscle.
Q. Can I then please just for the moment and deal with the first 4 cases and your readings in respect of the liver?
A. Yes.
Q. What we have done, and it is the second document that I have handed to you Mrs. Evans, it is the shorter of the two documents, is extrapolate from the reports of Dr. Rutherford, the Crown’s pathologist, the liver weights in the cases of Mrs. Grundy, Mrs. Pomfret, Mrs. Mellor and Mrs. Melia. You see there the liver weights for the 4 cases?
A. Yes.
Q. I very much hope that you have the third document that I have handed in this morning. It is a publication the back sheet of which says that it is Current Methods for Toxic Practice. It is published in 1979 and of particular note for this part of the questioning, Mrs. Evans, is that part on the very first page, page 677, where we have percentiles of weights of normal liver. Do you have that?
A. I am afraid I don’t have it to hand.
Q. But you have seen it?
A. I have seen that one, yes. Sorry, I have not seen this one, this isn’t the document.
Q. My apologies?
A. Yes I have. It is just that it is stapled. Thank you.
Q. And it is the very first page I wanted to look at, page 677, percentiles of weights of normal liver, yes?
A. Yes.
Q. And if we look at that it is the second part of the page where we see there various columns where we can see the age of persons and the observed maximum and minimum weight, yes?
A. Yes.
Q. And if we look at the very final entry in that column in terms of age we see there age 70 to 79?
A. Yes.
Q. And we see there a maximum weight of 1,595 grams and a minimum weight of 1,100 grams, yes? Just going to the far right hand column, Mrs. Evans?
A. Right, yes.
Q. Those are the observed maximum and minimum weights and obviously there is a range between the two?
A. Yes.
Q. If we then look at the liver weights in the cases of the first 4 women, we can see that the livers of Mrs. Pomfret and Mrs. Mellor, Mrs. Pomfret let me say at once is 49 and therefore her liver weight would in fact be in the range 2,130 to 1,250,, she is in any event within the range, but one can see both in respect of Mrs. Grundy and Mrs. Melia that both those weights are lower than the normal liver weights?
A. Yes.
Q. Does that surprise you?
A. Not tremendously. I didn’t do any dehydration measurements on the livers of Mrs. Grundy and Mrs. Melia. It is possible that there could have been some dehydration of those tissues, some degradation. That is one of the reasons why we abandoned the liver testing.
Q. When you say some degradation what do you mean by that?
A. Any changes, breakdown in cells, loss of water putrefaction.
Q. You have spoken of loss of water, you have spoken of breakdown of cells. You have used the phrase putrefaction. That is rotting really, isn’t it?
A. Yes.
Q. So what you have in, let’s take the liver, there can certainly be loss of water can’t there?
A. There could be, yes.
Q. But there is also another process going on, namely the rotting process?
A. Yes.
Q. And one result of that rotting process is not simply loss of water, it is a reduction in mass?
A. Yes.
Q. And as a proposition would you accept that it is likely that certainly the reduced liver weights in Mrs. Grundy and Mrs. Melia reflect precisely that degradation, rotting process, and resulting loss of mass?
A. That is a possibility.
Q. If we then look at the correlation between the morphine finding in the thigh and the liver, while there appears to be a reasonable correlation between Mrs. Pomfret and Mrs. Mellor, 0.6 to 1 and indeed 0.7 or .9 sampling the thigh and the morphine being in the middle between the two, there is in fact as between Mrs. Grundy and Mrs. Melia in the order of a four-fold variation in the morphine reading as the between thigh and liver?
A. Yes.
Q. And those are precisely the two livers that are under weight and where you accept the possibility of degradation and rotting?
A. Yes.
Q. Just take Mrs. Melia and what again we have done is to go to the reports of Dr. Rutherford, the Crown’s pathologist, as to his findings as to the state of decomposition. As you would no doubt expect, Dr. Rutherford carried out the visual examination but also carried out a microscopic examination and histology. In respect of Mrs. Melia he attempted histology but found that decomposition was such that a full assessment could not be made. In respect of his overall examination he said all internal organs were affected by moderate decomposition with associated shrinking of organs. Now again would that be consistent with that low liver reading in Mrs. Melia of 332 grams?
A. It could be but I would suggest that would be better directed at Dr. Rutherford.
Q. In this particular case, as in others, that is Mrs. Melia, you found the amphetamine type substance which you attributed, in fact, to the process of putrefaction?
A. Yes.
Q. In other words the rotting process?
A. Yes.
Q. So what there appears to be in this case on your chemical findings the rotting process has produced results?
A. Yes.
Q. And on Dr. Rutherford’s visual findings the decomposition has resulted in shrinking of organs?
A. Yes.
Q. To be fair to you, Mrs. Evans, when you were giving the figures in Melia you put it this way, that the levels are a reasonable estimate but do not necessarily represent an accurate figure?
A. Yes.
Q. Is that because of that four-fold variation between the thigh reading and the liver reading?
A. It wasn’t because of that, it was that there was evidence of decay. You can get considerably higher levels in liver than in muscle tissue.
Q. Then just looking again at this table where we see quite clearly the different correlations, would you accept this, that Mrs. Grundy and Mrs. Melia, standing out as they do, this fourfold variability in reading, it is more likely than not that that variability is due to the process of decomposition?
A. It is certainly a probability.
Q. It being probably that it is due to that process, it must raise questions as to the reliability of any such reading?
A. In the livers, yes.
Q. And that is something which you have acknowledged in your answers?
A. Yes.
Q. Can I ask you this, you must have known having come to the end of those 4 cases that you had, certainly 2 out of 4, this fourfold variability. Was that a factor when you moved onto the next 5 which you took account in deciding, and I am not at the moment criticising you, in deciding that it wasn’t appropriate to attempt sampling in the liver?
A. Yes, it was part of the consideration.
Q. So was it really then a twofold consideration, one you had decomposed livers because in fact the liver in the next lady, Mrs. Lomas, was of very much the weight of Mrs. Melia, it was just in the 300 grams, was it a twofold consideration, one you had the decomposed organ and, secondly, you knew from your previous experience such decomposed organs were giving you difficulties in reliability of your analysis?
A. Yes.
Q. Right. So then you are left in effect with the thigh muscle?
A. Yes.
Q. Again this is not remotely a criticism, Mrs. Evans, you have tried the first line which is blood and have not been able to succeed. You have tried the second line which is liver and you have found, and properly found, it wasn’t reliable, and you have no choice but to rely on the third, which is the thigh muscle?
A. Yes. There were alternative samples, as I said earlier, but again I felt we would have had the same problems as we were encountering with the liver and given that data had been published on thigh muscle I felt that was the best course of action at this stage.
Q. Probably the greatest difficulty you faced in carrying out this analysis was the length of time that these bodies had been in the ground?
A. Yes.
Q. Because again if we just look at the longer table, the very first table, the shortest was the very first exhumation which was Mrs. Grundy. That was 38 days. In respect of Mrs. Pomfret it was 287 days; in respect of Mrs. Mellor it was 134 days; Mrs. Melia 101 days; Mrs. Lomas 501 days; Mrs. Quinn 332 days; Mrs. Turner 852 days; Mrs. Lilley 566 days; and Mrs. Grimshaw 512 days?
A. Yes.
Q. You were embarking on somewhat novel territory, weren’t you, in having to carry out this analysis on bodies exhumed for this period of time?
A. Yes. There has been very little done in terms of studies on exhumed bodies. There are relatively few exhumations for toxicology purposes anyway.
Q. And that did not make your considerable task any easier?
A. No.
Q. Because as a matter of fact morphine levels in dead bodies are generally taken from the blood if that is possible?
A. Yes. The majority of research would give you a blood level as opposed to a tissue level.
Q. That is why at first try you go for the blood because that is where the research has been done, that is where comparable levels have been produced as a result of studies and research?
A. In fairness I wouldn’t expect blood from an exhumed body to give reliable results anyway.
Q. Is that because of postmortem redistribution?
A. Yes.
Q. But in fact the whole issue of postmortem redistribution really was being talked about in the late 80s and it was only at that point there was this realisation that the readings in blood in exhumed bodies was difficult if not impossible to interpret, is that right?
A. There are great difficulties if the means of sampling is not known and a lot of the data published can now be actually deemed to be unreliable.
Q. And so for scientists like yourself working in the field, let’s take it from the late 80s, there has been this growing realisation, certainly over the last 10 years, of the unreliability of blood readings and indeed research is going on even as of now, isn’t it?
A. Yes.
Q. Were you present in Dublin when Gisela Scopp presented her paper in the summer of this year?
A. No I wasn’t.
Q. You have read it haven’t you?
A. I am aware of it.
Q. It is yet another paper that highlights the difficulty of postmortem redistribution in blood levels and morphine readings thereafter?
A. Yes.
Q. By reason of this case, Mrs. Evans, I have had to learn about postmortem redistribution but it may not be the first phrase on everybody’s lips. Could you tell us quite shortly what is meant by postmortem redistribution process?
A. In very simple terms it is the way in which drugs move around the body after death. Although the heart has stopped pumping that does not mean that everything within the body has stopped. In the same way as you can have a liquid where you have a concentrated area at the bottom, leave that to stand and it can diffuse around so that you end with a more even distribution. That can happen in a body, particularly if there is an organ close to a blood vessel that carries a high concentration such as the liver. If you were to take a blood sample close to that there is a possibility that you are not only going to draw blood from the liver but are also have an elevation of drug levels if only by simple diffusion, but that is not the whole story.
Q. It is a pretty complicated story isn’t it?
A. Yes.
Q. And it is a story in which research is going on and if anything it is throwing up more problems as to the difficulty with interpretation?
A. Yes.
Q. Notwithstanding those difficulties of interpretation, blood is still the first sample of choice?
A. It is, especially if you know the site from which blood was taken.
Q. But as we know that was a choice that simply wasn’t available to you?
A. That’s correct.
Q. So you had to move forward on the muscle tissues. The particular difficulty you faced was the absence of scientific studies on morphine levels in muscle tissue?
A. There was relatively little data on any tissue samples.
Q. And indeed such data as existed was not the result of controlled scientific studies, it was purely anecdotal?
A. That’s correct. There have been no controlled studies into this phenomenon.
Q. Because they cannot be done?
A. That’s correct.
Q. So the most one is left with is anecdotal reports of fatalities?
A. Yes.
Q. You yesterday cited the paper produced by Phelby. I think that was 1974, wasn’t it?
A. Yes, Soren Phelby.
Q. And that cited 10 cases where there was death which was attributed to morphine?
A. Yes.
Q. You told the Court yesterday that there was no report of the route of administration?
A. In the work of Phelby it says there it is intravenous, but because it is purely anecdotal I don’t think you can have 100 percent confidence in that as being the route of administration. It is the suggested route.
Q. Indeed, and that is the difficulty, isn’t it, it is anecdotal, it is not in a controlled study?
A. Yes.
Q. And in fact in the Phelby study, although there were 10 cases cited only 6 muscle readings were given of the 10 cases relied on?
A. I think you will find there were 7.
Q. I don’t doubt you are right, Mrs. Evans?
A. It wasn’t in all 10 the muscles were measured.
Q. Of the 10 cases relied upon, because some were not relied upon because other drugs were found, of the 10 cases relied upon, 6 of them gave muscle readings. There was a 7th muscle reading but there was evidence there of another drug being found?
A. That’s true, yes, there was another drug present.
Q. So confining it, because there were 14 cases in all weren’t there?
A. Yes.
Q. 4 were eliminated because other drugs were found in the blood?
A. Yes.
Q. Of the 10 cases remaining, only in 6 of those were there muscle readings given?
A. Yes.
Q. And as you told the Court yesterday the most that one can extrapolate from that is that it was a muscle but there is no information as to which muscle in the body it was?
A. That’s correct.
Q. Is it fair to say this, Mrs. Evans, that by reason of reliance on literature such as Phelby’s article, the most one can do is to make broad generalisations?
A. That’s correct, but my conclusions weren’t just based on the work of Phelby.
Q. But notwithstanding, I am willing to broaden it but is it fair to say that by reason of reliance on literature the most when it comes to levels one can do is to make broad generalisations?
A. Yes.
Q. And indeed yesterday you gave us a range, did you not, and that is extrapolated from the literature?
A. Yes.
Q. Specifically in respect of morphine levels found in muscle there is no good scientific evidence upon the interpretation of morphine levels found in muscle postmortem in an exhumed body?
A. Not under controlled conditions, no.
Q. The science behind the finding is not known, and by that I mean what is not known is the process both in the drug and the muscle which leads to the final conclusion?
A. I don’t understand.
Q. Processes go on in the dead body notwithstanding the fact that it is dead?
A. Yes.
Q. You come to a body days, weeks, months, in this case years, after the death?
A. Yes.
Q. As a scientist you will be aware of processes which can go on?
A. Yes.
Q. As a matter of fact in each of those bodies you cannot say what process and to what extent it went on?
A. That’s correct, yes.
Q. So therefore in respect of any finding of yours, although you can recognise as a scientist the processes exist, you cannot say whether that particular process went on and if it went on to what extent it went on?
A. That’s correct, yes.
Q. Another difficulty which you faced is that because no studies, scientific studies I am talking about now, have been carried out, you do not have a control group and therefore no scientific comparators against which you can interpret the levels you found?
A. No. The only interpretation that can be placed is on levels that have been found in previous muscle tissues.
Q. There is no data available on the disposition of diamorphine or morphine and their metabolites in tissues from experimental studies in controlled conditions, that’s right isn’t it?
A. That’s correct.
Q. There is no data available on the stability of morphine and morphine glucuronide in muscle tissues?
A. That’s correct.
Q. There are no studies available on residual glucuronide activities in postmortem muscle tissues?
A. There are some limited studies.
Q. And insofar as, are those the studies you referred to as Stephen studies which refer to 28 days?
A. Yes. That is the one that does some morphine in livers.
Q. That is morphine in livers?
A. Yes.
Q. So it is not even in muscle tissue?
A. No.
Q. And in fact it is outside the period in all these cases because the shortest period we have here is 38 days?
A. Yes.
Q. So as a matter of fact there are no studies on residual glucuronide activities in postmortem muscle tissues?
A. Yes, in glucuronides, yes.
Q. I have just been asked if I would ask you to explain what a residual glucuronide is?
A. Glucuronides are these breakdown products that the morphine goes to. In getting the total you are measuring morphine glucuronides and morphine.
Q. As a matter of fact the long-term stability of morphine and diamorphine in postmortem muscle tissue has not been scientifically investigated?
A. Not adequately.
Q. There is no data available on the effect of embalming and specifically the effect of formaldehyde on muscle tissue and/or morphine?
A. That’s correct, yes.
Q. There is no data available on the taking of morphine in life and how it is converted into levels subsequently found in muscle?
A. That’s correct.
Q. Crucially there is no data available as to the muscle morphine concentration produced by a therapeutic dose of morphine in life?
A. That’s correct. You could not take tissue, muscle tissues from someone in life.
Q. You, to be fair Mrs. Evans, have acknowledged the difficulties you faced in attempting to interpret such levels and you said in your report, at pages 1187 FR, that caution must be used in interpreting the levels found. Is that something you stand by now?
A. Yes.
Q. And you also added a further caveat to that in respect of the caution because you said that in respect of the data at which you had looked on which some conclusions were based, that data was in the main from relatively fresh samples?
A. Yes.
Q. As matter of fact as a scientific, Mrs. Evans, you have actually been breaking pretty new grounds in this analysis that you have been carrying out, haven’t you?
A. Yes.
Q. So you are left with some anecdotal studies which do not give you evidence upon which you can safely rely as to the route of administration?
A. Yes.
Q. You are left with anecdotal studies which at best tell you it is muscle tissue?
A. Yes. They say it is skeletal muscle tissue.
Q. And you are left, and it was a phrase you used a number of times yesterday, that it was the opinion or that the cause of death was attributed to the use of morphine?
A. No, that the levels fell within a fatal, within the range previously reported. I haven’t speculated it is actually the cause of death.
Q. I was going to the actual anecdotal studies. In respect of the anecdotal studies you said that the cause death was attributed?
A. Yes, in the studies it has been attributed.
Q. And you used that word a number of times yesterday, attributed. What one was left with as a result of reading those studies was in effect relying on the opinion of those who had played a part in the investigation?
A. Yes.
Q. Another word you used yesterday was excessive in terms of dose?
A. Yes.
Q. Would the position be this, that looking at those anecdotal studies you are inferring that the levels you have found here relate to an excessive dose because in those studies those levels have been attributed to death?
A. Not just in doing that. In those studies they also did comparisons to blood levels which given, we do have doubts on the reliability of blood levels anyway, so we have the first pointer that these were fatalities so they were indicating excessive doses from the anecdotal information. In addition to that the studies tended to show that thigh muscle tissues, muscle, skeletal muscle tissues, are generally in reasonable agreement with what you might expect from a blood level. Though they are not exact, the range could take them up to give you around 3 to 4 times actual level. Basing some very loose calculations on that it would suggest that these are not the sort of levels that you could get from somebody taking a normal over the counter preparation in a normal dosage regime.
Q. Which was evidence you gave later?
A. Yes.
Q. Can I move on now please to the way in which you calculate or the basis of your calculation because your unit of measurement is the mass of drug per unit mass of muscle, is that right?
A. Yes.
Q. There is no criticism as to your method of measuring and analysing but you are having to contemplate certainly 3 possibilities, because in all of these cases there is a significant period between death and your sampling procedure?
A. Yes.
Q. You have to contemplate what if anything could have changed between death and when you carry out your analysis?
A. Yes.
Q. The first thing that could have changed is the drug?
A. Yes.
Q. The second thing that could have changed is the muscle mass?
A. Yes.
Q. And the third are factors which could alter the concentration as between drug and muscle mass?
A. Yes.
Q. Let’s deal with the very first decomposition. You have already alluded to it, it being one the reasons you did not in fact proceed with your liver sampling. Can I ask you this, have you ever seen a decomposed exhumed body?
A. Yes.
Q. Frequently?
A. Not frequently, no.
Q. All these bodies showed some signs to a greater or lesser extent of decomposition?
A. Yes.
Q. In Mrs. Grundy the liver, and can I tell you I am obtaining this from Dr. Rutherford’s report, in Mrs. Grundy the liver showed some signs of the effects of embalming?
A. Yes.
Q. In Mrs. Pomfret decomposition had taken place and the liver showed signs of significant decomposition?
A. Yes.
Q. In Mrs. Mellor there was decomposition, the liver demonstrated significant decomposition. In Mrs. Melia exactly the same thing, decomposition, the liver demonstrating significant decomposition?
A. Yes.
Q. In Mrs. Lomas in respect of the thigh there was extensive decomposition. That is Dr. Rutherford’s finding?
A. I haven’t actually seen Dr. Rutherford’s finding in relation to that.
Q. In Mrs. Quinn there was some decomposition and there was decomposition in the left thigh muscle, were you aware of that?
A. I wasn’t aware but my visual examination suggested decomposition.
Q. In that particular body, Mrs. Quinn, Dr. Rutherford said the body was in a state of poor preservation and disintegration and in fact the disintegration of soft tissue was most marked in the left thigh, skin, ankle and foot?
A. As I say, I have not seen that.
Q. In Mrs. Turner and indeed Mrs. Lilley there was extensive decomposition and in Mrs. Grimshaw there was some. Now, as you have earlier accepted, the effect of decomposition is not just the loss of water, it is also a reduction in mass?
A. A loss or reduction in mass is due to dehydration of tissues and rotting but if you are rotting it, the mass that you take would still be the same. If you have got a hole there and you took one gram of it you would still have one gram. The hole wouldn’t weight anything. It is dehydration that accounts for a lot of the shrinkage of these organs.
Q. But it does not account for all of them, does it?
A. No it doesn’t account for all.
Q. So what you have is the loss of water, you have a chemical process going on which breaks down low volatile compounds?
A. Yes.
Q. You have loss of low volatile compounds?
A. Yes.
Q. And you have just a loss of mass?
A. Yes.
Q. Can I take the sort of example that I suspect I can more easily understand, a piece of meat. Just look at the times these bodies have been in the ground. If one put a piece of meat in the fridge, take Mrs. Grundy, for 38 days, I am sure in this Court we would all be able to, if not visualise, understand that the rotting process is not just water, it affects the whole piece, doesn’t it?
A. Yes, microbial activity breaks tissues down.
Q. And so what you are having is a shrinkage to a greater or lesser extent of that piece of meat?
A. Yes.
Q. So if there was something in that piece of meat, let’s say a drug, and there was that shrinkage, that concentration of that mass, that would increase the level of the drug wouldn’t it?
A. Only if, only in terms of, in taking one gram the area might be a bigger area if there was holes in it. You don’t actually get a shrinkage in weight. I actually have measured out one gram.
Q. But one gram might have been 2 grams but you don’t know because that shrinkage process has gone on?
A. Some shrinkage could have gone on.
Q. And the effect of shrinkage is to concentrate the mass isn’t it?
A. Parts of it, but given the water content of these, whether it was purely water or putrefactives, amounted to around what I would have expected in life. It didn’t suggest to me that there was significant shrinkage in terms of increasing that, the concentration of drug from the experiments I carried out. I can’t exclude it completely but—
Q. The other difficulty you have is that none of these bodies were weighed?
A. That’s true, yes.
Q. It is known that there is loss of weight from skeletal muscle?
A. Yes.
Q. So you have no in life comparator do you?
A. That’s correct.
Q. And you have no at time of death comparator have you?
A. No.
Q. So you acknowledge there would be loss of water you have attempted to quantify?
A. Yes.
Q. But in addition to that loss of water there has to be some loss of mass due to the process of decomposition?
A. Yes.
Q. The problem you have is you cannot quantify it can you?
A. That’s correct.
Q. And what that process of concentration will do is to increase any drug in that mass, the level of the drug in that mass?
A. To some extent, but from my visual examination I wouldn’t, it would suggest to me there wasn’t extensive concentrations. There could have been some concentration I will accept.
Q. And you also accept that if there has been some concentration the very fact of concentration would elevate the drug level in that mass of muscle it?
A. Could elevate it, yes.
Q. And whatever calculation you have done on loss of water is not the complete answer to that concentration of muscle and the resultant level of drug rising?
A. Yes.
Q. Have you also, speaking of decomposition I hope, because I did actually ask it be given to you yesterday, Mrs. Evans, have you been given an article headed Time Since Death and Decomposition of the Human Body, Variables and Observations in Case and Experimental Field Studies by Mann et al?
A. Yes I have.
Q. Have you had an opportunity to read that?
A. I have had an opportunity to read the majority of it, yes.
Q. Can I give you a copy. My Lord, I am more than happy that this be circulated. It is a short point and unless anyone wants me to for the time being I won’t. What in fact that was looking at was the findings and observation of 8 years of research which may clarify some of the questions concerning bodily decay, yes?
A. Yes.
Q. Turning to page 108 of that paper, in fact Mrs. Evans, quite inadvertently it has been marked so you probably can see the point I am going get to anyway, it is under embalming?
A. Yes.
Q. “Embalming does greatly slow the decay rate of the body Further, the pattern of decay is different in an embalmed body from one that decays naturally. For example, unembalmed bodies usually show the first signs of decay in the face whereas embalmed bodies first show decay in the buttocks and legs perhaps as a result of insufficient penetration of the embalming fluid in these areas.” Yes?
A. Yes.
Q. Do you have any reason to disagree with this article, which I know has subsequently been taken up in other textbooks, as a proposition as to the process and areas of decomposition?
A. Certainly it is a proposition. I would question just how reliable it is seeing as it is based on a single body buried, it would appear, directly into soil, but yes, I would accept that this is published and has been accepted in other works.
Q. So you accept that this has been published and accepted in other works and following from this it certainly suggests that in embalmed bodies the first sign of decay is in the buttocks and legs?
A. Yes.
Q. And we know, because you have told the Court, that in respect of the muscle that came from the thigh, ie the leg?
A. Yes.
Q. And if again we look at our chart again we can see that of the 9 bodies that were exhumed 6 of them were embalmed, Mrs. Grundy, Mrs. Pomfret, Mrs. Mellor, Mrs. Lomas, Mrs. Quinn, Mrs. Turner and Mrs. Grimshaw. I don’t think there is any dispute about that, is there Mrs. Evans?
A. There is no dispute, only that in some of the cases I didn’t have the full details about the embalming.
Q. Very well. My Lord, I am entirely in the hands of the Court. I am conscious these are not the easiest of topics, and you indicated yesterday that we would stop at appropriate moments. I am going on to a separate topic now. I am more than happy to continue with but if it is appropriate I should stop now I will do that.
MR. JUSTICE FORBES: It is a matter for you, Miss Davies, really. How long is this next topic going to take roughly?
MISS DAVIES: I can take this in about 5 minutes.
MR. JUSTICE FORBES: Right.
MISS DAVIES: Let’s just deal now please with embalming, because you told the Court yesterday that embalming fluid contains as its main active ingredient the chemical formaldehyde?
A. Formaldehyde and methanol, yes.
Q. Forgive me, you gave both. And you have already accepted that there is no research on the effect of formaldehyde on morphine levels found in muscle tissues?
A. That’s correct.
Q. The effect of formaldehyde is that it may chemically change one drug to another and by reason of that affect the concentration of the drug ultimately detected?
A. With some drugs yes, that does happen.
Q. A drug concentration determined in formaldehyde affected tissue cannot be taken at face value as the real level of the drug in the tissue before formaldehyde was added is not actually known?
A. That’s correct.
Q. The effect of formaldehyde can be different depending on whether it is in the tissue itself or in the surrounding tissue?
A. Yes.
Q. If the formaldehyde is in the tissue it can increase the mass of the tissue because basically it is adding liquid?
A. Yes, diluting out effects.
Q. However, if it is in the surrounding tissue it has a dehydrating effect doesn’t it?
A. Yes.
Q. And what it can do is extract the water into the surrounding tissue?
A. Yes it can.
Q. And therefore it would increase the concentration of the muscle mass?
A. That is the theoretical possibility. However, of the works that I have seen done with embalming fluid the majority suggest that embalming has a dilution effect, it actually is increasing mass more than decreasing it. But I would accept that if it is not actually penetrating that tissue there is a possibility that formaldehyde could draw water away.
Q. As a matter of fact in the 6 bodies that were embalmed the most you can say is that formaldehyde was used as part of the embalming process but you cannot say in any one of those samples what effect formaldehyde had on the sample you tested?
A. That’s correct.
MISS DAVIES: My Lord, could I stop there now please?
MR. JUSTICE FORBES: If that is convenient?
MISS DAVIES: Yes.
MR. JUSTICE FORBES: Very well, members of the jury, I will give you a short break for 10 minutes before we move on to the next part of the evidence.
Short adjournment
MR. JUSTICE FORBES: Yes, Miss Davies.
MISS DAVIES: Mrs. Evans, we have insofar as some questioning is concerned come thus far, it is accepted that in all of these bodies there is a greater or lesser degree of decomposition?
A. Yes.
Q. Which is wholly to be expected given the period of time between death and exhumation?
A. Yes.
Q. The process of decomposition brings about changes in the deceased’s body affecting various parts of it, including muscle, tissue and levels that can be found therein?
A. Yes.
Q. In respect of a muscle, that muscle can become more concentrated, ie can shrink down, by reason of rotting, putrefaction, call it what you will?
A. Yes.
Q. And the process of that concentration can elevate any subsequent drug level found in that piece of muscle?
A. To some degree, yes.
Q. And the difficulty that you and any other scientists like yourself have is you cannot quantify the degree to which that elevation has occurred?
A. No. Other than measuring water content there is no other means to determine that.
Q. But the water content only tells part of the story because what you cannot quantify is the loss of other compounds, materials, whatever?
A. Yes.
Q. So that for example you could have that 2 gram piece of tissue that would have been present at the time of death but when you go to carry out your sampling, by reason of this process of rotting or decomposition that 2 gram piece of tissue has shrunk down to a one gram piece of tissue?
A. That could happen, yes, but what must be remembered is that the drug isn’t just distributed in the tissue area, it is also distributed in the water content as well.
Q. But the problem that you have is that because you do not know the weight of the original tissue, and by no proper means could you know that, you have to deal with the tissue as you find it at sampling?
A. That’s correct.
Q. And you have to deal with it and you really did have to deal with these in quite difficult circumstances didn’t you, given the decomposition?
A. Yes.
Q. So we are left with this, that you are doing your professional best to analyse decomposed material and produce a level when by reason of the processes which have occurred in that tissue you do not know whether the level accurately reflects the level it would have obtained at the time of death?
A. That’s correct.
Q. Can I now please just deal with one example and it is the longest period, it is Mrs. Turner. If we look at our chart Mrs. Turner died on the 11th July 1996. The postmortem interval was 852 days and in fact it was in, I am sorry?
A. It is okay. I have my own table anyway.
Q. In respect of Mrs. Turner that gave the highest level of all your morphine readings, the reading in the thigh muscle being 1.4 to 1.6?
A. Yes.
Q. When you carried out your analysis of water content Mrs. Turner was the lowest, wasn’t she?
A. Yes, she was. There was around about a 7 percent reduction from what you would normally expect.
Q. I think it was 67 percent when you gave the average reading as being 74 percent?
A. Yes.
Q. Insofar as autopsy findings were concerned, I am now going to Dr. Rutherford’s report again Mrs. Evans, he describes the decomposition there as moderate and characterised by fatty tissue turning to soap. There is in fact a particular description of that, is there not?
A. There is. I am afraid I can’t recall exactly the term at the moment.
Q. I think it is adiposae but I may not be pronouncing it correctly?
A. Yes.
Q. He also found patchy parchmentation affecting the skin and subcutaneous tissue and the internal tissue?
A. Yes.
Q. Were you aware of that?
A. I was aware of that.
Q. And another word for patchy parchmentation would be drying?
A. Yes.
Q. He found drying of the skin, subcutaneous and internal tissue?
A. Yes.
Q. Were you aware that when Dr. Rutherford attempted histology on the body of Mrs. Turner he found that the degree of post mortem degenerative changes precluded meaningful interpretation?
A. Yes.
Q. In toxicological terms it was found that it was suggestive of extensive decomposition?
A. Yes.
Q. Given that in Mrs. Turner’s case we have one of the longest intervals between death and exhumation, on your analysis of water content it is 7 percent below normal, on Dr. Rutherford’s findings there is decomposition, there is drying affecting internal tissue and degenerative changes precluding histological interpretation, do you think it is simply coincidence that the reading you have there found is the highest morphine reading?
A. I think in part there was dehydration to account, so that is going to have devaluated it possibly by some 10 percent but I would still put it above 1, especially given that I took the areas deep within the muscle tissue where there was some reddening so I deliberately targeted where there was less decomposition. There obviously is going to be some contribution from the decomposition, the extent of which I can’t measure, but I couldn’t say that entirely accounted for that being the highest level.
Q. And we have this don’t we, we have the highest level which you say firstly is likely to be affected by the reduced water content?
A. Yes.
Q. You accept that decomposition would affect that reading but you cannot quantify the extent?
A. Yes.
Q. And can I just deal please with your point on the decomposition. You went in to try and find a deeper level of tissue, is that right?
A. Yes I did.
Q. The process of decomposition is caused by bacteria, is it not?
A. That is one of means of decomposition, yes, bacterial invasion.
Q. And the bacteria would come from the lower abdomen?
A. Yes.
Q. It would work from the inside out?
A. Assuming that the skin surface was intact. We know that some of the skin surface was not intact, therefore you would get microbial invasion from the surface as well, but yes.
Q. Therefore when you are going into that deeper tissue you are actually going deeper to the path of bacteria that is coming out, aren’t you?
A. Only if you are also tracking upwards. If we were just tracking down, all I looked for was the areas that looked most like you would normally expect to encounter in a fresh sample, so yes, they went deeper into it in that I have a skin surface and then I just tracked down. That does not necessarily mean that it was closer to the abdominal cavity.
Q. You cannot say?
A. I can’t say.
Q. And to be fair to you again you are trying to do your professional best but this wasn’t a scientific finding, it was a visual finding?
A. It was.
Q. But you accept the process of bacteria would be working from that lower gut out?
A. Yes.
Q. Insofar as you carried out again your water content calculations, the two where you found reduction in the heart were Lomas and Quinn, were they not? I think you found a 29 percent reduction in each?
A. Yes.
Q. Mrs. Quinn, together with Mrs. Grimshaw, was the lowest morphine reading, it was 0.3 to 0.4?
A. Yes.
Q. Given that you had found reduced water content in the heart which again can affect the concentration of an organ, can’t it?
A. It can affect?
Q. The concentration of an organ, the reduced water content?
A. In the heart, yes.
Q. The only other sampling that you dealt with in Mrs. Quinn was that of the thigh?
A. Yes.
Q. Insofar as you carried out this analysis of water content you said in your report, page 1187 FK, it was the paragraph after you cited your percentage findings, you said, “The water content of muscle tissue is generally regarded as approximately 74 percent. Thus my findings suggest that little dehydration had taken place in the tissues used in the morphine determination in these 9 women. It is, however, by no means certain that the water present in the muscles was that present at the time of death. It may be that some exchange has occurred.” What has happened, Mrs. Evans, in that process?
A. In that a lot of these were in very watery ground, some of the coffins were actually water filled. I can’t be sure that the water I was determining was the water that was present at the time of death. It is, of course, possible there was some dehydration but then you have tissues sat in a watery solution and rehydrating from the water surrounding the body.
Q. So if we have one fluid coming in and moving around, yes?
A. Yes.
Q. Drug would be in fluid form, wouldn’t it?
A. The drug from the body could have gone out into the liquid in the coffin and then subsequently been reabsorbed, yes.
Q. So as you have this exchange of water fluid there could also be movement of drug fluid, couldn’t there?
A. There could if the drug has gone out into this solution, which is a distinct possibility. It could then be reabsorbed in the muscle tissue. But it had to have come out of the body in the first place to be reabsorbed.
Q. That creates another uncertainty as to the level of drug subsequently found?
A. Yes.
Q. And within the fatty tissues in the muscle there can be pooling of blood, can there not?
A. Yes.
Q. It can drain muscle of blood?
A. As I understand it, yes.
Q. And it can go the other way and congest it by adding to the blood in the tissue?
A. Yes.
Q. Because all the time a body is in the ground there is this physical process of diffusion going on?
A. Yes.
Q. So again that can effect any subsequent reading in muscle?
A. Yes.
Q. Within the muscle is fat, isn’t there?
A. Yes.
Q. The morphine is a highly fat soluble drug?
A. Relatively speaking it is fat soluble, yes.
Q. As a matter of common sense the amount of fat in any one person varies?
A. Yes.
Q. And therefore the amount of the fatty streaks in the muscle is going to vary person to person?
A. Yes.
Q. And therefore in those fatty streaks there could be different concentrations of a drug?
A. That is a possibility, yes.
Q. It is accepted, isn’t it, that within one person, taking drug levels in muscle there is muscle variability?
A. From one muscle to the next yes there is. There don’t appear to be significant variations within the same muscle as long as it is a remote skeletal muscle, such as the thigh muscle.
Q. There are some variations?
A. There are some variations, I think as much as a fourfold variation has been reported, but I did take 2 different areas and did have good correlation suggesting there wasn’t significant variation within the muscle tissue I was sampling.
Q. You took two samples?
A. In the cases, yes, I took two samples of muscle tissue.
Q. But the difficulty is this, isn’t it, that within that sample procedure, and I am not criticising you Mrs. Evans, please don’t think that, accepting that there is this muscle variability even within one piece of muscle, you cannot be confident that a third or fourth reading would have produced a different result?
A. I would doubt that it would within the muscle tissues I had. I suspect partly as a result of the fact they had been deep, they had been in the ground so long that an equilibrium had been established. It may be a factor that these bodies had been in the ground so far that we weren’t seeing significant variation across the muscle tissue, as opposed to some of the studies where they have seen these differences which were in relatively fresh samples.
Q. This issue of variability, the muscle variability, is another aspect of the process which can be affected by postmortem redistribution, isn’t it?
A. Yes.
Q. And the most you can proffer, and properly proffer, is an opinion that the muscle tissue is less likely than blood to be affected by post mortem redistribution, but it is still susceptible to it?
A. Yes.
Q. And the difficulty that you encounter is that, accepting that a postmortem redistribution will affect that tissue, you do not know to what extent because you have not been able to carry out any trials prior to your sampling?
A. Correct, in the same way as the people who conducted the original studies couldn’t know that.
Q. That is a difficulty which any scientist in your position would face?
A. Yes.
Q. Can I now please deal with the drug. We have already seen that within the body. Let’s just take the first 4 cases. There are differences in levels. I mean the starkest example are two of those cases where there is a fourfold difference?
A. Yes.
Q. As you have already accepted, notwithstanding the fact that a body is dead and indeed buried, there is still diffusion within that body?
A. Yes.
Q. And as you have accepted there is, for example, diffusion of blood, there is also diffusion of drug?
A. Yes.
Q. And again one of the difficulties that you would have encountered is that although as a scientific you know that that diffusion will have taken place, in respect of any specific body you do not know the nature or the extent of that procedure in any one body?
A. That’s correct.
Q. Putting it very shortly, Mrs. Evans, you do not know as a matter of fact where and at what level any drug was in the body at the time of death?
A. That’s correct.
Q. The most you have been able to do, and properly been able to do, is achieve a level which you believe to be, as you described it yesterday, representative?
A. The most representative level that we would expect in tissues of these types.
Q. But the major difficulty is you cannot say as a scientist that it accurately reflects the level of the drug at the time of death?
A. That’s correct.
Q. Would you just allow me one moment. One of the other difficulties that you encounter, or it may be you don’t even have to apply your mind to this, tell me if that is the case, is that although you find a level you are not able to say whether that represents one dose or more than one dose?
A. I can’t say.
Q. What I would like to do now, Mrs. Evans, is just move on to the individual cases please and just deal with some of the factors that arose within them. If at any time you want to look at any more documentation please don’t hesitate to say so?
A. Thank you.
Q. In respect of Mrs. Grundy, I am going to take them in the order that you gave evidence to the Court, in respect of Mrs. Grundy you were aware, were you, that according to the pathologist the liver showed some of the effects of embalming?
A. I was not aware at the time of the analysis but I have subsequently been made aware of that.
Q. And we have already dealt with the effect of formaldehyde and I am not going to go through that again. You said in this case, as you did in others, that you did not undertake testing for all drugs?
A. That’s correct. It is impossible to test for every drug anyway.
Q. And again, I am not putting that as a criticism, it is a fact you go so far and you stop?
A. Yes.
Q. It was a further finding by Dr. Rutherford that in respect of the internal organs of Mrs. Grundy all were affected to a greater or lesser degree by embalming. Were you aware of that?
A. Yes I was.
Q. Now after you carried out the analysis of the samples obtained from the body of Mrs. Grundy you were asked then to analyse one particular tablet which was found near a bedside table?
A. Yes.
Q. And you found that in fact to be nitrazepam?
A. Yes, a 5 milligram nitrazepam tablet.
Q. Which is a sleeping tablet?
A. Yes.
Q. And you were asked about that and about the overdose produced by the taking of too many of those tablets and you described certain symptoms. As a matter of fact have you ever had to treat or deal with anyone suffering from nitrazepam overdose?
A. No, my comments were based on literature reports.
Q. In other words you went to the textbooks?
A. Yes.
Q. Because your field is that of science, you are a chemist you are not a doctor?
A. Correct.
Q. In your report, and indeed in the evidence that you gave to the Court yesterday, you said that in respect of nitrazepam it is not stable in biological specimens which are not stored under refrigerated conditions?
A. That’s correct, yes.
Q. As a matter of fact Mrs. Grundy, obviously her body was not stored in refrigerated conditions. You accepted in the report that you made to the Court the possibility that any nitrazepam present at the time of death may have been lost?
A. Yes.
Q. That is because of the basic instability of the drug in unrefrigerated conditions?
A. Yes.
Q. In respect of Mrs. Pomfret there decomposition had taken place. In respect of Mrs. Pomfret’s liver there were signs of significant decomposition. In respect of Mrs. Pomfret your finding was positive for opiates, benzodiazepine and amphetamine type substance, and this was probably the first of the cases, wasn’t it, where you attribute the initial finding of the amphetamine type substance to the process of putrefaction?
A. Yes.
Q. Rotting?
A. Yes.
Q. You were subsequently asked in the case of Mrs. Pomfret to consider the issue of lithium?
A. Yes.
Q. I don’t know how much you know about this lady’s medical history. Were you aware there was a rather lengthy psychiatric history and she been in receipt of medication?
A. I was aware of medicines she was in receipt of over a period. In terms of her actual medical conditions I could only surmise from the medicines prescribed that that was the case.
Q. Were you aware that when this lady died her treating psychiatrist, Dr. Tait, got in touch with Dr. Shipman because he had a fear that she may have committed suicide?
A. I have only recently been made aware of that, yes.
Q. And you were asked to consider whether or not this lady had died from a lithium overdose?
A. Yes.
Q. Does it follow from the answer you gave in respect of nitrazepam that you have never seen nor indeed had to treat any person suffering from a lithium overdose?
A. That’s correct.
Q. Does it follow that any evidence that you gave as to any such symptoms comes, as in the previous case, from textbooks or medical literature?
A. Yes it does.
Q. As a matter of fact you did not analyse to see if lithium was present, did you?
A. I didn’t, no.
Q. Lithium is an element, one of the most basic forms of chemical, isn’t it?
A. Yes.
Q. It would not have deteriorated so if you so tested you would have been able to discern whether it was there or not?
A. Yes, but the levels wouldn’t have been interpretable given that we were looking at thigh muscles. Again we are back to how do you interpret what you find anyway.
Q. Is that why you did not carry out that particular procedure?
A. Yes.
Q. Can I turn please to Mrs. Mellor. Again the liver, significant decomposition, again here was another body where you found the putrefaction, the chemical evidence of putrefaction on that initial screening of an amphetamine type suggestion?
A. Yes.
Q. And again, like Mrs. Grundy, again not a criticism, such testing as you carried out was not exhaustive, not all drugs were excluded?
A. That’s correct.
Q. Mrs. Melia. We can probably do it this way, Mrs. Evans, do you have pages 423 and 424 in our bundle of your statement of the 26th October 1998? If it is easier for you to deal with it in this way it is pages 4 and 5 of your statement of the 26th October 1998?
A. I don’t actually have your bundle at all. This is my own.
Q. Let’s make sure you have those 2 pages. I will tell you at once it is to do with the medication found in respect of this lady. Do you have your statement in respect of Mrs. Melia of the 26th October 1998?
A. I do.
Q. Then let’s just turn to that. Have you got it in front of you?
A. I have.
Q. Do you have pages 4 and 5?
A. Yes.
Q. At page 4 of your statement, page 423 of our bundle, you there set out the medication which you were given, your understanding being it was medication found at the home of Mrs. Melia at the time of her death?
A. All I knew it was passed to the police by a relative.
Q. I see, and then it was subsequently passed to you?
A. Yes.
Q. And there you list the medication. The first is amoxicillin?
A. Yes.
Q. And you there say, “This bottle contained 6 small red tablets whose appearance was not consistent with that of amoxicillin tablets. Preliminary testing of these tablets suggested them to be prednisolone and their appearance was consistent with this identification.” Amoxicillin is an antibiotic isn’t it?
A. Yes?
A. What is prednisolone?
A. It is a steroid type drug.
Q. Used for what?
A. I am afraid I am not exactly sure without just checking.
Q. Very well. Putting it very shortly, the wrong tablets were in the wrong bottle?
A. Yes.
Q. And when you did your preliminary testing what testing did you do?
A. They were identified on the basis of their appearance and their markings.
Q. The sort of markings that we all of us have seen on tablets?
A. Yes.
Q. What were the next tablets you found or were given to you?
A. It was a bottle labelled as being metronidazole.
Q. Do you know what they are?
A. There are an antimicrobial drug.
Q. And you did not carry out any specific testing, you worked on the basis of similar markings, is that right?
A. Yes.
Q. And then some more amoxicillin was given in a bottle and again you dealt with appearance without specific testing and you found those to be amoxicillin?
A. Yes.
Q. Then penicillin was found in a bottle and again you dealt with appearance but not specific testing?
A. Yes.
Q. Quiet life, I think these are probably herbal preparations, aren’t they?
A. Yes they are.
Q. And again you dealt with appearance but not specific testing?
A. Yes.
Q. Calms, that is a natural plant remedy, yes?
A. Yes.
Q. You found 94 white tablets there. You did not test them, again you went on appearance?
A. Yes.
Q. And what was the next one please, Mrs. Evans?
A. It was a box has was labelled theophylline.
Q. What exactly is theophylline?
A. It is a bronchodilator. It can be used in the treatment of things like asthma.
Q. You found tablets in foil blister packs. Again no testing, you went on the appearance?
A. Yes.
Q. And the final box was ferrograd. Do you know what that is?
A. Ferrous sulphate used in the treatment of iron deficiency.
Q. Again you went on appearance, no specific testing?
A. Yes.
Q. That is all I want to deal with. I just wanted to identify the drugs that certainly had been handed to you. Now in respect of Mrs. Melia this was the one body where you found morphine in the stomach?
A. It was the only one we actually had stomach contents.
Q. I see, it was the only one where you had stomach contents?
A. Yes.
Q. Because what in fact you found in Mrs. Melia, just allow me one moment, you found in the stomach a viscose green brown liquid, yes?
A. Yes.
Q. Does it follow from the answer that you have given that in respect of the other bodies you examined the stomach contents but there are none?
A. In the majority no stomach contents were submitted to the laboratory. Presumably the stomachs had been washed anyway in the embalming process.
Q. I see. So insofar as you have been able to carry out an analysis of these stomach contents, you were precluded from doing any other cases because none were for, warded to you?
A. Yes, presumably none being available.
Q. In respect of those stomach contents you said that they were a viscose green brown liquid. There was no obvious tablets or is it particulate matter?
A. Particulate matter.
Q. And what is particulate matter?
A. Any sort of solid material, whether it being just granules as opposed to whole tablets, so it could be a tablet that had broken down or even a granular preparation of drug.
Q. So what you were analysing was this viscose liquid?
A. Yes. There wasn’t a lot of it and it did actually resemble bile.
Q. Because of the colour?
A. Yes.
Q. Greeny brown?
A. Yes, but at the same time it could just have been some food that had putrefied in the stomach.
Q. On your finding you found 2 milligrams of morphine, yes?
A. Very approximately. It wasn’t accurately determined but yes, approximately 2 milligrams.
Q. 2 milligrams of morphine in this greeny brown liquid?
A. Yes.
Q. Are you aware of the colour of certain forms of oral morphine?
A. I am not exactly sure in terms of what they would look like once they have reacted with stomach acid.
Q. Are you aware of a form of morphine known as cervadol?
A. I have not actually seen that preparation no.
Q. Are you aware of its existence?
A. Yes.
Q. Are you aware that it is pale green?
A. I have seen in the literature there are reports of it being pale green. How pale that green is I don’t know.
Q. This Court has heard on more than one occasion of MST tablets. They are used certainly for pain relief and certainly for those suffering from particularly painful illness?
A. Yes.
Q. Are you aware that MST tablets are green?
A. I think some of them can be green, yes.
Q. Are you aware of capsules known as MXL capsules, oral morphine, particularly high dosage, 120 milligram capsules?
A. I am not actually aware. I have never actually seen one of those preparations.
Q. Are you aware of their existence?
A. Yes.
Q. Are you aware that they are green?
A. I wasn’t, no.
Q. In respect of this finding of morphine in the stomach you postulated two scenarios, one was that it was the result of what you describe as enterohepatic recirculation?
A. Yes.
Q. But you also said you could not entirely exclude the possibility of it being residual from an orally administered dose of morphine?
A. That’s correct, yes.
Q. Can we in the first instance please deal with this procedure, that is the wrong word, this concept of enterohepatic recirculation?
A. Yes.
Q. Could you please explain to the Court what that procedure entails?
A. In part it is as blood goes round the body it goes to the liver and from the liver you have the gall bladder, inside the liver there is the gall bladder. Any blood that is circulating within the system can subsequently go into the bile that is contained in the gall bladder and subsequently back into the stomach. Alternatively you can get reabsorption of drug from blood vessels surrounding the stomach back into the—
THE SHORTHAND WRITER: Sorry, can you slow down a little please?
MISS DAVIES: If I were you, Mrs. Evans, I would start again. I think we are giving the shorthand writer quite a difficult time and I hold myself responsible.
MR. JUSTICE FORBES: Start that answer again if you would please, Mrs. Evans?
A. As the blood goes around the body and a drug has been absorbed into it, whether it be from the stomach itself, from intravenous administration, or an intramuscular administration or any other route, to have an effect it must go into the blood. Then the blood in circulating around the body calls into the liver and the liver has within it the gall bladder and the gall bladder contains bile. This bile can then subsequently have drug within it and bile feeds back into the stomach. There is, also there are vessels surrounding the stomach itself. These leak back into the stomach and thus put drug back into the stomach. Drug that may not ever have been in the stomach originally just as a result of circulation can end up in the stomach.
MISS DAVIES: So what you are saying is that for this process of enterohepatic recirculation to have taken place the drug in question has to move from the blood, it moves into the gall bladder, yes?
A. Yes, that is one route, yes.
Q. It concentrates in the gall bladder, yes?
A. Yes.
Q. And it then has to move from the gall bladder into the small intestine, yes?
A. The gall bladder can actually by means of the hepatic portal vein feed back into the stomach or into the small intestine.
Q. And then from the small intestine it can go back into the stomach?
A. Yes.
Q. Are you aware of the effect of morphine and the sphincter in the gall bladder?
A. No.
Q. You don’t know that one effect of morphine on that sphincter is to constrict it?
A. No I didn’t.
Q. If you would accept from me that that effect is one of constriction, that would slow up such a process, would it not?
A. Yes it would.
Q. If you cannot answer this next question because it is simply beyond your expertise please don’t hesitate to tell me. On this process of recirculation as you describe it, how long are we talking about?
A. I couldn’t accurately determine that. It is outside my field.
Q. In respect of the quantity that you found, 2 milligrams, that is a not insignificant quantity, is it?
A. It is not insignificant. It could amount to a therapeutic dose of a drug.
Q. Can I move on then please to Mrs. Lomas. Mrs. Lomas, by reason no doubt of the period between death and exhumation, her body was decomposed and in respect of the thigh there was extensive decomposition, is that correct?
A. Yes.
Q. Again this was one of these occasions where you found chemical evidence of the putrefactive process?
A. Yes.
Q. This was a case where you tested positive for opiates, benzodiazepine and what was found to be the chemical evidence of the putrefactive process?
A. Yes.
Q. You, as I understand it, did not attempt to identify the benzodiazepines which led to the positive testing, am I correct as to that?
A. That’s correct.
Q. Insofar as the other findings were concerned you mentioned that pholcodine had been prescribed. We know in fact it had been prescribed on the 16th May 1997 and Mrs. Lomas had died on the 29th May of that year so it had been prescribed in the month of her death?
A. Yes.
Q. As a matter of common sense, and I put it no higher Mrs. Evans, although you were working out the supply of pholcodine no-one in this Court knows to what extent and when Mrs. Lomas took the pholcodine tablets?
A. That’s correct, and it is also available over the counter as well.
Q. You are aware that pholcodine can break down?
A. Yes.
Q. And it can break down into morphine?
A. Under extreme conditions, yes.
Q. As a matter of fact morphine can, I beg your pardon, as a matter of fact pholcodine can break down totally into morphine?
A. Under very extreme conditions yes, but not under the conditions I would expect within the bodies.
Q. In the case of Mrs. Lomas your finding in the thigh muscle was 0.9 percent, yes – 0.9, I beg your pardon.
A. Yes.
Q. As a matter of fact you are unable to say whether that level represents in part or in whole any of the breakdown of pholcodine?
A. There may be a very small contribution from pholcodine. Testing that I have done as a result of this case, I have actually had samples that have been spiked up with pholcodine and have been allowed to putrefy for the last 12 months and in that 12 month period no detectable morphine has been detected under naturally occurring conditions. If we treat those samples with a concentrated acid then we can get conversion.
Q. Acid can be produced in the body, can’t it, when the body is in the ground?
A. It can, yes, same as with any decomposing tissues, and these tissues have been left to decompose.
Q. So therefore there would have been this agent present which could in whole or in part have broken down pholcodine to pure morphine?
A. I would not expect it to go entirely to morphine, I would expect to find some pholcodine.
Q. As a matter of fact the agent was present which could convert some of the pholcodine to morphine?
A. Acidic conditions do exist in these bodies, yes.
Q. As a matter of fact those acidic conditions could have broken down the morphine in whole or in part and converted the pholcodine into morphine?
A. I would expect in part. In my opinion I would not expect it to go to completion.
Q. If you accept in part that there could have been this conversion process, it follows doesn’t it that of that finding you have made of 0.9 you cannot say what part of that represents the breakdown of pholcodine to morphine?
A. I would say there could be some contribution to that from pholcodine, yes.
Q. But as a matter of fact you cannot quantify that contribution?
A. From the experiments I have done I would suggest it is a small part.
Q. But as a matter of scientific fact you cannot say of that 0.9 level what is represented by the break down of pholcodine to morphine?
A. That’s correct.
Q. The next lady please, Mrs. Quinn. This was a body described by Dr. Rutherford as being in a state of poor preservation. The disintegration of the soft tissues was most marked in the left thigh, skin, ankle and foot. As a matter of fact, Mrs. Evans, your sample came from the left thigh muscle?
A. Yes.
Q. And therefore the area identified by Dr. Rutherford as demonstrating the most marked disintegration?
A. Yes.
Q. Therefore we have decomposition probably at its most active in this particular part of Mrs. Quinn’s body?
A. With the exception that again I sampled the areas where there was still considerable reddening so therefore it was minimal.
Q. You say that, but one, that is only reddening to your eye isn’t it?
A. Yes.
Q. And you have accepted that in going in you are moving further into that area where bacteria are moving inside out?
A. I am moving deeper, I am not necessarily moving closer to the abdomen, but yes, the decomposition process is where they were present.
Q. They were more than present, the decomposition processes rendered this body in a state of poor preservation according to Dr. Rutherford?
A. Yes.
Q. Mrs. Quinn represents, together with Mrs. Grimshaw, the lowest of the levels that you found, 0.3 to 0.4?
A. Yes.
Q. And this is a body where the effects of decomposition appear certainly on the face of it to be at their highest?
A. Yes.
Q. You simply cannot say in that badly decomposed sample that you were doing your best to analyse what the state of that sample was at the time of death?
A. No.
Q. It follows, doesn’t it, that from the very low reading that you have obtained there, and I am saying low in the range that you have told the Court of, you simply cannot say what any such reading would have been at the time of death?
A. No.
Q. This was a lady who 11 months prior to her death had been prescribed co-codamol?
A. Yes.
Q. In respect of the next lady, Mrs. Turner we have dealt with when I was dealing specifically with the liver and I don’t need to take up your time or this Court’s time any further on that particular case. Can I move on then please to Mrs. Lilley. ere again was a body where there was extensive decomposition noted by Dr. Rutherford. This was where you found chemical evidence of the process of putrefaction, yes?
A. Yes.
Q. And by reason of such findings you said that the levels do not – I won’t pursue that. I am concerned I have not accurately recorded what you said. It was a case insofar as Dr. Rutherford was concerned where the liver was too degenerate for meaningful appraisal?
A. Yes.
Q. And there was obvious degradation apparent in the tissues?
A. Yes, even on my visual examination.
Q. Even on your visual examination?
A. Yes.
Q. And in the case of Mrs. Grimshaw again we have decomposition present?
A. Yes.
Q. And this again, like Mrs. Quinn, was the lowest of the readings produced by yourself, 0.3 to 0.4?
A. Yes.
MISS DAVIES: Mrs. Evans, would you allow me just one moment please. I have no further questions thank you.
Re-examined by MR. WRIGHT
Q. So far as you are concerned is there any problem in the reliability of the evidence that you have given as to the finding of morphine within the body by the fact that the sample has been obtained and analysed from the thigh?
A. No, morphine is definitely present in these samples.
Q. So far as the choice of the thigh muscle in order to perform your analysis in each of these 9 cases, was there a distinct preference or order of preference that you undertook?
A. Yes.
Q. And which, please, is the preferred site of sample in each of these cases?
A. Preferred site would still be the thigh muscle. It is a peripheral muscle.
Q. And in general please, so far as the body is concerned and the preference by way of sample site generally, what would be the preferred site?
A. In cases of exhumed material I would still say the thigh muscle.
Q. Is there anything in the literature that causes you to consider that that may be wrong?
A. No.
Q. In fact, is there anything in the literature that may confirm your opinion?
A. The reported levels in terms of stability, the reported stability suggests that thigh muscle is the one least susceptible to microbial invasion and therefore the best specimen of choice.
Q. Is there any dissent among this field of expertise?
A. Not that I have come across.
Q. Is there any dissent in the material that you have considered in relation to this enquiry?
A. Not that I am aware of.
Q. Has any report of any form been drawn to your attention that may seek you to cause to reconsider your view?
A. No.
Q. Is it so far as you are concerned appropriate to infer that the thigh was the third option?
A. The third option?
Q. The least favourable of the 3, blood, liver, thigh?
A. In an exhumed body, no, I wouldn’t say it was the third option. I would still say it would have been a sample of choice.
Q. And so what is the purpose in seeking to analyse liver and blood?
A. Just to show that there was additional support for its presence in the thigh muscle, that it was in the general circulation and in other areas of the body, and that what we were looking at was maybe an injection had been given into a thigh muscle after death and therefore this was just present there for no other reason.
Q. So how many different areas of the thigh did you then seek to obtain samples from?
A. 2.
Q. How deep within the thigh did you seek to obtain the sample?
A. Until I found areas of reddening. In most cases that was quite deep. We were looking at a few inches below the surface.
Q. A few inches below the surface?
A. Yes.
Q. Were you aware of the concept of postmortem redistribution in blood at the time that you performed these tests?
A. Yes I was.
Q. And therefore did the concept of postmortem redistribution in blood affect your preferred source of sample?
A. No.
Q. Why is that?
A. The only reason that affected the decision was that of the reports that are available concerning postmortem redistribution. These suggest that the femoral, which is the vessel in the leg, is the one least susceptible to change.
Q. Do continue?
A. Thus in deciding on a skeletal muscle to choose I chose the one that was nearest to a vessel that would give the representation if we were looking at a fresh autopsy.
Q. Does the concept of postmortem redistribution in blood effect the total level of morphine?
A. If we were looking at blood, yes.
Q. Does it affect the total level in the sample of thigh tissue?
A. Theoretically yes it could, because it depends on how reliable data is but as I am comparing like with like, I was comparing muscle to muscle, I take those to be minimal considerations.
Q. So far as the total level is concerned, is it possible by postmortem redistribution to increase the total level?
A. Only by—
Q. Sorry?
A. Only by way of concentration and in my opinion there was no significant concentration effects evident in these muscles.
Q. So consequently the converse of that is whether it may effect a decrease in the total level?
A. There is a possibility of a decrease, yes.
Q. So there may be a decrease from death but the increase is in the terms, the potential for increase is in the terms in which you have explained?
A. Yes.
Q. And that is of what extent?
A. That is a negligible consideration.
Q. So is the problem of postmortem redistribution a problem with the reliability of the findings of morphine or with an interpretation of the level found?
A. The problems are with the interpretation of the level found. Morphine was present.
Q. So far as the deep thigh is concerned and postmortem redistribution being by blood, yes?
A. Yes.
Q. Then in the deep thigh muscle itself, how approximate is that to the major blood vessels?
A. In all the reported literature on comparisons of muscle to blood they give an average of 1, ie that the blood is approximately equal to that in the tissues. The range goes from .4 to 3.3. But I didn’t seek to do a comparison to blood because of the problems of postmortem redistribution and the unreliability of data. I merely looked to compare thigh muscle tissue to other muscle tissue.
Q. It is put that by the process of decay you can get considerably higher levels in liver to muscle tissue?
A. Yes.
Q. And you would accept that?
A. Not just because of the decay, you can get higher liver levels than muscle tissue.
Q. Tell us why that is please?
A. The liver is effective a storage organ. Drugs can actually accumulate within the liver?
Q. Is the thigh muscle a storage organ?
A. It is not a storage organ for drugs.
Q. Is it really an organ?
A. No.
Q. You were asked to consider the report of Phelby, yes?
A. Yes.
Q. Soren Phelby. Morphine Concentrations in Blood and Organs in Cases of Fatal Poisoning?
A. Yes.
Q. Is that an article with which you are familiar?
A. Yes.
Q. It was put to you that that was anecdotal by way of study?
A. It is anecdotal in terms of these were people that died but they were not under controlled conditions, therefore they were reliant on information provided to them either by the police or witnesses to the death that the mode of death was from morphine.
Q. Does the literature also include the range indicating whether these deaths were in the morphine naïve or in the morphine user?
A. In the study by Phelby he suggests that most of them had some degree of addiction.
Q. And that the range incorporating that detail was one within which these individual deceased with which we are dealing fell?
A. Yes.
Q. And the lowest end of the scale, the end of the range was what please?
A. 0.1.
Q. And so in dealing with a figure of 0.3 as being the lowest here in the cases of Mrs. Grimshaw and Mrs. Quinn, what number fold increase in the level of morphine does that actually indicate?
A. Threefold.
Q. A threefold increase in the level?
A. Yes.
Q. Would it be fair to deal with that in terms of percentage as being a 300 percent increase?
A. Yes.
Q. In the actual level of morphine?
A. Yes.
Q. And this is in an anecdotal report of the deaths of intravenous morphine users?
A. Yes.
Q. Whilst you were asked about the anecdotal nature of that particular report, have there been any animal studies into this particular field?
A. There have but most of those have been on rats and they are not reliable results for a small animal.
Q. So far as the long-term stability of diamorphine or morphine in muscle tissue is concerned, have you yourself performed any control tests in that regard?
A. I have for the preceding 12 months had samples spiked not with diamorphine or morphine but with other drugs that could be considered potential drugs that morphine could be produce from, ie pholcodine, codeine, and in that 12 month period I have found no measurable morphine, just the parent drug. I have also spiked those same things with embalming fluid as well and I have still not detected any free morphine from those.
Q. Did you spike them with the embalming fluid of the type used in each of these individual cases?
A. Yes I did.
Q. In which the deceased were embalmed?
A. Samples that were submitted that were of the type used in some of these, yes.
Q. Any morphine?
A. No.
Q. Dealing with the pholcodine point and the conversion of pholcodine to morphine, you accept as a proposition that pholcodine may in certain circumstances be converted to morphine?
A. Yes.
Q. And converted in its entirety?
A. In laboratory conditions, yes.
Q. That is what I wanted to ask you about, laboratory conditions. Firstly, what does that involve?
A. It involves adding a strong acid, such as hydrochloric acid, at a very low pH to those samples and allowing them to stand in the presence of that acid for a period of time.
Q. Now hydrochloric acid, very strong acid, for a very long period of time?
A. Yes.
Q. You were asked specifically in relation to Ivy Lomas about the pholcodine point?
A. Yes.
Q. Firstly, does embalming fluid contain hydrochloric acid?
A. No.
Q. Secondly, was Ivy Lomas even embalmed?
A. From the records I have then, no.
Q. From our schedule, no. Therefore, so far as the presence of hydrochloric may be concerned, or an acid of similar strength, is there anything to indicate from your analysis of the tissue in the case of Ivy Lomas that there was present hydrochloric acid?
A. No.
Q. You say that pholcodine may be so converted over a lengthy period of time?
A. Yes.
Q. What sort of length of time are you talking about?
A. We are only talking about a few hours in the presence of that under laboratory conditions.
Q. In hydrochloric acid?
A. Yes.
Q. Insofar as acids produced by any putrefactive process post death, are there any acids produced by that process that are akin to hydrochloric acid?
A. Not within the putrefactive process. Hydrochloric is present in the stomach, so if that was to come into context then there is a possibility, but as the stomach does not directly contact the thigh muscle….
Q. It was a point I was going to investigate with you. Hydrochloric acid in the stomach, your sample was from the thigh?
A. Yes.
Q. Furthermore, so far as pholcodine is concerned what percentage, if you can deal with it in those terms, is the active ingredient of codeine, sorry morphine?
A. Of pholcodine.
Q. Yes?
A. Zero.
Q. How then does pholcodine convert to morphine?
A. It is by processes involving acidic breakdown.
Q. In your view how likely is the prospect of pholcodine converting entirely to morphine?
A. Extremely unlikely. In my experience you cannot actually get the tissues to degrade pholcodine to morphine.
Q. Why is that?
A. Because the acidic conditions developed during the decomposition are not strong enough to convert it.
Q. Did you find any pholcodine by way of parent drug?
A. No.
Q. As far as the levels that you found of total morphine within the tissue samples analysed by yourself, you said this, these are not the sort of levels you could get from an over the counter regime?
A. Yes.
Q. Could you explain what you mean by that please?
A. If someone was to purchase for instance kaolin and morphine or any of the over the counter preparations and take them as the dosage indicated on the bottles, then you could not achieve levels like this.
Q. I will return to that topic briefly when asking you about an analysis of the stomach content a little later, but dealing with analysis of the thigh tissue and the state of decomposition of the bodies, what please was the state of decomposition of the samples taken from the thigh of these 9 respective deceased?
A. There was some evidence of decomposition in the majority of them but the samples I actually took were the ones where there was reddening and the least amount of degradation, although there would be some degradation.
Q. Where does the decomposition manifest itself?
A. In the ones I examined the greatest amount of decomposition was closest to the skin.
Q. Your sample was, as you told us, that number of inches away from?
A. Yes.
Q. Having regard to the matters brought to your attention so far as decomposition is concerned and the analysis that you undertook upon the thigh muscle, thigh muscle that you obtained, have you any cause to reconsider your opinion?
A. No.
Q. Does anyone suggest that morphine occurs naturally as a decomposing product?
A. No.
Q. Have you considered the literature available in this case?
A. I have, yes.
Q. And have you considered various reports served for your consideration?
A. I have, yes.
Q. Is there anything that causes you to reconsider that particular expressed opinion?
A. No.
Q. Dehydration. On the tests that you performed a degree of dehydration in the organs was revealed?
A. In the heart and lung, yes, negligible in the muscle tissue.
Q. Negligible in muscle tissue?
A. Yes.
Q. Therefore, does that factor of dehydration cause you at all to review your opinion?
A. No.
Q. Or to reconsider it?
A. No.
Q. Does the concentration of morphine, total morphine, in the thigh tissue by dint of any dehydration, negligible or otherwise, does the fact of dehydration affect the concentration of total morphine?
A. If the tissue was dehydrated then yes, it would raise the level, but I found no evidence of dehydration.
Q. So you accept the principle?
A. Yes.
Q. And did you apply it in practice?
A. Yes.
Q. And are you therefore able to consider and reject the prospect of that having affected the calculation?
A. I did consider it in drawing my conclusions and I did reject it.
Q. Now you were also referred to the literature from the Journal of Forensic Sciences, a report by Robert Mann and others, Time Since Death and Decomposition of Human Body, Variables and Observations in Case and Experimental Field Studies?
A. Yes.
Q. And you were asked to consider paragraph 12 of that particular report at page 108?
A. Yes.
Q. And the effect of embalming?
A. Yes.
Q. Firstly, that particular paragraph and the report upon embalming, how many bodies were involved in that particular study?
A. It would appear one.
Q. Do we know anything about the circumstances in which the embalming took place?
A. No.
Q. Do we know how that embalming was undertaken?
A. No.
Q. Was the body of the deceased in that particular case buried in a coffin?
A. On the basis of what is here it would appear that it wasn’t.
Q. Was the body of the deceased in that case buried to any noticeable or considerable depth?
A. No, it says it was in a shallow depression.
Q. Is that particular anecdotal report so far as you are concerned of any assistance in the matters that were undertaken by you?
A. No.
Q. Or in the considerations that you have in giving your opinion?
A. No.
Q. Formaldehyde and embalming. Does morphine, forgive me, does formaldehyde have any component constituent chemical that is susceptible to conversion to morphine?
A. No.
Q. So far as the levels of total morphine ascertained by yourself as being present in the thigh muscle of each of the deceased is concerned, insofar as there may be any variable or any variation from the matters that have been drawn to your attention, could the total level at death have been higher?
A. Yes, it is a possibility that it was higher at the time of death than that I found during my analysis.
Q. Could the level have been lower?
A. I think it unlikely.
Q. Why is that?
A. Because if a drug is unstable it is going to breakdown, it is going to be lost, but there is no reports of spontaneous production of morphine in tissues so it is not being produced within the body, there was no measurable dehydration in these muscle tissues to suggest that we were getting a concentration effect. So in my opinion there is nothing to suggest that these levels may have been lower, though it is conceivable that they were higher.
Q. Muscle variability please. You are aware of the literature in relation to that particular concept?
A. Yes.
Q. And also the tests reported by, is it Professor Pounder?
A. Yes.
Q. Did he test for morphine when dealing with muscle variability?
A. No.
Q. So far as the first 4 cases are concerned, Grundy, Pomfret, Mellor, Melia, you were asked to consider the difference in levels present in the thigh?
A. Yes.
Q. What may explain the difference in levels?
A. It may be that different doses were administered, it may be that because the older bodies were showing the lower levels that, as I suggested, maybe the drug does become unstable after very prolonged periods and therefore you get a reduction.
Q. A reduction?
A. Yes.
Q. But not an increase?
A. No.
Q. You can go down but you cannot go up?
A. In my opinion, yes.
Q. Speaking of those that had been buried for longer of course, and looking at our schedule briefly, Mrs. Turner was 852 days, the longest?
A. Yes.
Q. Yet her reading in the thigh was 1.4 to 1.6?
A. Yes.
Q. How many fold is that increase from the level of 0.1 referred to in Phelby?
A. A 15 fold increase.
Q. 15 fold increase?
A. Yes.
Q. Is that 1,500 percent increase?
A. Yes.
Q. Nitrazepam please. I am going to turn, and I hope very briefly my Lord to the individual cases. Nitrazepam, Mrs. Grundy, sleeping tablet?
A. Yes.
Q. Morphine?
A. Not present within nitrazepam and wouldn’t break down to give morphine.
Q. Mrs. Pomfret, benzodiazepine, susceptible to conversion to morphine?
A. No.
Q. Lithium, susceptible to conversion to morphine?
A. No.
Q. Mrs. Melia, amoxicillin, susceptible to conversion to morphine?
A. No.
Q. Any of the tablets or the capsules that you were supplied with and asked about by my learned friend susceptible to conversion to morphine?
A. No.
Q. Stomach content analysis please of Mrs. Melia. Viscose liquid that resembled bile?
A. Yes.
Q. Did you find any tablets or particulates within that liquid?
A. No.
Q. Enterohepatic recirculation. From the material that you have considered in the case of Mrs. Melia is there anything that leads you to conclude that the residue, that the liquid found within the stomach and containing 2 milligrams of morphine, was the residue of morphine tablets, capsules or syrup?
A. I can’t exclude the possibility.
Q. Is there anything that has been brought to your attention by way of report or document that leads you that conclusion?
A. The only thing I can say is that I found nothing in the medical records to suggest that she was on anything morphine related.
Q. Furthermore, you say that the 2 milligrams is not insignificant, it could amount to a therapeutic dose of the drug?
A. Yes.
Q. That would be the 2 milligrams found in the stomach content?
A. Yes.
Q. Of Mrs. Melia?
A. Yes.
Q. Then what please of the 0.7 to 0.9 total morphine found in the thigh?
A. They are greatly in excess of what would be expected from therapy.
Q. If there are 2 milligrams in the stomach how does the total morphine get to the thigh?
A. Could be from another route of administration, from injection.
Q. Mrs. Lomas, I have dealt with, touched upon, the pholcodine point. Just one matter. We know that she was not embalmed in any event and the acidic conditions that are required you have dealt with so far as hydrochloric is concerned?
A. Yes.
Q. Are you also aware of any report by a Professor Forest?
A. I am aware of a number of reports by Professor Forest.
Q. And as to the alkaline or acidic state of any cadaver?
A. Yes.
Q. What please is the situation so far as the alkaline or acidic state of a cadaver is concerned?
A. In terms of Professor Forest’s reports I would prefer if I could actually relate to that report as opposed to doing it from memory.
Q. Whether I need to pursue it further, may I at 2.15. Otherwise that concludes the matters I would seek to raise by way of re-examination.
MR. JUSTICE FORBES: Subject to that then we will break off now, members of the jury, and resume again at 2.15. Mrs. Evans, you still remain giving your evidence until after the lunch break. If you would like to go with your usher, members of the jury.
Lunch adjournment
MR. JUSTICE FORBES: Yes, Mr. Wright.
MR. WRIGHT: I am sorry, forgive me, I did convey the message that it is not a point I wish to explore further. There is no re-examination of Mrs. Evans, I have no further questions thank you.
MR. JUSTICE FORBES: Thank you very much. Thank you, Mrs. Evans. You are free to go. Thank you very much.
MR. WRIGHT: Would you forgive me just for a moment whilst I just confirm something. May we now turn to computer evidence by the calling for cross-examination of Detective Sergeant Ashley. I acknowledge that it is interposed during what is a complex area, but there are reasons why it is not possible for Detective Sergeant Ashley, or indeed anyone representing the interests of the defendant so far as this field is concerned, to be both here at court on any other day.
MR. JUSTICE FORBES: Yes very well. Let Detective Sergeant Ashley be brought into court.
JOHN FREDERICK ASHLEY, recalled
MR. JUSTICE FORBES: You are still under oath you understand?
A. Yes my Lord.
MR. WRIGHT: Would you wait there, there may be some questions for you.
Cross-examined by MR. WINTER
Q. Detective Sergeant, before I ask you some questions might I just explain, my Lord, the device that has appeared in the right hand corner of the court, so that the witness understands what has happened and so that your Lordship and the members of the jury can follow. Detective Sergeant, what you see to your right is, as you will probably immediately recognise, a lap top computer. It is connected to a projector just to the side of his Lordship which is projecting upon that screen what you would ordinarily see appear on the screen of the computer. The screen of the computer is in fact blank and you will therefore be asked to look at the screen in due course rather than the screen of the computer. And the programme that has been loaded on that lap top is the programme and the patient histories that was seized by you, in other words copied from the surgery computer, in the way in which you described when you gave your evidence. Do you follow? So a copy of what you removed has been placed upon that computer and we now have access here to the same Microdoc programme?
A. So this is the record on the day that I seized it?
Q. That’s correct. Do you follow that?
A. Yes.
Q. Before I ask you to access that programme I would like to ask you one or two questions about the nature of Microdoc because you have given evidence both orally and the jury has heard a number of statements of yours read to them, wherein you describe the finding upon the computer in relation to the specific patients with which we are concerned, entries which appear to have been backdated?
A. Yes.
Q. Now the Microdoc programme is designed, is it not, specifically to enable that to take place?
A. The Microdot programme is designed as a computerised medical records data base.
Q. But intrinsic with it is an ability to make an entry at any time within a patient’s history details?
A. Yes.
Q. And it carries with it what is known as an audit trail whereby it records the time at which that particular entry was made?
A. That is attached to each record, yes.
Q. And that is an intrinsic feature, isn’t it, of the programme?
A. Yes.
Q. Details of how one does that and how one would view the audit trail are included within the manual to the programme?
A. Yes.
Q. So, for example, if one makes an addition, we will do this shortly, to a patient’s record, and dates that addition some years previously or sometime previously, let’s say a year previous to the time it is being entered, the entry itself becomes part of the patient history chronologically. In other words if you make it for the 10th December 1997 it would work its way into the patient’s history at that time?
A. Yes.
Q. And you would then by simple procedure be able to analyse the audit trail part of the programme in order to be able to establish when that entry was placed upon the computer?
A. Yes.
Q. Have you seen a copy of a report prepared by Mr. Jonathan Beck?
A. I would need to see the report. I have seen a report.
Q. I am just going to ask you one short question, I hope, about it. Did you also receive with that a rather large volume of printout patient codes?
A. Yes.
Q. Which was a print out of the total number of backdated entries for whatever patient that were recorded within that computer?
A. I believe that was what it was supposed to be, yes.
Q. Did you perform any checks on it?
A. No.
Q. Do you have any reason to believe other than, as Mr. Beck states, that that is a printout of every backdated entry on the computer?
A. No.
Q. It does not matter as to specifics but there are a very large number of those entries, aren’t there?
A. Yes.
Q. Probably in excess of 20,000?
A. Possibly yes.
Q. I am grateful to my learned friend, just over 19,000, 19,206. The programme has to be entered by way of a code?
A. Yes.
Q. And perhaps if you would turn to the computer now and assist us because do we see on the screen that the very first screen that one finds when one has logged into the Microdoc one is about to embark upon entering patient histories?
A. That is a screen, when the computer, the server, has been powered up that is the screen that, when it has gone through power up process you are faced with. You are not actually into the Microdoc system as yet, that is the menu that allows you to go into it.
Q. This is the menu to gain access and one can see the third entry Microdoc, so would you be kind enough to enter that. It tells us it is loading Microdoc and appears, there two spaces with the flashing cursor. That is where one needs to enter the code?
A. Yes.
Q. There was in fact, do you understand, in effect only one code used by all the staff in the surgery?
A. I believe so but that is not a matter of fact to me. I have not spoken to anybody about that.
Q. That is from your understanding, it is not something you have been able to understand from the computer itself?
A. No.
Q. That is agreed. I am very grateful. And I hope this will work, if you enter HFS ACP222?
A. The way I normally enter the system is by a super user pass word, not his way.
Q. There are two ways of gaining entry, that is the way the normal user would gain entry but there is a super user which is the word “Bowls?”
A. Yes.
Q. Whichever route you prefer. Having therefore entered Microdoc, entered the user code, the first page that you see is a page that states in the centre of it the date?
A. Today’s date as picked up from the computer.
Q. I am going to come back to this in a little more detail but the way that computers work is that they don’t have an understanding of what today’s actual date is, they are told by the user what the date is?
A. I can enter any time and date on there I wish. The date and the time we are seeing is actually picked up from the computer itself. So there is a record within the computer of what today’s time and date is now.
Q. But that has come from it having been entered into the computer at some earlier stage?
A. Probably at manufacturer.
Q. Quite possibly. But the computer will calculate today’s date from the date that has been entered into it either by the manufacturer or by some other person?
A. Yes.
Q. In other words, if the manufacturer entered the wrong date for some reason, we would not be seeing today’s date, we would be seeing a different date?
A. Correct.
Q. At the bottom of that it clearly states, does it not, an ability to change the date by using D, to change the time by using T, and once having done that to confirm that it is correct by pressing enter?
A. Yes.
Q. Would you for the moment confirm we are at the 10th November and move to the next page. The next page is the main menu?
A. Yes.
Q. For the particular part of the programme in Microdoc that would be of use to a doctor in a general medical practitioner’s surgery?
A. Yes.
Q. And one can see there a list of the various possibilities available. If one goes to M?
A. M.
Q. M, one sees Medical Summaries. Would you press that please. And comes up a refined menu so one is narrowing the field, is that correct?
A. Yes.
Q. And on that summary menu there are 4 choices on the left and a cohort histories choice on the right, but of the 4 one can see there is Histories, Medical, Summary, and then an entry for removing summary. Do you understand, don’t press this button because it takes a very long time to do it but do you understand if you were to press R you would remove a particular patient’s summary completely from the programme?
A. Yes. You would be required to input the patient’s registration number or identity and then you could remove that patient’s whole summary.
Q. Exactly. So that would be a way of going about removing someone completely from the practice, for example if they left the practice?
A. Yes.
Q. Could you, however, press M again please for medical summaries. I am sorry, I have gone wrong already, I knew this was going to happen. Could you press escape to go back and press H for Histories. We need the full histories. This is now inviting the user to enter a particular patient’s history and obtain access to that set of records?
A. The patient’s registration number, that is what it is waiting for.
Q. Would you please enter the registration number for Mrs. Pomfret which I shall tell you is number 31082. It immediately comes into her record and also flashes that she is deceased?
A. Yes.
Q. So would you please press escape to enter her full history. Then do we see access as you have described, and we have seen photocopies of these records in our bundle. We have entered the particular history of Bianka Pomfret?
A. It is. This is not the way that I normally enter by reference to my statements.
Q. I appreciate that but as a user following simple steps through the operation of the Microdoc programme this is a route to gain access to the summary?
A. Yes obviously, yes.
Q. It has highlighted, has it not, in fact for the 11th December a particular entry?
A. That will be the last entry, I presume, of the record, yes.
Q. If you press the arrow keys you can go up to select a particular entry so would you perhaps select the first one for the 10th December. In order to look in greater detail as to that entry one goes simply to Display, doesn’t one?
A. F6.
Q. Or F6 makes the same route. Just before you do that can I point out through you that at the top of the page just under where it has the patient number and Mrs. Bianka Pomfret there is a box under the heading “Patient history” which has various possibilities listed horizontally?
A. Yes.
Q. The first is Add, by which one would simply add an entry. The second is Display, by which one enters a specific entry in order to analyse it further. The third is Correct, if one wishes to make amendment to an entry. The fourth is Remove if one wished to remove a specific entry. Do you agree that here set out in very easily understandable terms intrinsic to the programme is the ability to amend, to add, to remove, to deal with as you see fit entries in that patient’s history?
A. What you are referring to there is a drop down menu system. We can actually go to that menu and display all the options that appear under each of those words. So yes, basically what you have said is correct. There may be other functionality available within that drop down menu.
Q. Precisely. That is the route in to remove an item, for example?
A. That is one way, yes, definitely.
Q. Would you kindly enter the display part of that. I think that is F6. So by pressing that button one then gets the full entry in this case for the 10th December?
A. The Display History Details yes, in that central box.
Q. And would you confirm, I will show you the manual if you need to but it may be that you know this in any event, all of this is set out in the user manual?
A. Yes.
Q. If the user wanted to know when that particular entry had been made one can see that it is dated on the left the 10th December 1997, but if one wished to discover when that particular entry had been made, it is a very simple step isn’t it?
A. Yes.
Q. One simply goes into Info that we see on the second box down under Display History Details?
A. Yes.
Q. So would you perhaps do that please. You pressed, did you press “I” for Info?
A. Yes I did.
Q. And we can see that was created, as we see there, on the 10th December at 15.52. So do you agree with this suggestion, not only is it very straightforward to analyse a particular entry, it is equally straightforward and an intrinsic part of the programme to discover when that entry was made?
A. Yes.
Q. Would you please return to the main history menu by pressing escape. I am grateful. Could you please be shown the first volume of the jury’s bundle and might I invite your Lordship and the members of the jury’s attention to the first bundle. Under the flag for Mrs. Pomfret, maybe you have got the second, may I invite attention under the divider for Mrs. Pomfret to page 721.
MR. JUSTICE FORBES: Can I have the reference again?
MR. WINTER: Page 721 which is towards the rear of the divider labelled “Pomfret.” Before we come to refresh our memory of this and another related document, can I just ask you this. You said when you gave your evidence to my learned friends who prosecute that it was quite possible in your view that the user of the computer would not know that a particular entry was being timed. Can you remember? It is a long time ago. Can you remember saying that?
A. Yes.
Q. Well, that might be the case but it would only be the case of a user who had not (a) read the manual and (b) looked in Info as we just did on the computer?
A. The manual being, I would estimate, in excess of 300 pages.
Q. It is a very very lengthy, I agree?
A. Not the easiest thing to read.
Q. And not the easiest thing to read, but in the paragraph that tells you how to make an entry, that very paragraph goes on to explain how you can examine through the Info button when that entry was in fact created?
A. Yes.
Q. So you might not read the entire 300 pages but if you looked in order to discover how to make an entry, all of this information is included at that part of the manual?
A. It exists in the manual.
Q. And as we have just seen even a mildly curious user would be able to access that information?
A. If you looked in that section you would find the answer, yes.
Q. Can I just refresh the memory of the ladies and gentlemen of the jury. At page 721, do you have that there?
A. I do.
Q. We have an entry dated 28th April 1997 with an end date of the 10th December and if you look at the previous page that was created on the 28th April but removed on the 10th December. It is page 721 and 720?
A. Yes.
Q. If you turn now to page 691?
A. Yes.
Q. We see an entry again for the 28th April 1997, this time with no end date, which over the page is said to have been created on the 10th December 1997?
A. Yes.
Q. And what is said by the prosecution is that page 721 was removed on the 10th December and in its place page 691 was put on the machine?
A. Yes.
Q. If you look please at the times involved, so at page 691 the time of that entry if you move over the page is 15.59 and 8 seconds on the 10th December?
A. Yes.
Q. That is precisely the same time, is it not?
A. Yes.
Q. At which the entry for page 721 was removed?
A. Yes.
Q. You find that at page 720, 15.59 and 8 seconds. What happens is this, if a correction of any form is made to an entry the computer regards the process that has taken place as the removal of one entry and the replacement of it by a new entry?
A. Yes, I am aware of that.
Q. Do you agree with that?
A. Yes I am aware of it, I agree with it.
Q. In effect what is happening is that an entry is simply replacing another entry?
A. In this case the entry on the 28th of the 4th existed within the record and on the 10th December at 15.59.08 that entry was altered. The original entry was placed into the removed section of the data base and it was replaced with the entry that was created at that time on the 10th of the 12th.
Q. Exactly. The point being this, that even if you were to go in and correct a spelling mistake, for example, the computer regards the entry which was corrected as having been removed and a new entry as having been put in its place?
A. That is correct.
Q. The previous entry, as you say, goes into a list of entries that have been removed from the computer and can be accessed as we will see in due course?
A. Yes.
Q. And that explains, doesn’t it, why on the occasions when the date and time are precisely the same, what has happened is that some form of amendment has taken place to an entry?
A. Yes, definitely.
Q. For example, the top of the page you see the word filters?
A. This page.
Q. Yes, forgive me, top of the screen?
A. Yes.
Q. You see the entry for filters immediately under Histories in the top box?
A. Yes.
Q. Would you be kind enough to enter Filters. By going into that entry do you see the 4th entry down you have got, Read, Code, Date, Range, Context, Show, Remove. If you access that you go into a list of entries that have been removed. So do you agree again with this proposition, that it is an intrinsic function of this computer that when an entry is amended the previous entry is there stored in a list of entries that have been at some point either removed or amended?
A. Yes.
Q. And we can see there the relevant entry, it is the second one down, “28th April 1997, Seen in GP’s surgery.” That is the entry which we saw at page 721 as being amended in some way and therefore the original entry has simply been placed in a list of entries that have been amended or removed? You agree with that?
A. Yes, I agree.
Q. Yes. Would you return please to the main menue. Escape I believe. Sorry, I didn’t mean you to do that. Can you enter Mrs. Pomfret’s number again, 31082. Right. Can you now show us what happens please when one wants to remove an entry. So one accesses Remove. The entry which has been previously highlighted is there, and it is thereby possible simply by pressing the Remove word on the left of that box – do you want to do that please? Have you done that?
A. Yes. I presume you want to go to the Filters menu.
Q. Now we need to go to the Filters to see that it has been removed and you can see there the entry which you have just removed. So in pretty much two very simple steps you can remove any entry of your choice?
A. Yes.
Q. Could you now please press the Add function.
A. You can’t from this screen. You have to go back to the Main History.
Q. I think if you go back to Filters. It is 31082. Now can we go to Add please. So if somebody has, for example, come into the surgery and it is necessary to make an entry, by pressing Add this box appears. And this is the box that prints out in the form that we have seen for example at page 721, when it is completed, the printout, the information is coming from this box?
A. The information probably is coming from there. This isn’t any function I have ever done with this data base. I wasn’t required to add records to it.
Q. Can we just have a look at it please. Now the first that is highlighted is Term keys. Do you understand within the programme there are a very large number of short cut routes into making an entry?
A. Yes. We can list them at this point if you wish to.
Q. Would you just do that so that we can see. There are various headings under which you might want to have a look. So would you go to one of those, it does not matter which. And you have got Administrations at the bottom. Can you then display a list of possibilities under Administration Detail?
A. I am not sure.
Q. It is easier if I do it this way, type in the word “seen,”
S-E-E-N, and enter that. Right. Different form?
A. I can’t understand why that is.
Q. Try if you would 9N1?
A. Do you want me to try something else?
Q. Try 9N1. Sorry, forgive me, you have to press F9 first to show the Read codes.
MR. JUSTICE FORBES: Have you read the manual?
MR. WINTER: I have my Lord?
A. It is complex.
Q. It is very complex. Just F9. Yes. Can I just summarise it in this way?
A. Please do.
Q. There are an awful lot of Term keys like 9N1?
A. I believe you.
Q. Which will come out at the end of the day as saying things like “Seen in own home,” “Seen in surgery,” “At hospital?”
A. Abbreviations would be a better word.
Q. Which are short cuts into placing for example “Seen in GP’s surgery” into the computer?
A. Time saving lists.
Q. Precisely. The Comment, which is the next box down, is a box which must be completed by the user. It is very faint at the moment. Can you go down to it. Don’t worry about entering it?
A. You have got to put something in the Code field.
Q. Precisely, but under comment the user simply makes whatever comment is appropriate and there he has to make an entry if he wants anything to be recorded?
A. I don’t know.
Q. Right. The next entry down is Date and again any particular date can be entered by the user?
A. Yes.
Q. The next entry down is End Date and again the user can place a date there, for example if someone has had an illness for a specific period of time but has come to an end, that particular part of the entry can be concluded by putting a date in at that point. Review is simply you might want to ask the computer to pull up this patient in the future if she needs to come back, for example, for a 3 monthly check, is that right?
A. I don’t know.
Q. You don’t know. But Where, is the point I am getting to, you told the jury when you gave evidence earlier that Where related to where the entry had been made. Do you recall giving that evidence?
A. No.
Q. What do you understand the Where to mean?
A. I understand that by default in this data base, as we see there, every record will have “Here (this practice)” unless anything else is entered there instead of.
Q. Precisely. The default entry means this, does it not, that unless you enter something specifically for that entry the computer automatically records “Here (this practice)?”
A. Yes.
Q. So where we see for example on page 721 the words “Here (this practice),” that may specifically have been entered by the user or the computer may have entered it as its default entry because no other entry was put there?
A. I would suspect the computer has done it because it is identical to what we see on the screen now.
Q. Yes. It is therefore impossible from an analysis of the computer to know whether that entry was deliberately and specifically placed in or is simply there as a result of the functioning of the machine?
A. I think it is more important to look at the difference between the two entries as opposed to the timings perhaps. We know that the entry on the 28th April existed in the data base and on the 10th of the 12th was amended. So if we examine the contents of the 10th of the 12th as amended, we will see the alterations from the 28th April’s original record.
Q. Precisely. I am merely using this page as an example. You cannot say, can you, from this machine whether the entry “Here (this practice)” was specifically and deliberately entered in at the time the entry was made?
A. No, I suspect that is put in automatically by the system.
Q. Precisely. Now finally I hope, this, if I wanted to make an entry for the 10th December, for example today I want to make an entry for the 10th December, but I do not want the computer to record that I have made it today on the 10th November, there is a very simple way of going about that, isn’t there?
A. I don’t think so, no. Try and enlighten me.
Q. Would you go back please to the front of the computer where we saw the time page?
MR. JUSTICE FORBES: Do I understand this is a way of avoiding the audit trail?
MR. WINTER: Yes.
MR. JUSTICE FORBES: Thank you.
MR. WINTER: Would you enter your code please. Would you apply Change the Date, so press D, and put the date the 10th December 1997. Leave the day of the week, it doesn’t matter. Now apply please to change the time. Would you please type in 15.59. Would you confirm that please? Enter again the medical Summaries, the Histories, and the code 31082. Would you please apply now to Add an entry. Now press F9 please for the Read code and put in please 6144, just an example of a particular code. I promise you I wasn’t aware that was coming. Can you put a Comment now please, perhaps you would write “Test” and the date 10th December 1997. And save that as an added entry. So you press Add. Would you please return to the previous page. Do you see there that we have the entry you have just made for the 10th highlighted for the 10th December 1997 with the details and your word Test?
A. Yes.
Q. Now please analyse to see when the computer thinks that entry was made. The computer thinks that entry was made on the 10th December 1997. Do we understand therefore by that, by the simple changing of the internal computer clock at the outset of the programme, one can completely alter the effective operation of the computer?
A. This data base was held on a separate server. The actual data base manipulation would take place at work stations throughout the surgery.
Q. Although it has a central server?
A. It could be done in the manner in which we have done it, but obviously all entries made thereafter would be incorrect. One would have to come back out of the data base and reenter the correct time for all the other entries then to pick up the right time. Quite in overall a lengthy operation.
Q. In order to put it back to where it was before one simply changes the date at the outset?
A. One comes back to the screen we were in, changes it back to the correct, and then, yes.
Q. If one wanted to create computerised records that purported to show that they were created at the time and date which is entered upon the patient’s history, that is, is it not, a very simple way of doing it?
A. That is a way to do it deceptively, yes.
MR. WINTER: Thank you very much.
Re-examined by MR. WRIGHT
Q. Using that particular illustration, what would happen thereafter whenever you then made a further entry?
A. Without going back and changing the time and date all further entries would follow on chronologically. That clock is now ticking. It is probably, at the moment it is 16.03 so any further additions would also be incorrect.
Q. So the clock on the computer would think that it is now the 10th December 1997 and it is 42 seconds past 4 o’clock?
A. Yes.
Q. And so if then anybody within the practice was then to use the computer?
A. From any of the other work stations.
Q. From any other work station and enter in any details in relation to any other patient?
A. Yes.
Q. Then the date and time that would be displayed upon that entry would be what?
A. Incorrect by the number of days we are amending it or whoever is amending it.
Q. And just to remind us, how many work stations were there please in this surgery?
A. Excluding the actual server there were 5 work stations.
Q. And including the server?
A. 6.
Q. What about if there are 3 successive late entries, each of different dates for example. How could that be done?
A. In an individual record?
Q. Yes?
A. It means that by that methodology one would have to go and change the clock 3 times.
Q. And then put it back to the correct time?
A. Yes.
Q. In other words, once you have put in 3 entries for December 97, September 97 or April 98, you would then have to return to the correct time being the 10th November 1999?
A. Yes.
Q. The user manual that you were asked about, the Microdoc programme user manual, does that set out how you are able to perform that exercise?
A. I would think it probably does. I can’t say specifically. I would think the user is probably explained the relevance of that screen where you are able to change the actual time and date. I am sure it is included in the software to provide the facilities to put it to the correct time and date should your computer’s clock be faulty, which does occur. I am sure it is not designed to be put in there to allow users to use it for this subterfuge.
Q. Furthermore, if we look please at the Bianka Pomfret entries for a moment, and using the schedule as we have it please ladies and gentlemen in our volume 1.
MR. JUSTICE FORBES: The A3 schedule?
MR. WRIGHT: The A3 schedule my Lord, yes thank you. And using the examples that were given to us earlier, so we look at the deletion and creation of the entry dated 28th April of 1997, yes?
A. Yes.
Q. You were able to ascertain from an interrogation of the record information held within the computer the time of the creation of that entry and the deletion of the previous entry?
A. Yes.
Q. At 15.59.08?
A. Yes.
Q. We know that the body was found at 5 pm, that is 17.00 on that day. Now insofar as those entries are concerned is the time of the 15.59.08 a manual creation by the process that we have been having described to us?
A. I can’t say whether it was or it wasn’t. It could have been. The data base can be used in that fashion.
Q. So either the time that was ticking on the clock was the time that day, namely 2 hours, an hour and a half, no, an hour before the discovery of the body, or it was a time deliberately selected by manual entry in the way that we have just undertaken here?
A. One of the two, yes.
Q. And after that the computer itself was then reset?
A. Yes.
Q. Does the user manual explain also that if the date is changed then the audit trail is also necessarily changed?
A. I don’t know. I think the computer manual is so lengthy, computer manuals are generally not anything that anybody particularly likes to read, particularly if one is not overly computer literate. And it may well be that even a regular user of this system would not be aware of all the facilities of the software and all that was contained in the manual.
Q. That with respect does not answer my question. It is more a comment really, isn’t it?
A. It is.
Q. What I am seeking to explore with you is whether or not, whilst the facility may be explained within the manual, is the consequence also likely to be explained within the manual so far as the audit trail is concerned?
A. I would doubt it is because that is not what it is intended to be used for.
MR. WRIGHT: I have no further questions.
MR. JUSTICE FORBES: Thank you very much Detective Sergeant Ashley, you are free to go.
MR. WRIGHT: My Lord, before return to t, oxicology is that a convenient moment?
MR. JUSTICE FORBES: Yes.
MR. WRIGHT: At that stage we can remove the screen and remove the various pieces of equipment.
MR. JUSTICE FORBES: That sounds like a very good idea.
MR. WRIGHT: And resume transmission, as it were.
MR. JUSTICE FORBES: Members of the jury, if you would like to go with your usher for ten minutes we will dismantle all this technology.
(Short adjournment)
ROBIN ADRIAN BRAITHWAITE, sworn
Examined by MR. WRIGHT
Q. What is your full name please?
A. Robin Adrian Braithwaite.
Q. And what is your occupation?
A. I am a Consultant in Toxicology and Head of the Regional Laboratory for Toxicology which is based at City Hospital in Birmingham.
Q. Are you a Consultant Clinical Scientist in Toxicologist?
A. Yes.
Q. And Director of the Regional Laboratory for Toxicology and Super Regional Assay Service?
A. Yes I am.
Q. Honorary Senior Clinical Lecturer in the Division of Medical Sciences at the University of Birmingham?
A. Yes.
Q. Senior Research Fellow at the Institute of Occupational and Environmental Health?
A. Yes I am.
Q. Were you also trained in analytical, clinical and forensic toxicology at Guy’s Hospital, London?
A. Yes.
Q. Do you have over 25 years’ experience in this field?
A. Yes I do.
Q. And have you held a variety of appointments involving medical toxicology, clinical pharmacology, clinical research both here and abroad?
A. Yes I have.
Q. And is an area of particular interest analytical and forensic toxicology and drug and substance abuse?
A. Yes it is.
Q. Have you also published a large number of papers concerning various aspects of human pharmacology and toxicology?
A. Yes I have.
Q. Is that something in the region of 160 such papers?
A. Yes I have.
Q. Senior adviser to the World Health Organisation?
A. Yes I am.
Q. Amongst other particular positions that you hold?
A. Yes that’s correct, yes.
Q. I want to ask you please firstly, and this is page 1187 GH, 1 is the starting point, my Lord.
MR. JUSTICE FORBES: I have it thank you.
MR. WRIGHT: I want to ask you please firstly general matters concerning the metabolism of diamorphine and morphine. This is little 4 within that section. GH(iv).
MR. JUSTICE FORBES: Thank you.
MR. WRIGHT: We heard described by Professor McQuay the arterial road map of the body?
A. Yes.
Q. The motorway of the body?
A. Yes.
Q. And using that as the description of the blood the system together with the approaches to the brain being the big city?
A. Yes.
Q. Is that a particular analogy that you would accept?
A. Yes, I think it is attractive analogy to use.
Q. Diamorphine may enter the blood circulation by a variety of routes, may it not?
A. Yes, that’s correct, either by intravenous injection into a vein or injection into a muscle or by mouth, a variety of routes.
Q. Once it has entered into the body thereafter is diamorphine then rapidly converted?
A. Yes it is. It is rapidly converted to another product which has a long name of 6 monoacetyl morphine, or 6 MAM for short, which is then further converted relatively rapidly to morphine.
Q. That was the halfway stage that Professor McQuay spoke of?
A. That’s correct.
Q. And the time over which such a metabolism or conversion takes place?
A. Yes. Diamorphine will convert to 6 monoacetyl morphine within minutes and this intermediate product is relatively unstable and further converts to morphine in a period of maybe half an hour to an hour.
Q. Now we have heard reference to in this case on a number of occasions both what is called free and total morphine. I don’t propose to spend a great deal of time dealing with the distinction but could you just explain to us please what happens to morphine within the body as to how it is metabolised or conjugated?
A. Right. Morphine continues to be metabolised in the body so morphine is converted to what is called glucuronide metabolite and this largely takes place in the liver and—
Q. Just pause for a moment. Glucuronide metabolite?
A. Yes.
Q. In other words that is morphine and its metabolites?
A. Yes, well the glucuronide is the metabolite so morphine is converted to another product which we know as morphine glucuronide. There are two different, slightly different forms of this but this is the next product which we call glucuronide metabolite. When we talk about total morphine generally this means morphine plus that morphine which is present as its glucuronide metabolite. So it is the total amount of drug that is present that is either as morphine or its metabolite.
Q. So would it be fair to put it in these terms, it is the total amount of morphine together with that part of the morphine that has been metabolised?
A. That’s correct, yes.
Q. What then please is free morphine?
A. Morphine, sorry, free morphine is the unmetabolised morphine so it is actually morphine itself. The molecule has not undergone that change so it is morphine which, as I say, is termed free morphine. It is the unmetabolised part of morphine before it is converted into this glucuronide metabolite.
Q. So putting it another way, squaring the circle, free plus metabolite?
A. Equals total.
Q. Equals total?
A. Yes.
Q. You heard the evidence of Professor McQuay so far as the administration and the effect of various quantities of diamorphine and morphine administered either intramuscularly or intravenously?
A. Yes I did.
Q. Do you seek to dissent in any way from that?
A. No, I would fully support what he said.
Q. May I turn please to codeine, because we have had reference to codeine in this case. What is codeine?
A. Codeine is the sort of 3-methyl derivative of morphine so it is a chemical derivative of morphine that is commonly used in many over the counter preparations combined with paracetamol or aspirin. It is a well known over the counter pain-killer.
Q. But is combined with other chemical substances?
A. Very often. I mean, it can be used on its own but it is most commonly in medicines which are bought over the counter in a pharmacy. It is often combined with either paracetamol or codeine or it may be in other medicines where it is combined with other products.
Q. Is codeine known to convert to morphine in the body?
A. Yes, it is well known that codeine or part of the codeine will be metabolised in the body to produce morphine.
Q. But does it metabolise entirely into morphine?
A. No, it will go through other routes to produce other products, so part of its route is to produce morphine.
Q. And so as part of it produces morphine would you expect to find if codeine were administered and part converts into morphine, the presence of other substances?
A. Yes.
Q. Within the tissue?
A. One would expect to find codeine and a smaller quantity of morphine.
Q. Pholcodine please?
A. Is a morphine like drug, sorry, it is a derivative of morphine that is used in cough medicines, so it is a chemical derivative of morphine that is widely used in a lot of over the counter preparations, particularly for treatment of coughs.
Q. When you say derivative, is it thought to convert to morphine in the body?
A. No, there is no good evidence to show that it is converted. It seems to be remarkably resistant to conversion to morphine in the body.
Q. So is the high water mark that it may convert?
A. It may convert.
Q. Is there any evidence of that?
A. There is no real evidence that it does actually convert to any significant degree.
Q. Dealing with conversion to any significant degree, what would you expect to find if there had been some conversion of pholcodine to morphine?
A. One would expect maybe to find a small trace quantity of morphine but a much larger quantity of the parent drug pholcodine also present.
Q. And why is that?
A. Because very little, from what we know of pholcodine, virtually none of it is converted to morphine. One would expect because it is really metabolised so little in the body that you would largely find unchanged drug pholcodine there in samples of tissue and other tissues and fluids.
Q. I am going to turn to page 1187 F X my Lord.
JUSTICE FORBES: It occurs to me, Mr. Wright, that the members of the jury may have a little difficulty from time to time understanding the names of the various drugs to which reference is made. I merely cast out the thought. Is that so, members of the jury, or are you following the names of these drugs? Very well, I was going to suggest perhaps just a list of the names.
MR. WRIGHT: We could provide a glossary of those terms.
MR. JUSTICE FORBES: Would that help?
MISS DAVIES: Certainly, my Lord.
MR. JUSTICE FORBES: Members of the jury, we will take steps to provide you with a glossary of the names of the drugs. Yes, Mr. Wright.
MR. WRIGHT: Did you receive a bundle of documents in July of this year concerning the forensic investigations carried out by Julie Evans?
A. Yes I did.
Q. And also by Dr. Rutherford?
A. Yes I did.
Q. And also various reports prepared by Dr. Grenville?
A. Yes I did.
Q. We also are aware of documentation concerning a Dr. Karch, the gentleman seated in the middle of the middle row here, from the United States, and also from Julie Evans?
A. Yes I did.
Q. And as a consequence of considering those particular documents did you then review these findings?
A. Yes I did.
Q. And did you prepare a report to that effect?
A. Yes I did.
Q. And from that report was a statement prepared?
A. Yes it was.
Q. And would you wish to refer to that statement whilst giving your evidence?
A. I can do, yes.
MR. JUSTICE FORBES: There is no objection so yes, Dr. Braithwaite, you may refer to it.
A. Thank you.
MR. WRIGHT: We are at page FY. It may assist if you turn, as it were, towards the ladies and gentlemen of the jury, Dr. Braithwaite, and use that part of witness box. Do you have it?
A. Yes. I will just find it.
Q. That should have been done for you by me. I am sorry about that. You have consider the conclusions drawn by Julie Evans and also Dr. Rutherford concerning the cause of death in each of those 9 cases?
A. Yes.
Q. And do you dissent at all from the considered opinion of those two individuals?
A. No, I would support what they have said.
Q. Does there appear to be any other rational or feasible explanation?
A. Not that I know of.
Q. On the material that you have considered does there appear to be any other rational or feasible explanation?
A. No, I am not aware of any.
Q. You have been seated in court whilst Julie Evans gave her evidence?
A. Yes.
Q. Matters were raised by way of cross-examination?
A. No, I would still agree with what I have written in the report and what other experts have said.
MR. JUSTICE FORBES: Can I just be sure, rational or feasible explanation for what, Mr. Wright?
MR. WRIGHT: For the death of the 9 individuals in this case?
A. Yes they, that they probably took or were administered a substantial dose of morphine or diamorphine shortly before death, which is what I wrote.
MR. JUSTICE FORBES: Thank you.
MR. WRIGHT: So far as dosage may be concerned, would it be fair to say this, it is not possible to seek to extrapolate any precise form of measurement from the figures that have been obtained and considered?
A. Yes, it is unwise to do that.
Q. But is there any general conclusion that you are able to give so far as dose is concerned from the figures that you have been made aware of?
A. From the postmortem tissue measurements one would surmise that a substantial dose of morphine or diamorphine had been given or had been taken by the deceased.
Q. And insofar as the range, the bracket that we are aware of the Phelby paper?
A. Yes.
Q. Of deaths from morphine poisoning?
A. Yes.
Q. Are you satisfied that these particular deaths fall within that bracket?
A. Yes, they fall within that range reported in that particular paper.
Q. And so in considering the nature and terms of the dose, what is your opinion so far as that is concerned?
A. Again a large dose, potentially fatal dose of morphine or diamorphine.
Q. Have you considered the method by which the samples were extracted by Julie Evans?
A. Yes. I have seen copy of her report and the methods which she has used and they are acceptable.
Q. And insofar as the, paragraph 7 my Lord.
MR. JUSTICE FORBES: Yes.
MR. WRIGHT: So far as the use of the thigh tissue is concerned, what is your considered opinion as to the use of that particular tissue above any other?
A. I think one would regard it as a recommended specimen to take in many cases and that it has many advantages over other specimen types such as liver or even blood.
Q. Does the fact of the taking of simply thigh tissue, albeit from two separate areas, two separate sites?
A. Yes.
Q. In any way cause you to express any concern as to the reliability of the findings?
A. Well, I think samples were taken from separate sites and showed remarkably good agreement, so one draws the conclusion that what was measured was measured reproducibly and an accurate estimate of the amount of drug in that sample.
Q. Paragraph 11 of the report.
MR. JUSTICE FORBES: Thank you.
MR. WRIGHT: Postmortem redistribution. Is this a concept with which you are familiar?
A. Yes indeed.
Q. Is also a concept of the problems that are attached to it, also matters with which you are familiar?
A. Yes.
Q. Is there in any way any restriction or confinement to the problems of postmortem redistribution that you are aware of?
A. In what respect?
Q. Do they apply equally on blood as they may do to thigh tissue across the gamut of specimens that may be obtained from the deceased?
A. They are a far greater problem with specimens of blood and this is widely discussed in the scientific and forensic literature about those problems. Problems can occur with other tissues but probably muscle tissue, to some extent the postmortem redistribution changes one has mentioned, are probably minimised or least effected in the case of muscle tissue in comparison certainly with blood specimens.
Q. How does the absence of any good in-house data or research on muscle with which to compare these case findings affect your conclusions?
A. It does not affect them substantially. I think one would, it is very difficult to do such studies. Perhaps in a perfect world one might have the opportunity to do those sorts of studies but it does not affect the conclusions which I draw in terms of the significance of those values.
Q. So far as those values are concerned, acknowledging the limitations that may apply to them or attach to them, how do you view the calculations themselves and the figures obtained in relation to thigh muscle?
A. In what respect? The value, the magnitude of the values?
Q. Yes?
A. They are substantial, they are significant toxicologically and one would associate them with, as has been done in the Phelby set of data and other data sets, that they are consistent with the administration of a substantial dose of morphine or diamorphine and not inconsistent with death.
Q. We heard some evidence of the stomach content of Mrs. Turner?
A. Yes.
Q. And a therapeutic dose of morphine?
A. Yes.
Q. 2 milligrams. How do these compare at all with a normal therapeutic dose of morphine?
A. Probably on the low side. I mean 2 milligrams perhaps as compared with a therapeutic dose of morphine maybe of 5 milligrams to 10 milligrams.
Q. How do the figures by way of thigh tissue in relation to the deceased compare?
A. That the values from the thigh measurements would indicate a substantially greater dose than that.
Q. You considered the evidence of dehydration?
A. Yes, yes.
Q. In the various organs with which we have been concerned?
A. Yes.
Q. And you have listened and considered the matters raised this morning?
A. Yes.
Q. Do they cause you any concern?
A. No, I don’t think they are a substantial factor.
Q. Stability of morphine in postmortem material, that too is something that has been reviewed?
A. Yes.
Q. In the evidence thus far?
A. Yes.
Q. And was that also reviewed by you?
A. Yes. There is perhaps limitations on the amount of data available for thigh tissue. There is data available on blood and other materials, and broadly it appears to be relatively stable in postmortem material.
Q. So far as total morphine is concerned is there any observation you would wish to make on that particular topic?
A. As regards total morphine it would seem to be quite stable.
MR. WRIGHT: Thank you. Would you wait there.
Cross-examined by MISS DAVIES
Q. Dr. Braithwaite, your experience, and if I may say so looking at your statement your considerable experience, is in the field of toxicology?
A. It is, yes.
Q. And you have held a number of positions in that field at specialist centres?
A. Yes.
Q. In the course of this case it is clear from your statement that you were asked to look at the reports of Dr. Rutherford, the pathologist?
A. Yes.
Q. And you appear to have been asked to consider those reports. Would you hold yourself out as an expert in the field of pathologist?
A. Not forensic pathologist, no. I was aware of the reports and tried to take from them the major conclusions.
Q. Yes, and that is in effect what you were doing?
A. Yes.
Q. Please don’t think for one moment I am seeking to minimise your expertise in your specialist field, but you were relying on the conclusions of another specialist in another field?
A. Yes.
Q. And for reasons I am sure everybody in this court will understand you did not seek to challenge those conclusions, his experience being wholly different to your own?
A. Absolutely.
Q. As no doubt he would defer to your conclusions in the field of toxicology?
A. Yes.
Q. So far as Dr. Rutherford is concerned you relied on his conclusions in coming to the views you have expressed to the Court today?
A. Yes.
Q. Can I please turn not at great length to your own field, that of toxicology. The greatest, I beg your pardon, one of the major difficulties of dealing with levels in muscle tissue is that there is no good scientific data to assist the interpretation of such levels?
A. I think it is very limited, it is limited should I say.
Q. By all means, limited. It is ground I went over this morning, I am not going to go through it at length now. The fact is that there are no controlled scientific studies, the best literature that can be produced is anecdotal?
A. Not necessarily anecdotal. I think in all of toxicology, particularly forensic toxicology, it is almost impossible to do controlled studies by the very nature of the subject.
Q. Indeed?
A. One perhaps can only do control studies in animal studies.
Q. And therefore insofar as there is any attempt to interpret the findings in this case with anything in published literature, I think you have used on one occasion the word “consistent,” on another in your statement you have used the phrase “broadly comparable?”
A. Yes.
Q. That really is as far as one can go?
A. Yes.
Q. The other difficulty is this, that by reason of the period between death and exhumation in all of these cases, and by reason of the processes which would have continued in each of the 9 bodies, although there is a level that has been subsequently analysed by Mrs. Evans, one cannot say that level accurately reflects the level of the drug at the date of death?
A. No. I wouldn’t wish to state that it is inaccurate. It is an index of.
Q. It is an index of. And can I please deal just with one other separate point. You have raised the issue of dehydration, namely the loss of water content. You have heard me no doubt deal at some length this morning with the issue of concentration of the mass?
A. Yes.
Q. Would you accept the proposition that during any process of decomposition there is a concentration of mass which is due not simply just to loss of water but, for example, to the low volatile compounds and other factors?
A. There may be loss of some volatile compounds but the actual concentration of the drug is perhaps not changed. If the water contents is broadly the same, one is still measuring the amount of drug in one gram of material. It is still one gram of material that one is taking.
Q. But the real difficulty is one does not know at the date of sampling what that one gram of material represented at the date of death?
A. There is some, there is likely to be change due to putrefaction within that tissue and, as you say, it may not be exactly the same gram of material, but it is again a representative amount of material—
Q. It is a, I do beg your pardon?
A. …that one is comparing with.
Q. It is a representative sample but as a matter of fact the person carrying out that analysis does not know if that sample represents the same weight as at the date of death?
A. I think the biggest problem is the loss of water and dehydration rather than loss of other materials.
Q. There is the loss of other materials as well isn’t there?
A. I think that is not quite so well documented as loss of water which would be the major factor that one would perhaps be concerned with.
Q. Can I please deal with something that arose this morning which you touched on briefly in your evidence, namely the finding of morphine in the stomach of one of the ladies, Mrs. Melia, where something in the order of 2 milligrams was found?
A. Yes.
Q. Two propositions were put forward. One is it was the result of enterohepatic recirculation?
A. Yes.
Q. Could you explain that please?
A. This is where a drug and metabolites is excreted in the bile from the liver and enters the small intestine. Then it can be converted by microorganisms in the gut, so in the case of the morphine metabolites that might release some free morphine which then can be reabsorbed back into the body. So it is a sort of recirculation, recycling process.
Q. Are you able to say over what period of time such a process would take?
A. Maybe over some hours.
Q. And that is what we are talking about, a period of some hours?
A. Yes.
Q. And it would be a period of some hours in a living person?
A. Yes, yes.
Q. So that in order for the two milligrams of morphine to be subsequently found in the stomach of Mrs. Melia, for that process of recirculation to have taken place there would have had to have been a period of some hours in life during which that morphine could have been recirculated for it to result in being in the stomach?
A. It would also depend on the validity of that stomach sample and whether it is contaminated in some way or, you know, within the body.
Q. But if one explanation, and in fairness to Mrs. Evans she allowed for two, if one interpretation is the presence of the morphine in the stomach is enterohepatic recirculation, that has to take account of morphine in the body in life for some hours?
A. I wouldn’t want to put a very precise time scale on it. I am saying it is some hours.
Q. Indeed. The point I was seeking to make is we are dealing with hours as opposed to minutes?
A. Yes.
Q. Dr. Braithwaite, as you were giving your evidence I was handed a tone which is entitled, The Disposition of Toxic Drugs and Chemicals in Man. It may be a tone well known to yourself and it is to do with the point on pholcodine and the breaking down into morphine?
A. Yes.
Q. I have not had an opportunity to give you a copy of it, not at least because the evidence you have given is not in your report. I wonder in those circumstances it is probably much easier if I hand the book to you for one simple passage in it. I apologise to yourself and the members of the jury, it wouldn’t be the way I would normally do it?
A. Thank you very much.
Q. If I can hand this out on a limited basis. It is a short point. Is the book known to you?
A. Oh, yes indeed. It is probably the very latest edition. I haven’t actually seen it yet.
Q. And if we turn to page 705 of it we find the part that deals with pholcodine, yes?
A. Yes indeed.
Q. It deals with the occurrence and usage, blood concentrations and page 706 at the beginning of the second paragraph deals with metabolism and excretion and there are various diagrams which replicate diagrams you have produced for the Court?
A. Yes.
Q. It would seem, would it not, that that certainly contemplates the breaking down or conjugation of pholcodine into morphine?
A. Yes, it does, it shows the structure of morphine down at the bottom left-hand side, yes.
Q. And the book to which I have referred you, it is very much one of the recognised books in the particular field of toxicology?
A. Yes. I mean, it is very much a review book and so the author takes, reviews work from all sorts of sources, so the original work might have been done by the somebody else, not the editor of the book himself. So I am not sure without reading it in more detail who he is citing there as the author of this metabolic plan.
Q. Dr. Braithwaite, I have literally shown it to you. If you want any more time to look at it—
A. No, no, it is fine.
MISS DAVIES: That being the case I have no further questions thank you.
Re-examined by MR. WRIGHT
Q. Does it necessarily mean when dealing with the stomach contents, this was Mrs. Melia?
A. Yes.
Q. And the two milligrams of morphine found within the liquid within the stomach, does it necessarily mean that the patient was alive for that period of time, a couple of hours?
A. No, I wouldn’t want one to be categorical about that. I think it is very difficult to be precise.
Q. And this is considering the concept enterohepatic recirculation?
A. Yes.
Q. Is that the only route by which the morphine may actually have been eventually distributed into the stomach?
A. No, it might have diffused from the blood.
Q. And—
A. And been trapped in that sort of fluid in the stomach.
Q. So it may have diffused from the blood. Would that involve also the problems or the problem area of postmortem redistribution?
A. It is part and parcel of that problem.
Q. So the quantity found within the stomach could be quantitatively identified through a process postmortem as opposed to premortem?
A. Yes.
Q. In other words it could have occurred after death rather than before it?
A. Either, yes.
Q. Could it also be in the stomach from contact with the liver?
A. Yes. Again part of postmortem diffusion.
Q. So we have leakage from blood vessels, postmortem redistribution from the liver?
A. Yes.
Q. As well as enterohepatic recirculation?
A. All those potentially.
Q. All of the above really?
A. Yes.
Q. So is it possible say precisely how this morphine within the stomach may actually have arisen?
A. In honesty no.
Q. In terms of quantity is it of significance?
A. It is a small quantity.
Q. You were asked a few points on the factor of dehydration. Does that particular factor and the matters that have been raised cause you to review in any way your stated considered opinion?
A. Not at all.
Q. As to the cause of death in each of those cases?
A. No.
MR. WRIGHT: I have no further questions.
MR. JUSTICE FORBES: Thank you, Dr. Braithwaite. You are free to go. Thank you very much.
MR. WRIGHT: I can’t now remember just precisely how many breaks we have had this afternoon. It has been one of those days I am afraid. The next witness I propose it call is Dr. Karch. It is a little different by topic although still essentially toxicological, but there are also clinical findings to be dealt with. Might we have a few moments just to stretch our legs?
MR. JUSTICE FORBES: Of course you may. Members of the jury, we will break off for a short while whilst Mr. Wright regroups and then resume again as soon as he is ready. I imagine 5 minutes.
MR. WRIGHT: No more than that.
In the absence of the jury
MR. JUSTICE FORBES: Yes I gather you want….
MISS DAVIES: Thank you for giving me time to address you. Tomorrow the prosecution propose to recall Dr. Rutherford for cross-examination.
MR. JUSTICE FORBES: Yes.
MISS DAVIES: As, my Lord, you know my learned friend Mr. Winter and I have effectively split the cases factually between us. I am conscious this is a somewhat unusual course but insofar as individual cases are concerning cross-examination of Dr. Rutherford, would you permit us to each deal with our individual cases each so that I would, for example, deal with those cases where I have cross-examined.
MR. JUSTICE FORBES: Of course.
MISS DAVIES: Thank you very much indeed.
MR. JUSTICE FORBES: Whatever is the way which most assists you in the conduct of the defence entirely meets with my approval.
MISS DAVIES: Thank you very much. Can I also say this, I would also be seeking your leave to do exactly the same thing with Dr. Grenville.
MR. JUSTICE FORBES: You need not ask me again.
MR. WRIGHT: May I raise one matter in the absence of the jury, that in the examination-in-chief of Dr. Braithwaite I elicited, in fact it had not sunk in with me at the time I elicited it, I had a discussion with my learned friend Miss Davies about it, I elicited a response from Dr. Braithwaite as to the administration of a substantial dose of morphine.
MR. JUSTICE FORBES: Yes.
MR. WRIGHT: Which he then went on to remark was shortly before death.
MR. JUSTICE FORBES: Did he?
MR. WRIGHT: Well, there we are. It is not our case that that is asserted by the Crown. It is a matter that there was discussion on and we have considered the reports of experts that have been served upon us. We have been steadfast in our approach to the calculations in this case and the use merely of total morphine as opposed to any ratio between free and total, and we do not in any way seek to elicit evidence as to rapidity of death. That remark, of course, is entirely on the point of rapidity of death. It is not the way the Crown put their case. It was elicited by way of a question to which the response itself was not anticipated would incorporate that particular phrase and I thought I had better raise it at this stage so that in due course your Lordship in summing up the case, when you will remind them of the evidence of Dr. Braithwaite, that particular factor is not a factor in this case the Crown seek to rely upon.
MR. JUSTICE FORBES: Thank you for drawing it to my attention so that I should not repeat the error in the course of the summing up. Do you require me to take any other action?
MR. WRIGHT: No. We thought it preferable to deal with it in open court because the press also have interest in the evidence as it has been elicited in this case. But may I say, for the avoidance of any doubt, that that particular feature is not a feature of this case that the Crown in any way seek to rely upon. There is clear authority upon the point from the experts that rapidity is a most unreliable topic and is not one upon which there ought to be any faith at all.
MR. JUSTICE FORBES: By rapidity you mean the speed with which or the duration of the time interval between the administration of the substantial dose of diamorphine by whatever means and ensuing death?
MR. WRIGHT: Yes, by any calculation from the figures so far as the total morphine within the thigh is concerned one cannot – we have the evidence of Professor McQuay as to the effects of the administration of morphine, that is the Crown’s case, and as to the on-set of any stupor, any sleep, any sleepiness on the part of the patient and thereafter death, but what we cannot do is seek to extrapolate from the figures that in any particular case there was from the figures alone such a rapid death.
MR. JUSTICE FORBES: Yes, I understand. Thank you for drawing it to my attention. I shall take appropriate steps to ensure I make no reference to it myself. Are you content that the matter should be left on that basis?
MISS DAVIES: My Lord, yes.
MR. JUSTICE FORBES: Very well. Thank you very much.
MR. JUSTICE FORBES: Let the jury come back.
MR. WRIGHT: Would your Lordship permit one other matter? Would your Lordship consider going one stage further and directing there be no reporting of that particular facet of the evidence of Dr. Braithwaite.
MR. JUSTICE FORBES: Pursuant to what power, exhortation to the press?
MR. WRIGHT: It would have to be exhortation to the press because I don’t consider that section 4 of the Contempt of Court Act would cover the situation.
MR. JUSTICE FORBES: I am sure the press have heard what you have said. They know what I am going to do or rather what I am not going to do in the course of my summing up with regard to this particular part of Dr. Braithwaite’s answer to a question and I am sure that they will be very co-operative and make no reference to it in any report of today’s proc, eedings which they intend to publish. And I would simply ask all representatives of the press to oblige me and oblige the process of the proper conduct of this trial by co-operating in that regard.
MR. WRIGHT: Thank you.
Members of the jury returned
STEVEN BERNARD KARCH, sworn
Examined by MR. WRIGHT
Q. My Lord, this witness’s evidence is to be found at page 1187 GI which is volume 2 of 2 of the expert evidence.
MR. JUSTICE FORBES: Thank you.
MR. WRIGHT: What is your full name please?
A. Stephen Bernard Karch.
Q. Dr. Karch, what are your qualifications please?
A. I have an MD from Tulane University.
Q. And are you then a Doctor of Medicine?
A. I am a Doctor of Medicine, yes.
Q. In the United States?
A. In the United States.
Q. Do you have other further qualifications?
A. I received my Bachelors degree in Philosophy from Brown University in Providence, Rhode Island. I did graduate work in cell biology at Stamford University. I was a fellow in neuropathology at the London hospital in London. I was a resident in Neurology at Stanford University. I did an internship in general medicine at Kaiser Foundation in Oakland, California and worked for 7 years in the cardiac pathology Laboratory at Stanford University doing resuscitation research and research on the effects of drugs on the heart.
Q. Are you also the author of a considerable number of publications?
A. Yes
Q. Including publications on drug abuse?
A. Primarily on drug abuse.
Q. Are you also involved in funded investigations, including the position of investigator in the World Health Organisation in a collaborative project for sudden cardiac death?
A. Yes. I just came here from the organisational meeting. We will be starting an international project to see if we can determine risk factors from analysis of hearts of individuals who died suddenly.
Q. And do your publications also include the pathology of drug abuse?
A. Yes.
Q. Have you prepared a report in this particular case concerning the deaths of the 9 deceased exhumed in relation to this enquiry?
A. Yes.
Q. And have you also considered the post mortem reports of Dr. Rutherford?
A. Yes.
Q. The laboratory reports of Mrs. Evans?
A. Yes.
Q. Also the report of Dr. Braithwaite?
A. Yes.
Q. And of Dr. Grenville?
A. Yes.
Q. And have you also considered the report of a consultant toxicologist from whom we will hear in due course Dr. Sachs?
A. Yes I have.
Q. Dr. Hans Sachs?
A. Yes.
Q. Have you also considered a number of reports from other experts in the field concerned with this particular enquiry?
A. Yes. I received a packet of reports from experts for the defence.
Q. Have you examined any of the microscopic sections of any of the specimens from the deceased?
A. No, I have not had that opportunity.
Q. But have you considered the records of those particular histological findings?
A. Yes. My conclusions are based on Dr. Rutherford’s interpretations of the slides.
Q. I want to ask you this please, the very bottom of page GJ my Lord. In your opinion are the anatomic findings elicited by Dr. Rutherford, taken together with the findings of Julie Evans and of Professor Sachs, in your opinion sufficient to explain the deaths of the 9 deceased in question?
A. Yes, I believe they are.
Q. Have you also considered various matters drawn to your attention by way of the reports submitted to you from the defence?
A. Yes I have.
Q. Have you taken into account any abnormality as identified at postmortem examination in the hearts of any of the deceased?
A. Indeed yes.
Q. And considered whether they were sufficient to cause sudden cardiac death at any time?
A. Yes.
MR. JUSTICE FORBES: Dr. Karch, would you be assisted by referring to your report whilst giving evidence?
A. Yes sir, my Lord.
MR. JUSTICE FORBES: Have you any objection?
MISS DAVIES: No.
MR. JUSTICE FORBES: Very well, you may.
MR. WRIGHT: May I ask then please a general point so far as any abnormality of the heart is concerned. What in your opinion please is the effect of the administration of morphine to an individual suffering such a defect?
A. Well, there are a number of different effects exerted by morphine and it would be very difficult at this stage to say which effect exerted, which property of the morphine exerted the greatest effect, but morphine does two things that would exacerbate the sort of heart disease that we see in several of these individuals. The first thing that happens is that, and some of you may have had experience with seeing drug addicts, seeing train spotting, that drug addicts, particularly heroin addicts, often have scratches and it is not because of bad hygiene but it is because when you inject heroin that releases histamine and histamine causes the skin to itch and addicts are often itchy and have scratches. One of the other things that happens when the histamine is released is that it can affect the heart beats and it can also dilate blood vessels. People who have a histamine reaction get red faced and that reflects dilation of blood vessels throughout the body. If the blood vessels in the body dilate, less blood goes back to the heart and if there is less blood going back to the heart that means that less blood is available to go through the partial obstructions that were present in a number of these patients.
Q. So please how would be administration of a significant dose of morphine, diamorphine, affect an individual with any, with a heart condition?
A. Even without a heart condition we know from studies, controlled studies in humans at surgery, that their blood pressure would likely go down, histamine levels would go up, blood pressure would go down. If blood pressure goes down then the heart is not profused. Not enough blood going to the heart muscle means the heart muscle becomes irritable and may fail either electrically, in other words have an arrythmia, cardiac arrest, or may fail pump wise, in other words not pump adequately or both.
Q. You see the lady with her eyes closed here trying to keep pace with what you are saying. If you could show down a little. I am the one that gets the look that tells me that you are going too fast. Any other effect so far as the administration of morphine, diamorphine is concerned? We have dealt with the effect on the heart or on the blood vessels please, any other area, any other topic?
A. Well, there is a very big one and that is that morphine given to individuals who are not tolerant will stop them from breathing and cause respiratory arrest and subsequently death. In this particular case we are very fortunate because we have hair to look at and hair is an indicator, as we have only known for the last year, of the degree of drug use. And in the cases of the individuals here analysis of their hair shows very low levels based on Dr. Sachs’s analysis, shows very low levels of heroin. In fact the levels are comparable to the levels that are seen in people that die of heroin overdose and this is information that only was published last year in Lancet.
Q. If I can just stop you for a moment, Dr. Sachs will be called in due course to give evidence of the hair findings, but insofar as your own opinion is concerned have you taken into account the hair findings of Dr. Sachs?
A. The hair.
Q. Professor Sachs?
A. Professor, the findings of Professor Sachs in my mind are extremely important because they establish drug naïvety.
Q. In whose cases?
A. Well, one case had a level of 11 nanograms.
Q. I am not going to ask you about precise figures of each of them but so far as each of these deceased are concerned have you considered the question as to whether these individuals may or may not have been morphine naïve?
A. Yes, and I think in every single case they were. One of the individuals had somewhat more morphine in the hair than all the others but compared to known heroin addicts the levels were generally very very low.
Q. Is there an explanation for that, an innocent explanation for it?
A. No, there is no innocent explanation, except they had not taken morphine in the past.
Q. They had not taken morphine in the past?
A. No.
Q. Final general topic before turning to rather more specific findings. Any diagnosis of a stroke in the deaths here, for example in the case of Mrs. Quinn and Mrs. Grimshaw as entered on the death certificate? Can you help us please as to what the effect may be of the administration of a significant dose of morphine upon—
A. There are two kinds of strokes that people can have, one is a haemorrhagic stroke where there is bleeding into the brain and that is almost always associated with the either malformation you are born with or high blood pressure. Morphine would not raise the blood pressure so would not be associated with a haemorrhagic stroke. It seems extremely unlikely that could ever be the case. On the other hand, someone who is elderly and has atherosclerosis, furring up if you will, of the blood vessels in the brain, who has a large dose of morphine but sufficient to drop their blood pressure, might well sustain a stroke.
Q. So I would just like to ask about cause and effect really. Is the administration of morphine then necessarily connected if there were a stroke to such a stroke?
A. It might be connected to an infarction, a non-haemorrhagic stroke, but not to haemorrhagic stroke.
Q. Hydration within the organs, dehydration within the organs. You have considered evidence that has been elicited on that particular topic?
A. Yes.
Q. Do you seek in any way to disagree with the expressed opinion of Julie Evans and Dr. Braithwaite?
A. No.
Q. Do you consider that the total morphine concentration measured in each of these cases would be significantly altered by the degree of dehydration?
A. The total amount measured would be affected by the degree of hydration.
Q. To what extent?
A. Well, if dehydration were present the levels would go up but there is no evidence of dehydration, or only negligible changes.
Q. So far as the morphine levels found in the hair samples of the deceased, of which we can ask Professor Sachs in due course, do you find those levels at all an unexpected finding?
A. No. This is not a very well studied field, or as well studied as we would like it to be, but we do know that drugs end up in hair via several different routes. One way is through the little follicle that attaches the hair to your scalp but another way is from sebum and sweat secreted from your scalp. And the low levels seen here could be consistent with sweat and sebum containing drug because morphine appears very rapidly in the sweat and could have accumulated between the time the drug was given and the time the patient died. The other possibility that also exists, particularly in the one patient who has a slightly higher level—
MISS DAVIES: My Lord, I have great unease about this evidence because the primary evidence is not before the Court.
MR. JUSTICE FORBES: Sorry, I didn’t quite hear.
MISS DAVIES: I have an unease about this witness commenting on evidence when the primary evidence is not before the Court and has not yet been subject to any scrutiny.
MR. JUSTICE FORBES: How do we deal with that? There is a point there but on the other hand…
MR. WRIGHT: There is, but there ought to be, in my respectful submission, no bar to this witness giving evidence, considered as expert evidence, having regard to the reports that he has read in the case and the matters that are to be elicited by way of evidence. The mere fact that Professor Sachs has not given evidence in advance of this witness does not make his evidence on the topic inadmissible. But may I put it a different way, I don’t propose to explore it at any—
MR. JUSTICE FORBES: You are perfectly correct and in the ordinary way if I were sitting as a judge alone I would hear the evidence de bene esse and look at it again in the light of the way in which the later evidence develops, but I can’t have that luxury at the moment, so is there a way you can deal with this without asking Dr. Karch to develop his evidence too extensively on the basis of what he has read in a report of a witness who has not yet given evidence?
MR. WRIGHT: Yes.
MR. JUSTICE FORBES: If this causes any difficulty I will be sympathetic to you recalling Dr. Karch after Professor Sachs has given his evidence to give further evidence about it.
MR. WRIGHT: Thank you. There may be logistical difficulties in this regard, I think he is next headed to Sydney amongst other places, but I think it can be resolved by discussion between us as opposed to by ruling or by at this stage taking the matter any further.
MR. JUSTICE FORBES: Would you like opportunity to consider it overnight?
MR. WRIGHT: Please?
MR. JUSTICE FORBES: Does that meet with your approval, Miss Davies?
MISS DAVIES: My Lord, yes.
MR. JUSTICE FORBES: Members of the jury we will break off now and resume again at 10.30 tomorrow morning. Can I just check with you that you find the morning and afternoon, mid morning and mid afternoon breaks of assistance to you in concentrating on the evidence? I see you nodding. You don’t find it disruptive to your ability to follow the evidence in this case. Very well.
Members of the jury retired
MR. JUSTICE FORBES: Dr. Karch, I am sure I don’t have to tell you this but I must warn you that while you are still giving your evidence you must not discuss any aspect of this case with anybody at all without my permission do you understand?
A. Yes.
MR. JUSTICE FORBES: Very well. 10.30 tomorrow morning.
[COMMENT1]
354 folios
94
http://www.the-shipman-inquiry.org.uk/trialday.asp?Day=21
http://www.the-shipman-inquiry.org.uk
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Harold Shipman
| Harold Shipman | |
|---|---|
 Harold Shipman |
|
| Background information | |
| Birth name: | Harold Frederick Shipman |
| Born: | 14 January 1946(1946-01-14) Nottingham, Nottinghamshire, England |
| Died: | 13 January 2004 (aged 57) HM Prison Wakefield, West Yorkshire, England |
| Cause of death: | Suicide by hanging |
| Killings | |
| Number of victims: | 250+ |
| Span of killings: | 1975 – 1998 |
| Country: | England, United Kingdom |
| Date apprehended: | 7 September 1998 |
Harold Frederick “Fred” Shipman[1] (14 January 1946 – 13 January 2004) was a British convicted serial killer and former doctor. He is one of the most prolific known serial killers in history with 218 murders being positively ascribed to him, although the real number may be twice that.
On 31 January 2000, a jury found Shipman guilty of 15 murders. He was sentenced to life imprisonment and the judge recommended that he never be released. The whole life tariff was confirmed by the Home Secretary a little over two years later.
After his trial, the Shipman Inquiry, chaired by Dame Janet Smith, decided there was enough evidence to suggest Shipman had probably killed about 250 people, of whom 218 could be positively identified. About 80% of his victims were women. His youngest victim was Peter Lewis , a 41-year-old man.[2] Much of Britain’s legal structure concerning health care and medicine was reviewed and modified as a direct and indirect result of Shipman’s crimes, especially after the findings of the Shipman Inquiry, which began on 1 September 2000 and lasted almost two years. Shipman is the only British doctor found guilty of murdering his patients.[3]
Shipman died on 13 January 2004, after hanging himself in his cell at Wakefield Prison in West Yorkshire.
Early life and career
Shipman was born in Nottingham, Nottinghamshire, the son of Vera and Harold Shipman, who was a council lorry driver.[4] His working class parents were devout Methodists.[4] Shipman was particularly close to his mother, who died during his teenage years.[4][5] Shipman graduated from Leeds School of Medicine in 1970, and started work at Pontefract General Infirmary in Pontefract, West Riding of Yorkshire. In 1974, he took his first position as a general practitioner (GP) in Todmorden, West Yorkshire. In 1975 he was caught forging prescriptions of pethidine for his own use. He was fined £600, and briefly attended a drug rehabilitation clinic in York. After a brief spell as medical officer for Hatfield College, Durham, and temporary work for the National Coal Board, he became a GP at the Donneybrook Medical Centre in Hyde, Cheshire, in 1977.
Shipman continued working as a GP in Hyde throughout the 1980s and founded his own surgery on Market Street in 1993, becoming a respected member of the community. In 1983, he was interviewed on the Granada television documentary World in Action on how the mentally ill should be treated in the community.[6]
Detection
In March 1998, Dr. Linda Reynolds of the Brooke Surgery in Hyde—prompted by Deborah Massey from Frank Massey and Son’s funeral parlour—expressed concerns to John Pollard, the coroner for the South Manchester District, about the high death rate among Shipman’s patients. In particular, she was concerned about the large number of cremation forms for elderly women that he had needed countersigned. She claimed Shipman was, either through negligence or intent, killing his patients.
The matter was brought to the attention of the police, who were unable to find sufficient evidence to bring charges; The Shipman Inquiry later blamed the police for assigning inexperienced officers to the case. Between 17 April 1998, when the police abandoned the investigation, and Shipman’s eventual arrest, he killed three more people.[7][8] His last victim was Kathleen Grundy, a former Mayor of Hyde, who was found dead at her home on 24 June 1998. Shipman was the last person to see her alive, and later signed her death certificate, recording “old age” as cause of death.
Grundy’s daughter, lawyer Angela Woodruff, became concerned when solicitor Brian Burgess informed her that a will had been made, apparently by her mother (although there were doubts about its authenticity). The will excluded her and her children, but left £386,000 to Shipman. Burgess told Woodruff to report it, and went to the police, who began an investigation. Grundy’s body was exhumed, and when examined found to contain traces of diamorphine (heroin), often used for pain control in terminal cancer patients. Shipman was arrested on 7 September 1998, and was found to own a typewriter of the type used to make the forged will.[9]
The police then investigated other deaths Shipman had certified, and created a list of 15 specimen cases to investigate. They discovered a pattern of his administering lethal overdoses of diamorphine, signing patients’ death certificates, and then forging medical records indicating they had been in poor health.[10]
Prescription For Murder, a book by journalist Brian Masters, reports two theories on why Shipman forged the will. One is that he wanted to be caught because his life had got out of control, the other that he planned to retire at fifty-five and leave the country.
Trial and imprisonment
Shipman’s trial, presided over by Mr Justice Forbes, began on 5 October 1999. Shipman was charged with the murders of Marie West, Irene Turner, Lizzie Adams, Jean Lilley, Ivy Lomas, Muriel Grimshaw, Marie Quinn, Kathleen Wagstaff, Bianka Pomfret, Norah Nuttall, Pamela Hillier, Maureen Ward, Winifred Mellor, Joan Melia, and Kathleen Grundy, all of whom had died between 1995 and 1998.
On 31 January 2000, after six days of deliberation, the jury found Shipman guilty of killing 15 patients by lethal injections of diamorphine, and forging the will of Kathleen Grundy. The trial judge sentenced him to 15 consecutive life sentences and recommended that he never be released. Shipman also received four years for forging the will. Two years later, Home Secretary David Blunkett confirmed the judge’s recommendation that Shipman never be released, just months before British government ministers lost their power to set minimum terms for prisoners.
In February 2002, the General Medical Council formally struck Shipman off their register.
Shipman consistently denied his guilt, disputing the scientific evidence against him. He never made any statements about his actions. His defence tried, but failed, to have the count of murder of Mrs Grundy, where a clear motive was alleged, tried separately from the others, where no obvious motive was apparent.
Although many other cases could have been brought to court, the authorities concluded it would be hard to have a fair trial, in view of the enormous publicity surrounding the original trial. Also, given the sentences from the first trial, a further trial was unnecessary. The Shipman Inquiry concluded Shipman was probably responsible for about 250 deaths.[11] The Shipman Inquiry also suggested that he liked to use drugs recreationally.[12]
Despite the prosecutions of Dr John Bodkin Adams in 1957, Dr Leonard Arthur in 1981, and Dr Thomas Lodwig in 1990 (amongst others),[13] Shipman is the only doctor in British legal history to be found guilty of killing patients.[14] According to historian Pamela Cullen, Adams had also been a serial killer—potentially killing up to 165 of his patients between 1946 and 1956—but as he “was found not guilty, there was no impetus to examine the flaws in the system until the Shipman case. Had these issues been addressed earlier, it might have been more difficult for Shipman to commit his crimes.”[15] H. G. Kinnell, writing in the British Medical Journal, also speculates that Adams “possibly provided the role model for Shipman”.[16]
Death
Shipman committed suicide by hanging in his cell at Wakefield Prison at 6:20 am on 13 January 2004, on the eve of his 58th birthday, and was pronounced dead at 8:10 am. A Prison Service statement indicated that Shipman had hanged himself from the window bars of his cell using bed sheets.[17] Some British tabloids expressed joy at his suicide and encouraged other serial killers to follow his example; The Sun ran a celebratory front page headline, “Ship Ship hooray!”[18]
Some of the victims’ families, however, said they felt cheated,[19] as his suicide meant they would never have the satisfaction of Shipman’s confession, and answers as to why he committed his crimes. The then Home Secretary David Blunkett noted that celebration was tempting, saying: “You wake up and you receive a call telling you Shipman has topped himself and you think, is it too early to open a bottle? And then you discover that everybody’s very upset that he’s done it.”[20]
Despite The Sun’s celebration of Shipman’s suicide, his death divided national newspapers, with the Daily Mirror branding him a “cold coward” and condemning the Prison Service for allowing his suicide to happen. The Independent, on the other hand, called for the inquiry into Shipman’s suicide to look more widely at the state of Britain’s prisons as well as the welfare of inmates.[21]
Shipman’s motive for suicide was never established, although he had reportedly told his probation officer that he was considering suicide so that his widow could receive a National Health Service (NHS) pension and lump sum, even though he had been stripped of his own pension.[22] His wife received a full NHS pension, which she would not have been entitled to if he had died after the age of 60.[23] FBI “profiler” John Douglas asserted that serial killers are usually obsessed with manipulation and control, and killing themselves in police custody, or committing “suicide by cop“, can be a final act of control.[24]
Shortly after Shipman’s death, Sir David Ramsbotham wrote an article in The Guardian newspaper, urging that whole life sentencing be replaced by indefinite sentencing. He said indefinite sentences would be better than whole life sentences because, while a prisoner might still never be released, they would always have the hope that they might.[25]
Aftermath
In January 2001, Chris Gregg, a senior West Yorkshire detective was selected to lead an investigation into 22 of the West Yorkshire deaths.[26] Following this a report into Shipman’s activities submitted in July 2002 concluded that he had killed at least 215 of his patients between 1975 and 1998, during which time he practiced in Todmorden, West Yorkshire (1974–1975) and Hyde, Greater Manchester (1977–1998). Dame Janet Smith, the judge who submitted the report, admitted that many more suspicious deaths could not be definitively ascribed to him. Most of his victims were elderly women in good health.
In her sixth and final report, issued on 24 January 2005, Smith reported that she believed that Shipman had killed three patients, and she had serious suspicions about four further deaths, including that of a four-year-old girl, during the early stage of his medical career at Pontefract General Hospital, West Riding, Yorkshire. Smith concluded the probable number of Shipman’s victims between 1971 and 1998 was 250. In total, 459 people died while under his care, but it is uncertain how many of those were Shipman’s victims, as he was often the only doctor to certify a death.[27]
The Shipman Inquiry also recommended changes to the structure of the General Medical Council.[28]
The General Medical Council charged six doctors who signed cremation forms for Shipman’s victims with misconduct, claiming they should have noticed the pattern between Shipman’s home visits and his patients’ deaths. All these doctors were found not guilty. Shipman’s widow, Primrose Shipman, was called to give evidence about two of the deaths during the inquiry. She maintained her husband’s innocence both before and after the prosecution.
In October 2005, a similar hearing was held against two doctors who worked at Tameside General Hospital in 1994, who failed to detect that Shipman deliberately administered a “grossly excessive” dose of morphine.[29][30]
A 2005 inquiry into Shipman’s suicide found that it “could not have been predicted or prevented,” but that procedures should nonetheless be re-examined.[23]
In 2005, it came to light that Shipman might have stolen jewellery from his victims. Over £10,000 worth of jewellery had been found in his garage in 1998, and in March 2005, with Primrose Shipman pressing for it to be returned to her, police wrote to the families of Shipman’s victims asking them to identify the jewellery.[31][32]
Unidentified items were handed to the Assets Recovery Agency in May.[33] In August the investigation ended: 66 pieces were returned to Primrose Shipman and 33 pieces, which she confirmed were not hers, were auctioned. The proceeds of the auction went to Tameside Victim Support.[34][35] The only piece actually returned to a murdered patient’s family was a platinum–diamond ring, for which the family were able to provide a photograph as proof of ownership.
A memorial garden to Shipman’s victims, called the Garden of Tranquillity, opened in Hyde Park (Hyde) on 30 July 2005.[36]
Harold and Fred (They Make Ladies Dead) was a 2001 strip cartoon in Viz, also featuring serial killer Fred West. Extracts from the strip were subsequently merchandised as a coffee mug.
Shipman, a television dramatisation of the case, was made in 2002 and starred James Bolam in the title role.[37] The case was also referenced in an episode of the television series Diagnosis: Unknown called “Deadly Medicine” (Season 2, Episode 17, 2003).[38] Shipman’s activities also inspired D.A.W., an episode of the American TV series Law & Order: Criminal Intent. In it, the police investigate a physician who they discover has killed 200 of his patients.[39]
Both The Fall and Jonathan King have released songs about Shipman. The Fall’s song is, “What About Us?”, from the 2005 album Fall Heads Roll, asks the question “what about us, Shipman?”—implying Shipman should have handed out free drugs to the author (for recreational use).
King’s song became controversial when, six months after its release, it was reported to be in Shipman’s defence, urging listeners not to “fall for a media demon”.[40]
As of early 2009, families of the victims of Shipman are still attempting to seek compensation for the loss of their loved ones.[41]
In September 2009, it was announced that letters written by Shipman during his prison sentence were to be sold at auction.[42] However, following complaints from victim’s relatives and the media, the letters were removed from sale.
Negligence – Duty of care – Solicitor – Negligence in execution of will – Liability to intended beneficiaries: SEALE v PERRY (SUPREME COURT OF VICTORIA)
Copyright (c) 1997 INFO-ONE INTERNATIONAL PTY LTD.
VICTORIAN REPORTED JUDGMENTS
SEALE v PERRY
SUPREME COURT OF VICTORIA
FULL COURT
1981 VIC LEXIS 135; [1982] VR 193
9, 10, 13 and 14 April 1981, 11 September 1981, heard
11 September 1981, delivered
CATCHWORDS: [*1] Negligence – Duty of care – Solicitor – Negligence in execution of will – Liability to intended beneficiaries.
In an action by intended beneficiaries under a will against a solicitor for negligence for failing to ensure that the will was executed in accordance with s7 of the Wills Act 1958.
Held: By Lush and Murphy, JJ that the solicitor owed no duty of care to the intended beneficiaries, and, in any event, no damage recognizable at law had been suffered by them.
By McGarvie, J, on principles contained in recent authorities the solicitor owed a duty of care to the intended beneficiaries but he was not liable to them in damages, but the Court was precluded by Robertson v Fleming (1861) 4 Macq 167, from so holding.
JUDGES: LUSH, MURPHY and MCGARVIE, JJ
JUDGMENTS: LUSH, J: The facts of this case are set out in the judgment of Murphy, J. The argument centred upon three main issues: (i) whether the solicitor defendant owed a duty of care to the beneficiary plaintiffs; (ii) [*2] whether the plaintiffs had suffered damage; and (iii) the measure by which any damage suffered by the plaintiff was to be assessed.
The argument on the first question revealed a fundamental difference concerning the width of the famous proposition of Lord Atkin in Donoghue v Stevenson, [1932] AC 562. In that case, at p. 580, his Lordship referred to a “general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances”, and proceeded to his definition of the neighbour relationship. The case itself involved a consideration of the liability of a manufacturer of a defective article to the ultimate consumer, and the final rule appropriate in the circumstances was formulated by Lord Atkin, at p. 599, in some detail, and is a definition of the conditions which must be satisfied before the injured person comes within the description “so closely and directly affected by my act that I ought reasonably to have them in contemplation”.
It will be of assistance to place together the original general statement appearing, at ([1932] AC) p. 580, and the final particular formulation appearing at p. 599. The former reads: “At present [*3] I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I might reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions [*4] which are called in question.” The particular formulation is worded thus: “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”
It will be seen that the sequence of thought in both these statements is to deal first with the element of relationship. In the general statement, foresight is treated as a factor defining the extent of the duty “to avoid acts or omissions” which would be likely to injure a person classed as a “neighbour”. There is a second element of foresight in the “contemplation” which is part of the test by which the “neighbour” is identified, but this identification is to be made before the duty to “take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” arises. In the particular case it is treated as one of a number [*5] of facts which must be proved to establish a cause of action.
In neither the general nor the particular statements, therefore, does it appear that the mere foresight of possible injury to some person or persons is sufficient of itself to give rise to a duty to take care to avoid that injury. A relationship must be established before the law will attach liability to the defendant. The first task of the Court will be to decide whether a relationship capable of giving rise to liability exists, and in making this decision it will, as a necessary part of the common law tradition, consider previous decisions, but the speeches and the decision in Donoghue v Stevenson, supra, imparted a degree of flexibility to the law which makes possible changes and developments not previously contemplated. Whether a particular change or development is to be made may depend upon the Court’s view of reason or justice or policy–the word chosen is immaterial.
The same insistence on the identification of a relevant relationship appears in cases subsequent to Donoghue v Stevenson, of which I propose to refer to three for the reason that they were cited in a context to which I shall refer below in the [*6] most recent House of Lords decision, Anns v Merton London Borough Council, [1978] AC 728; [1977] 2 All ER 492.
The first of these is Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [196 AC 465; [1963] 2 All ER 575, a case in which the plaintiffs had asked their own bankers to make enquiries concerning a company of that company’s bankers, the defendants. The references given were favourable, were expressed to be “without responsibility” and were given negligently. When this case came to the House of Lords in 1964, the crucial question was whether there could be liability for the negligent writing or speaking of words, or whether liability for words was to be found only in the law of fraud and the law of defamation. The House of Lords held that the facts of the case would have given rise to liability in the defendant but for the qualification “without responsibility”. The speeches in the House of Lords show that their Lordships did not regard Donoghue v Stevenson as having provided a new test of liability. Lord Reid, at ([1964] AC) p. 482; ([1963] 2 All ER); p. 580, said: “The appellant’s first argument was based on Donoghue [*7] (or McAlister) v Stevenson. That is a very important decision, but I do not think that it has any direct bearing on this case. That decision may encourage us to develop existing lines of authority, but it cannot entitle us to disregard them. Apart altogether from authority I would think that the law must treat negligent words differently from negligent acts. The law ought so far as possible to reflect the standards of the reasonable man, and that is what Donoghue (or McAlister) v Stevenson sets out to do.” Lord Pearce, at ([1964] AC) p. 536, said in substance that Donoghue v Stevenson developed a rule for applying its general concept to one type of situation. It did not follow that the concept applied to all other types of situation which might fall within the words in which that concept was stated. Lord Devlin, at ([1964] AC) pp. 524-5; ([1963] 2 All ER) pp. 607-8, said: Now, it is not, in my opinion, a sensible application of what Lord Atkin was saying for a Judge to be invited on the facts of any particular case to say whether or not there was ‘proximity’ between the plaintiff and the defendant. That would be a misuse of a general conception and it is not the way in which English [*8] law develops. What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty. It was already clear that the law recognised the existence of such a duty in the category of articles that were dangerous in themselves. What Donoghue v Stevenson did may be described either as the widening of that old category or as the creation of a new and similar one. The general conception can be used to produce other categories in the same way. An existing category grows as instances of its application multiply until the time comes when the cell divides.
“…The real value of Donoghue v Stevenson to the argument in this case is that it shows how the law can be developed to solve particular problems. Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty? As always in English law, the first step in such an inquiry is to see how far the authorities have gone, for new categories in the law do not spring into existence overnight.”
In Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., supra, the final definition of the liability which would have [*9] existed in the absence of the saving words imposes the requirement that there should be on the part of the defendant an express or implied acceptance of responsibility to the plaintiff or to a class of persons to which the plaintiff belonged: see Lord Devlin, at ([1964] AC) pp. 529-30, Lord Hodson, at p. 534, and Lord Pearce, at p. 539. It was said in argument that legal thought had moved on since the decision of that case in 1964, and no doubt this is true. Certainly what has happened since 1932 in the area covered by Donoghue v Stevenson and since 1964 in the area of careless representation and advice is that what was once novel has become familiar, has been explored with greater confidence, and has been found to have wider boundaries than might once have seemed likely. But in each case the question which has had to be answered is whether there was a duty, and not merely the question whether injury could have been foreseen: Pratt and Goldsmith v Goldsmith, [1975] VR 378, at pp. 386-7.
In the second case, Dorset Yacht Co. Ltd. v Home Office, [1970] AC 1004; [1970] 2 All ER 294 the House of Lords held that the Home Office was liable to property owners [*10] for damage done by boys who had left a Borstal camp where they were detained. Lord Pearson, at ([1970] AC) p. 1054, and Lord Diplock, at p. 1060, state in strong terms the limitations of Lord Atkin’s “aphorism” while in no way understating its significance in the law generally. At p. 1061, Lord Diplock said that if the aphorism were of general application it would by itself have disposed of the problems in Hedley Byrne and Co. Ltd. v Heller, except that of disclaimer. It may be noted that on the same page his Lordship pointed out that if the defendant were involved in two separate neighbour relations, conflicting duties might arise.
At ([1970] AC) p. 1027; ([1970] 2 All ER) p. 297 Lord Reid said of the aphorism: “It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.”
This observation is significant in relation to a later statement by Lord Wilberforce, but Lord Reid was careful to point, in effect, to the fact that he was dealing with a case of physical damage [*11] to property and not with a case of economic loss or of a failure to assist.
The third case is Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373; [1971] 2 All ER 1003. In that case the council’s building inspector inspected and passed the excavations for the foundations of a house. In fact the house was built on the site of an old rubbish tip, a fact which should have been detected by the inspector if he had used due care. The house was completed and sold to a buyer, who sold it to the plaintiff. After the plaintiff took possession serious defects developed. The plaintiff was awarded damages against the council, based on the cost of repair. Sachs, LJ, at p. 400, quoted the dictum of Lord Pearson in the Dorset Yacht Case to which I have referred above, and at the following pages referred to different rules developed in different categories of cases within the general rule of Donoghue v Stevenson.
I have dealt with these three cases because of their intrinsic importance and because of their significance in the most recent House of Lords decision, Anns v Merton London Borough Council, [1978] AC 728; [1977] 2 All ER 492. [*12] In each of them a duty was held to exist, but only after a precise formulation of requirements appropriate to the case. There is in contrast the decision of the Privy Council in Mutual Life and Citizens’ Assurance Co. Ltd. v Evatt (1970) 122 CLR 628, where it was held that no duty of care in the giving of advice arose unless the giver carried on a business of giving skilled advice or possessed a special skill or competence in the field of the advice given: see (122 CLR) p. 641. At p. 642 still another caution was given against regarding any of the great historical cases as intended to lay down the metes and bounds of the law of negligence. Anns v Merton London Borough Council, supra, concerned the liability of a local government authority for the negligence of an inspector in the examination of the foundations and footings of a block of flats. The matter came before the House of Lords before trial, and was therefore argued on the pleadings. The decision of the House was that the Council could be liable to the plaintiffs, the owners of the flats at the time of the issue of the writ some years after the completion of the building, if it were shown that the [*13] officers had improperly exercised their discretion whether or not to make inspections, and had failed to exercise reasonable care to see that the by- laws were complied with. It may be thought that this was a limited duty of care, but the significant point is that it was held to be a duty owed to the plaintiffs.
In a speech in which Lord Diplock and Lord Simon of Glaisdale concurred, Lord Wilberforce said, at ([1978] AC) pp. 751-2; ([1977] 2 All ER) p. 499: “Through the trilogy of cases in this House, Donoghue v Stevenson, [1932] AC 562; Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [1964] AC 465, and Dorset Yacht Co. Ltd. v Home Office, [1970] AC 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the [*14] former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise (see the Dorset Yacht Case, [1970] AC 1004, per Lord Reid, at p. 1027. Examples of this are Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [1964] AC 465 whe the class of potential plaintiffs was reduced to those shown to have relied upon the correctness of statements made, and Weller and Co. v Foot and Mouth Disease Research Institute, [1966] 1 QB 569; and (I cite these merely as illustrations, without discussion) cases about ‘economic loss’ where, a duty having been held to exist, the nature of the recoverable damages was limited (see SCM (United Kingdom) Ltd. v W.J. Whittall and Son Ltd., [1971] 1 QB 337 and Spartan Steel and Alloys Ltd. v Martin and Co. (Contractors) Ltd., [1973] QB 27.”
This observation may [*15] be thought to echo the opinion of Lord Reid quoted above from the Dorset Yacht Case, at ([1970] AC) p. 1027. However, the paragraph in which that opinion appears contains references to categories of cases in which there exist various conditions of liability other than foreseeability of damage, and finishes, “I can see nothing to prevent our approaching the present case with Lord Atkin’s principles in mind”. In my opinion, in the light of its origin in Lord Reid’s statement and of the authorities which Lord Wilberforce cited, the passage which I have quoted cannot be read as meaning that the possibility of foreseeing damage by itself establishes “proximity” which in turn establishes a duty of care. Since I wish to say something later about the right of the plaintiff which must be correlative to the duty of the defendant, I point out that in both the Dorset Yacht Case and in Ann’s Case the plaintiff or plaintiffs owned property alleged to be damaged or adversely affected by the defendants’ conduct, and the questions were whether in the circumstances the defendants because of remoteness in the one case and the special nature of their statutory duties in the other were under any duty [*16] of care to avoid acts which might damage or impair that property.
In Caltex Oil Co. Ltd. v The Dredge Willemstad (1976) 136 CLR 529, the High Court dealt with a situation in which the plaintiff had suffered economic loss but no damage to property. The facts, briefly, were that the plaintiff by contract with a refinery company which owned a submarine pipeline obtained supplies of oil products from the refinery which were delivered to the plaintiff’s depot through the pipeline. The pipeline was fractured as a result of negligent navigation of the defendant dredge. Despite the absence of damage to any property owned by or in possession of the plaintiff, the High Court held that the defendant was liable to the plaintiff for damage measured by the cost of alternative methods of transporting the products to the depot. I shall refer further to this case below.
In the judgment under appeal, the learned Judge considered many if not most of the authorities, but in the end it is fair to say that he relied principally on the decision of the Vice-Chancellor Sir Robert Megarry in Ross v Caunters, [1980] 1 Ch 297; [1979] 3 All ER 580 [*17] a case in which the facts are not distinguishable from those of the present case, and that of the House of Lords in Anns v Merton London Borough Council, [1978] AC 728; [1977] 2 All ER 492 which in turn had provided the main basis for the decision of the Vice-Chancellor.
On the facts of the present case, it is clear that the defendant owed a duty of care to the testator by reason of his contract of retainer, and possibly owed a duty to the testator in tort. It is also beyond doubt that the defendant must have appreciated that his failure to carry out the testator’s instructions effectively would have the result of depriving the plaintiffs of the gift proposed to be made to them. The question in the end is whether the other circumstances of the case are such as to lead to the conclusion that, despite the factors just referred to, it should be held that the defendant owed no duty to the plaintiffs.
In my opinion this Court should hold that the defendant owed no duty to the plaintiffs for the following reasons:– (i) The testator owed no duty to the plaintiffs either to make the gift or to perfect the execution of his intention to make the gift. The evidence [*18] does not suggest any such duty contractual or otherwise, nor does it even suggest, if it be relevant, a moral duty. The question then arises whether it should be held that his solicitor acting on his behalf can be subject to a duty of which the testator was free.
All the cases in which an employer engages a workman or contractor to do work for him, and in which the workman or contractor has been held to be under a duty of care to others, “neighbours”, in performance of that work, are cases where the employer himself would have been under such a duty if negligently performing the work himself. The fact that the employer may have contracted out of liability, (e.g. Wilson v Darling Island Stevedoring and Lighterage Co. Ltd. (1956) 95 CLR 43 and Adler v Dickson, [1955] 1 QB 158) is not relevant–he has contracted out of his liability for breach of an acknowledged duty of care. (ii) The content of the defendant’s duties was entirely within the control of the testator. Change in instructions, or waiver of a breach of instructions must have the effect of destroying any duty to the plaintiffs to act in accordance with the original instructions. [*19] It would not have availed the defendant boatswain in Adler v Dickson, supra, to say that a ship’s officer, seeing the way in which the gangway had been rigged, had said “That will do”. But it must, I think, be accepted here that if the defendant had negligently delayed drawing the will, and on discovering this the testator had said “No matter, I shall make a different one”, or even if he had said “Take no further action”, the plaintiffs could not have succeeded in any proceedings. These considerations support the first proposition by indicating that the defendant was under no separate duty to the plaintiff distinct from any duty incumbent on the testator, and if the latter owed none neither did the defendant. (iii) There are serious difficulties involved in the concept that a solicitor may owe a duty of care to any person other than his client in the discharge of his client’s instructions. The result might well be the existence of conflicting duties, a possibility contemplated by Lord Diplock in the Dorset Yacht Case at ([1970] AC) p. 1061. (iv) The only interest which the plaintiffs had in the gift at the time of the solicitor’s negligent conduct was a [*20] spes successionis, and if this expression be thought to imply a subjective state of mind, there was no evidence that they knew of the intended gift, though in my opinion this is irrelevant. There was, however, no right or interest capable of protection at law or in equity or capable of enforcement by any remedy. The case therefore approximates to one in which the defendants are saying not so much, “you failed in your duty to use care to protect our interests” as “you failed in a duty to assist us to protect our interests”. If this be accepted, as I think it should be, the case becomes one to which the observation of Lord Reid in the Dorset Yacht Co. Ltd. v Home Office, [1970] AC 1004, at p. 1027; [1970] 2 All ER 294, at pp. 297-8, may be applied: “And when a person has done nothing to put himself in any relationship with another person in distress or with his property mere accidental propinquity does not require him to go to that person’s assistance.” (v) Nothing in the circumstances points to any assumption by the defendant of a duty to the plaintiffs. The case in my opinion falls between cases of negligent conduct and cases of negligent words, though I [*21] think it is artificial to say, as was argued, that the solicitor represented to his client that the will was valid. In any case, this representation was not made to the plaintiffs. Nevertheless, I consider that the question of assumption of responsibility is relevant here. The auditor or the banker may fairly be said to assume responsibility to those to whom his reports are, in his contemplation, going. The solicitor taking instructions for a will is concerned only with his client, and exercises no choice, and indeed it is irrelevant to him, who the beneficiaries may be. In no sense comparable with the cases of the banker and the auditor does he accept any responsibility to any person other than his client. The facts of the present case may be contrasted with those of Whittingham v Crease and Co., [1978] 5 WWR 45, as set out in Ross v Caunters, [1980] Ch 297 at p. 312; [1979] 3 All ER 580. In that case the solicitor urged the witness to sign, against her doubts, the debate taking place in the presence of the witness’s husband, the plaintiff. In these circumstances I think that a responsibility to the plaintiff was assumed by the [*22] solicitor. So also in a case referred to by McGarvie, J, Everett v Griffiths, [1920] 3 KB 163 there was a clear acceptance by the doctor of responsibility to the patient, as Atkin, LJ indicated in a passage cited by McGarvie, J Indeed, it now seems difficult to understand why the doctor’s contract with the parish guardians was even relevant to his liability to the patient.
There is another approach which leads to the same conclusion. In the cases which I have cited, the speeches and judgments have been expressed in terms which concentrate on examining the question whether a duty exists. A duty, however, cannot exist by itself. To the duty seen as imposed on the defendant, there must be a correlative right in the plaintiff: for either to exist, both must be capable of being identified.
It is possible that this proposition is at the root of the reluctance of the common law, evident for a long time, to recognize purely economic loss as a form of damage recoverable in an action for negligence. If person or property were damaged, it was not difficult to identify the plaintiff’s right as a right to have care taken not to cause that damage. If the plaintiff [*23] suffered an economic loss, such as the loss of the profits of a business, it was less easy to identify anything in the nature of a right to be protected by an action for negligence.
The decision in Hedley Byrne and Co. Ltd. and Partners Ltd., [1964] AC 465; [196 2 All ER 492 that damages could be recovered for the consequences of negligent misrepresentation meant that damages for a purely economic loss would be awarded in cases of that kind. That, however, did not overcome the fundamental difficulty in allowing actions for such loss, because in the misrepresentation cases, the plaintiff on the faith of the representation decides to take or not to take some step, and the common law is familiar with the award of consequent damage in such a situation in fraud cases.
I venture to think that it is really the problem of identifying the right which the plaintiff is entitled to have protected which underlies the difficulties of allowing actions to be brought in cases were the plaintiff has suffered and suffered only economic loss. These difficulties were considered in the judgments of the Court of Appeal in Spartan Steel and Alloys Ltd. v Martin and Co. (Contractors) [*24] Ltd., [1973] QB 27; [1972] 3 All ER 557 and of the High Court in Caltex Oil (Australia) Pty. Ltd. v The Dredge Willemstad (1976) 136 CLR 529.
In each of these cases, damages of a limited nature were awarded for the consequences of negligent damage to a facility which the plaintiff was using in a commercial operation. In neither case was the plaintiff the owner of or in possession of the equipment actually damaged. In the Spartan Steel Case, the plaintiff constantly used electricity supplied through the damaged cable, but had no right to the continuance of supply. In the Caltex Case the plaintiff had a right by contract with a third party to the delivery of oil products through the damaged pipeline. The decisions of the two Courts give protection to the relevant user, so that it is treated as the foundation of a right. Nevertheless, the protection afforded was limited. In the Spartan Steel Case, damages were limited to losses connected with work in progress at the time of the interruption, and were refused for the loss of profits of subsequent operations which might have been expected to follow in the ordinary course of events. [*25] In the Caltex Case, the damages sought were limited to the additional cost of moving the products by means other than the pipeline, but the tenor of the judgments suggests to me that had, for instance, there been a loss of profit because not all the available products could have been moved to points of sale by alternative means, damages would not have been given for that loss. The decision in Morrison Steamship Co. v Greystoke Castle (Cargo Owners), [1947] AC 265; [1946] 2 All ER 265 is capable of similar explanation. The cargo of the plaintiffs was in process of carriage when the negligence of the defendant in damaging the ship in which the cargo was being carried brought about an increase in the ultimate cost of the carriage to the plaintiffs.
In the present case, there is nothing in the position of the plaintiffs on which a right can be founded. They had no form of right at law, by contract or otherwise, to the benefaction, and there is nothing which can be treated as analogous to the enjoyment or continuous enjoyment of a service which is to be seen in the last three cases mentioned. Indeed, if there is an analogy, it is between the plaintiffs’ [*26] expectation in this case and the plaintiff’s expectation of future profits which were refused protection in the Spartan Steel Case in a manner apparently approved by the High Court in the Caltex Case.
In Caltex Oil (Australia) Pty. Ltd. v The Dredge Willemstad (1976) 136 CLR 529, stress was laid on the fact that the defendant should have foreseen that damage of the particular kind which in fact occurred might be caused to a particular, identified person or company. In a sense, a parallel proposition can be put on the facts of this case. Passages referring to the foreseeability of loss to a specific person may be found in the judgments of Gibbs, J, at (136 CLR) p. 555, Stephen, J, at p. 577, and Mason, J, at p. 599. Although this is so, there are other parts of the formulations the requirements of which are not met by the present facts. Thus, Gibbs, J, who, at (136 CLR) p. 544, had posed the question to be decided in the case in terms which appear to make some physical damage to the property of some person (i.e. the invasion of some right) an essential of liability to the plaintiff, stated, at p. 555, that as a general rule damages to the plaintiff’s person [*27] or property was an essential part of a cause of action. He continued: “The fact that the loss was forseeable is not enough to make it recoverable. However, there are exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence, and owes the plaintiff a duty to take care not to cause him such damage by his negligent act.”
The last clause in this sentence in effect emphasizes the proposition that foreseeability of damage will not be enough to create a duty and a correlative right–these must be found in some aspects of the facts other than foreseeability, or in those aspects combined with foreseeability. So also Stephen, J, at (136 CLR) p. 577 stressed that what the plaintiff should have foreseen was that damage to specific property might cause loss to more than one person, and accordingly considered it significant that there had been negligent damage to the property of a third party in breach of a duty of care owed to that party. Mason, J’s formulation at p. 593, in the sentence beginning “Moreover, they [*28] should have foreseen…”, of the foreseeable consequences which gave rise to liability includes foresight that some rights of property would be infringed in a manner which would cause loss.
Thus, all three of the judgments cited refer either to the existence of a duty to the plaintiff arising out of circumstances other than the foreseeability of loss, or to the existence and breach of a duty of care to some person, damage to whose property has occasioned the loss to the plaintiff.
For my part, I do not regard the emphasis on property damage and personal injury in decided cases, continued as it is in the judgments of Gibbs, Stephen and Jacobs, JJ, as either arbitrary or restrictive. I think a consideration of the right which must be correlative to any suggested duty reveals the reason for this emphasis. In broad terms, the common law of tort afforded protection by personal actions to property rights and to integrity of the person. The action on the case facilitated the grant of this protection and very largely extended its scope. The introduction of liability for negligent acts widened the relief which had been available in trespass, since the latter relief was available only [*29] in cases where land, goods or person had been directly affected by the acts of the defendant: Holmes v Mather (1875) LR 10 Ex 261. But at all times, and the law of defamation which also developed as an action on the case is an illustration, it was essential that some right of the plaintiff should be infringed by the defendant. While damage was of the essence of an action on the case, it would not by itself found the action. Stephen, J refers to this subject at (136 CLR) p. 569. There is perhaps some difference in emphasis between his historical reference and mine. I respectfully agree with him that a denial to the risk bearer of the protection given to the chattel owner or person in possession may be unjust, but I suggest that the injustice should be corrected by extending the concept of the protected interest, and not by saying that no such interest need be shown if damage is suffered. In fact it appears to me that this is exactly what has been done in Morrison Steamship Co. v Greystoke Castle (Cargo Owners), [1947] AC 265; [1946] 2 All ER 265; Spartan Steel and Alloys Ltd. v Martin and Co. (Contractors) Ltd., [1973] QB 27; [1972] [*30] 3 All ER 557 and the Caltex Case. In another case cited as one in which the plaintiff recovered “economic loss”, Ministry of Housing and Local Government v Sharp, [1970] 2 QB 223; [1970] 1 All ER 1009 the negligent act complained of had resulted in the loss to the plaintiff of a proprietary right. In the negligent misrepresentation cases it may perhaps be said that a right arises in the plaintiff out of the facts of reliance by the plaintiff on the misrepresentation and an acceptance of responsibility by the defendant for the advice contained in the misrepresentation, a right which arises out of a relationship of “proximity”, a para-contractual right.
No extension of the concept of right or protected interest which has yet been made will suffice to sustain the present plaintiffs’ case. It is not assisted by cases on the assessment of damages for the loss by breach of contract of a chance of gain, because in those cases the contract gave the plaintiff a right to the chance. Nor, in my opinion, do either “policy”, “reason” or “the requirements of justice” make it desirable that such an extension should [*31] be made. Accordingly, my opinion on the first issue argued is that the defendant in the present action owed the plaintiffs no duty of care.
These views are against the weighty authority of Sir Robert Megarry V-C’s decision in Ross v Caunters, [1980] 1 Ch 297; [1979] 3 All ER 580. In his judgment in that case, the Vice-Chancellor began by considering the decision of the House of Lords in Robertson v Fleming (1861) 4 Macq 167, in which it was said that the negligent conduct by a solicitor of his client’s business does not expose the solicitor to an action by a third person who has lost a contemplated benefit. I do not share the Vice-Chancellor’s view that these statements were obiter. The Vice-Chancellor’s reason for not applying them, however, was not that they were obiter but that they had been superseded by the decision in Donoghue v Stevenson, [1932] AC 562 and the cases which came after it.
The proposition that a solicitor is not liable for professional negligence to a person other than his client does not rest on Robertson v Fleming, supra, alone. Moss v Solomon [*32] (1858) 1 F and F 342; 175 ER 756, a nisi prius decision of Willes, J, and Rae v Meek (1884) 14 AC 558, a further decision of the House of Lords, were to the same effect. In Rae v Meek the pursuers were in a stronger position than the present plaintiffs, because they were, to the knowledge of the defender law agent, beneficiaries contingently interested in a fund which the pursuers alleged was lost when the trustees acted on negligent advice of the law agent.
The Vice-Chancellor gave reasons for preferring the view that a solicitor is liable to his client in tort as well as in contract (Midland Bank Trust Co. v Hett, Stubbs and Kemp, [1979] Ch 384) to the traditional view that the liability was in contract only (Groom v Crocker, [1939] 1 KB 194). I do not propose to follow the Vice-Chancellor into this issue. I draw attention to the fact that the cases cited by Lord Denning MR in his judgment in Esso Petroleum Co. Ltd. v Mardon, [1976] QB 801, at pp. 819-20; [1976] 2 All ER 5 a judgment which the Vice-Chancellor treated as decisive, refer to a duty imposed by law on one of the parties to a contract, [*33] breach of which duty may be a tort, but are far from saying that a duty so created enures for the benefit of persons not parties to the contract or other event which was the occasion of the duty. In Mardon’s Case the tort found by Lord Denning did not lie in breach of the expert’s duty to give skilled and careful advice to Esso, but in the fact that Esso and their expert servant had negligently made representations to the plaintiff.
In this jurisdiction Gillard, J’s decision in Belous v Willets, [1970] VR 45 stands against that of Oliver, J in the Midland Bank Trust Case, supra.
As I have indicated, the Vice-Chancellor relied upon the dictum of Lord Wilberforce in Anns v Merton London Borough Council, [1978] AC 728; [1977] 2 All ER 492, which I have quoted. I have already made my comments on the interpretation of that passage.
American cases quoted by the Vice-Chancellor are directly in point, but the American courts have not spoken with one voice on the subject. A reference to 45 American Law Reports, 3rd series, 1181 and 1187-1200 shows a divergence of result, and, where the plaintiff has succeeded, a division of reasons between allowing a third [*34] party to benefit from the contract of retainer and allowing the third party to sue for breach of a duty owed to him. It may be mentioned that Biakanja v Irving (1958) 320 P 2d 16 emphasizes the specific identification of the plaintiff as a person likely to be injured as a relevant factor, as does Caltex Oil (Australia) Pty. Ltd. v The Dredge Willemstad (1976) 136 CLR 529. On the issue of the recovery in an action for negligence of damages for economic loss not accompanied by damage to person or property or injury to an identifiable right, I have already expressed my views. Megarry, V-C, at ([1980] Ch) p. 321, dismissed the argument that the plaintiff had suffered no financial loss, but the difficulty of the matter is illustrated by his own example of the “gift in transit”. It may be that in ordinary English usage the donee would be said to suffer a loss if the gift were destroyed or stolen, but unless the property had passed to him the donee would not be entitled to sue the carrier.
Since I am of the opinion that the defendant in the action should succeed, it is not strictly necessary to consider the question of the measure [*35] of damages. I confine myself to saying that in my opinion damages are to be measured by the value of the estate in land considered to have been lost by the plaintiffs. If there is no market for such estates, then the value must be determined by discounting the value of the freehold with vacant possession to allow for the deferment of possession. There is in my opinion no room in this exercise for a consideration of the taxation liabilities of individual plaintiffs. The estate itself has a value which is constant irrespective of the identity of the owner. Without attempting to discuss the authorities, I am of the opinion that since the rise in value of the land was not shown to have been produced by any factor other than inflation, it is the value at the date of trial which should be used as the basis for assessing the value of the estate given.
In my opinion, accordingly, the appeal should be allowed, the judgment appealed from set aside, and in lieu thereof there should in the action be judgment for the defendant. The plaintiffs will pay the costs, both here and below.
MURPHY, J: This was an appeal against the judgment of Anderson, J delivered on 19 May 1980 whereby judgment [*36] was entered for the first-named respondent in the sum of $ 6425 and for the second-named respondent in the sum of $ 9000.
At the hearing before the learned trial Judge, the plaintiffs (respondents) claimed damages from the defendant (appellant) for his alleged negligence associated with the execution of the will of Joseph William Byrne (the deceased).
In August 1973, the deceased had consulted the appellant, who practised as a solicitor, and retained him to prepare a will for him according to instructions given. The will was drawn by the appellant in accordance with the instructions that were given to him, but unfortunately the will was not executed in conformity with the Wills Act 1958.
The witnesses to the deceased’s signature on the will, one of whom was the appellant himself, did not subscribe their signatures in the presence of the deceased.
The deceased died on 13 September 1973. Probate of the invalid will was refused and probate of an earlier will made by the deceased in 1954 was granted on 22 July 1974. Under that earlier will, the subject property, situate at Manningham Road, Bulleen was devised to the widow of the deceased, and neither of the plaintiffs obtained [*37] any benefit. The instructions which had been given to the appellant by the deceased in August 1973 were intended to have the effect of devising to the plaintiffs and to their mother the said property as tenants in common in equal shares, but subject to the right of the widow of the deceased to live in the said property for as long as she might wish. The value of the subject property at the date of the death of the deceased was $ 26,500. By the date of the hearing of this action, the value of the said property was $ 46,000. The deceased was survived by his widow, who was born on 16 October 1910. She was in good health. At the hearing, there was evidence, which the learned trial Judge accepted, that her life expectancy at that time was 14.45 years.
By their statement of claim, the plaintiffs alleged that the appellant owed to them a duty of care and that their failure to take under the invalid will resulted from the negligence of the appellant. This negligence was particularized as follows: “Failing to ensure that the signatures of the witnesses to the will were subscribed in the presence of the deceased”. The plaintiffs alleged that they had suffered loss and damage, and particularized [*38] that loss and damage as follows: “Each plaintiff has suffered a loss of a one- third share in the property referred to in paragraph four hereof, which , as of the date of death of the deceased, was valued in all at $ 26,500”.
Each plaintiff accordingly claimed the value of his/her one-third share, which was stated in the prayer for relief, to be $ 8833.33.
The learned trial Judge held that the appellant owed a duty of care to the respondents and that he had been in breach of that duty of care and was liable in negligence to pay damages.
I shall leave till later in this judgment any discussion of the way in which his Honour considered the question of damages.
The notice of appeal dated 28 May 1980 sets out some nine grounds, to which I do not think it is necessary to refer in detail. In essence, the appellant submitted that the learned trial Judge was wrong in holding as he did that the appellant owed a duty of care to the respondents to use proper skill and care to have the will properly executed, and that the appellant was liable to them in tort for negligence in failing to do so. The grounds of appeal also went to the issue as to the assessment of damages.
Looking [*39] to see what was the ratio of the decision of the learned trial Judge, it appears that he was prepared to follow a decision given quite recently by Megarry, V-C in Ross v Caunters, [1980] 1 Ch 297; [1979] 3 All ER 580, which decision had been followed by Burt, CJ in Watts v The Public Trustee of Western Australia, [1980] WAR 97.
The factual situation in the present case was for practical purposes on all fours with the factual situation existing in each of those two cases, and the learned trial Judge was persuaded by the reasoning in Ross v Caunters, supra, to adopt the ratio of that case.
In Ross v Caunters, Megarry, V-C held (my underlining): “In a case such as the present, there is merely a duty owed to him” (the beneficiary) “as well as the client, to use proper care in carrying out the client’s instructions for conferring the benefit on the third party…the duty that I hold to exist in the present case, far from diluting the solicitor’s duty to his client, marches with it, and, if anything, strengthens it.”
A little earlier, at ([1980] 1 Ch 297) p. 322; ([1979] [*40] 3 All ER) p. 599 his Lordship had said (my underlining): “In broad terms, a solicitor’s duty to his client is to do for him all that he properly can, with, of course, proper care and attention. Subject to giving due weight to the adverb ‘properly’, that duty is a paramount duty. The solicitor owes no such duty to those who are not his clients. He is no guardian of their interests. What he does for his client may be hostile and injurious to their interests; and sometimes the greater the injuries the better will he have served his client. The duty owed by a solicitor to a third party is entirely different; there is no trace of a wide and general duty to do all that properly can be done for him.” These statements of principle lie at the base of his Lordship’s judgment. Nonetheless, I do not know that it is necessary at this point to examine the meaning of and the implications of the acceptance of the term “a paramount duty” as used by his Lordship in the above passage. Nor do I intend to digress to examine how difficult it might be to support the view that a duty owed to a third party “strengthens” the duty owed by a solicitor to his client.
However, it does appear that his Lordship, [*41] when defining the duty owed by a solicitor to the beneficiary, considered that that duty was coterminous, (if one can use that word), with the duty owed by the solicitor to his client. It “marches with it” and, presumably, I add, keeps in step. I am not clear whether this circumstances was considered by his Lordship to be purely coincidental, arising out of the facts of the particular case he was deciding, or whether the duty, which he found was owed by a solicitor to third party beneficiaries would, in all cases, be expected to vary and, as his Lordship put it, to “march” with any variations that there might be in the contractual duty which the solicitor owed to the client. I rather imagine that the latter was what his Lordship had in mind.
I find it rather odd as a concept that this duty owed by a solicitor to a third party arises only in circumstances where the client intends or desires to confer a “benefit” on a third party, and that if the intendment (or perhaps it is the effect) of the client’s instructions was not to confer a benefit but even to injure the interests of a third party, then no duty to take care arises.
In many cases the solicitor could imagine, at the time [*42] when his work was to be performed, that it involved the conferring of some “benefit”, or even perhaps that it may have some injurious effect on somebody, and therefore he might, on proper investigation, be in a position to make a decision whether or not a “benefit” was involved and whether he owed a duty of care to some third person or persons.
The precise meaning which should be attached to the word “benefit”, as used trusts, assignments, settlements, wills or the like would on similar reasoning owe duties of care to different persons. If the solicitor attempted to protect himself against this responsibility by a special contract with his client in which he disclaimed any responsibility (just as the Bank did in the case of Hedley Byrne and Co. Ltd. v Heller and Partners, [1964] AC 465; [1963] 2 All ER 575), interesting questions would arise whether this would protect the solicitor in an action brought against him by the oblivious third party. And, if so, why? If not, it is difficult to see why a solicitor owing a Hedley Byrne duty of care to third parties can protect himself if there is no contract, but is unable to protect himself apropos third parties, [*43] if there is in fact a contract.
The principle involved appears to me to be an elusive one.
It may be said that the duty, which his Lordship found to exist in Ross v Caunters, [1980] 1 Ch 297; [1979] 3 All ER 580 must really spring from the terms of the contract itself. And if it does spring from the contract, is the supposed duty really the assertion of a jus quaesitum tertio? This would, as I appreciate the law, be in direct conflict with decisions both of the House of Lords and of the Privy Council, and would also run counter to expressions of opinion contained in decisions of the High Court of Australia: see Coulls v Bagot’s Executor and Trustee Co. Ltd., [1967] ALR 385; 40 ALJR 471; Beswick v Beswick, [1968] AC 58 (H.L.); Dunlop Pneumatic Tyre Co. Ltd. v Selfridge and Co. Ltd., [1915] AC 847; Midland Silicones Ltd. v Scruttons Ltd., [1962] AC 446; New Zealand Shipping Co. Ltd. v A M Satterthwaite and Co. Ltd., [1975] AC 154 (PC).
It is difficult to avoid the conclusion that the duty said in Ross v Caunters, supra, to be owed by a solicitor to a third party, in circumstances [*44] such as we are considering here, must arise in some way out of or as a consequence of the contractual relationship and not of the actual work which the solicitor has undertaken on behalf of his client.
In the present case the third party was not known to the solicitor. Nor did he know the solicitor, and he did not rely upon the solicitor in any way. He did absolutely nothing. He did not in reliance on the maker drink the deleterious ginger beer or wear the irritating underpants and suffer personal injury as the consumers respectively did in Donoghue v Stevenson, [1932] AC 562 and Grant v Australian Knitting Mills, [1936] AC 85. He did not act to his financial detriment, relying upon the professional skill of the bankers or upon any advice given to him by the bankers as (hypothetically) did the advertising agents in Hedley Byrne and Co. v Heller and Partners, [1964] AC 465; [1963] 2 All ER 575 and the investor in Mutual Life and Citizens Assurance Co. v Evatt, [1971] AC 793; (1968) 122 CLR 556 (HC); (1970) 122 CLR 628 (PC). He did not in reliance on anyone lay out money in the purchase of a flat or [*45] home (which sank), as did the plaintiff in Anns v The Merton London Borough Council, [1978] AC 728; [1977] 2 All ER 492. His property was not damaged as a consequence of any act or omission of public officials as was the plaintiff’s yacht in Dorset Yacht Co. v Home Office, [1970] AC 1004. He lost nothing of his own, nor was any property of his damaged, destroyed or affected in any way; his health was not touched.
His Lordship, in Ross v Caunters, was nonetheless prepared to find that as a consequence of the recent developments in the understanding of the law of negligence as expounded in the several decisions of the House of Lords and Privy Council referred to, the fact that the solicitor should have foreseen that the named third party beneficiary would not receive an inheritance if he did not exercise due care and skill in and about the execution of the will containing the devises intended by the testator, placed him in a “special relationship” with the beneficiary which gave rise to a duty owed to that beneficiary to take care. This involved, according to his Lordship, “either an extension of the Hedley Byrne principle [1964] AC 465 or, more probably, [*46] a direct application of the principle of Donoghue v Stevenson, [1932] AC 562″; Ross v Caunters, [1980] 1 Ch 297, at p. 322; [1979] 3 All ER 580, at p. 599. It had been submitted by counsel to his Lordship that “if a solicitor was not liable in tort even to his own client, it would be remarkable to hold him liable in tort to a third party” ([1980] 1 Ch 297, at pp. 306-8), and his Lordship seems to have been attracted by this submission. I myself would not find that there was anything “remarkable” in such a proposition if, in the performance of the contract he had made with his client, the solicitor breached in its performance some tortious duty of care that he owed to a third party. As Lord Salmon said in Arenson v Arenson, [1977] AC 405, at p. 438, when referring to Sutcliffe v Thackrah, [1974] AC 727, “The architect owed a duty to his client, the building owner, arising out of the contract between them, to use reasonable care in issuing his certificates. He also, however, owed a similar duty of care to the contractor, arising out of their proximity: see Hedley Byrne and Co. Ltd. v Heller and Partners [*47] Ltd., [1964] AC 465.”
“The tort liability is independent of any question of contract”: Grant v Australian Knitting Mills Ltd., [1936] AC 85, at p. 106.
What I would think it surprising to find is that, although a testator himself owed no duty of care to persons he proposed to benefit (because they have no rights apropos him), and need not take care to see that his will is properly executed (whether homemade or professionally drawn), yet if the testator employed a solicitor to do the very same thing on his behalf, then that solicitor does owe a duty of care to persons whom his client proposes to benefit.
Where an agent, independent contractor, professional man or employee has in the past been held liable in negligence to a third party for the negligent performance of a contractual act which he was engaged to perform on behalf of his principal, it has always been in circumstances where the principal himself, if he had performed the act in question, would also have been liable to the third party who was injured. In a way, he is the principal’s agent.
Accordingly, it seems that the proposition that a solicitor owes a duty of care to third parties in the circumstances with [*48] which we are here concerned is a novel one.
In Donoghue v Stevenson, [1932] AC 562 Lord Atkin took as the basis for the propositions that he was putting before the House, Luke’s parable of the Good Samaritan. The acceptance of the proposition that a solicitor owes a duty to a third party who is brought to his notice fortuitously because of the contents of the contract he makes with his client, seems to involve that the priest and the Levite who passed by the man lying in the gutter breached a duty of care that they owed him which, as I understand the law, would be incorrect. Moreover, it also involves that, if the Good Samaritan had gone past, but later engaged for reward a charioteer plying his trade, instructing him to carry the man in the gutter to his (the Good Samaritan’s) abode and if the charioteer breached his contract with the Good Samaritan by failing to go near the man in the gutter, the man in the gutter could sue the charioteer for breach of a duty that the charioteer owed to him to take care in the performance of his contract. He would “be so closely and directly affected by his” (the charioteer’s) “acts or omissions that he can reasonably foresee that the third party [*49] is likely to be injured by those acts or omissions”: see Ross v Caunters, [1980] 1 Ch 297, at p. 323; [1979] 3 All ER 580, at p. 599. This appears to me to involve a legal heresy. I suspect it is the introduction, through the back door, of a jus quaesitum tertio, and as Lord Haldane said, “Our law knows nothing of a jus quaesitum tertio arising by way of contract”: Pneumatic Tyre Co. Ltd. v Selfridge, [1915] AC 847, at p. 853. In Rookes v Barnard, [1964] AC 1129, at p. 1187 Lord Evershed stated: “Only parties to a contract may sue for breaches of that contract, notwithstanding that some third party may be damnified by the breach.”
In Beswick v Beswick, [1968] AC 58 the House of Lords applied Tweddle v Atkinson (1861) 1 B and S 393 and referred to “the fundamental rule laid down” in that case. Lord Reid specifically referred to “Lord Denning’s view, expressed in this case not for the first time,” that a third person who is to benefit from a contract to which he is not a party can sue to enforce it. His Lordship said, “But the view more commonly held in recent times has been that such a contract confers no right on” the third [*50] party: [1968] AC 58, at p. 72. In Beswick v Beswick, supra, the House unanimously decided that the widow of a deceased man who had made a contract with his nephew, whereby the nephew was obliged to pay the widow so much each week for life, could not sue personally to enforce the contract.
Again, in New Zealand Shipping Co. Ltd. v AM Satterthwaite and Co. Ltd., [1975] AC 154, at p. 166 the Privy Council stated: “The starting point in discussion of this question is provided by the House of Lords’ decision in Midland Silicones Ltd. v Scruttons Ltd., [1962] AC 446. There is no need to question or even to qualify that case insofar as it affirms the general proposition that a contract between two parties cannot be sued on by a third person even though the contract is expressed to be for his benefit. Nor is it necessary to disagree with anything which was said to the same effect in the Australian case of Wilson v Darling Island Stevedoring and Lighterage Co. Ltd. (1956) 95 CLR 43.” See also Coulls v Bagot’s Executor and Trustee Co. Ltd., [1967] ALR 385; 40 ALJR 471.
Although the third party beneficiary clearly cannot sue for damages [*51] for breach of contract, because he has no rights springing from the contract, Megarry, V-C suggests that he can nonetheless sue for damages in tort for its negligent performance.
He has a right, it is said, springing from the relationship between him and the negligent contracting party which is brought about or created by the contract. The duty-relationship to the third party is said to arise because the negligent contracting party knew that the other party to the contract intended to benefit the third party and, accordingly, he (the solicitor) owed the third party a duty to exercise reasonable care in the performance of the contract. The cases mentioned above reaffirm the fundamental rule of the common law that the third party beneficiary cannot sue on the contract for damages or specific performance following a deliberate breach of or failure to perform a contract. It follows that the third party beneficiary cannot sue on the contract for damages or specific performance following a negligent breach of or failure to perform a contract.
The American cases to which his Lordship refers in Ross. v Caunters, supra, have to be understood in their American [*52] context. As Windeyer, J. said in Coulls v Bagot’s Executor and Trustee Co. Ltd. (1967) 40 ALJR 471, at p. 484, when referring to the American approach, “There, in most but not all jurisdictions, third persons (both donee-beneficiaries and creditor- beneficiaries as they are called) are now able to sue directly upon contracts made by others for their benefit. This rule, now accepted by the Restatement of the Law of Contracts, was arrived at only after much conflict among courts and commentators.”
But the fundamental common law principle still applies here. In my opinion, it should only be altered, if necessary, by statute.
It would appear that the submission that a duty is owed by a solicitor to a third party beneficiary in tort (and correspondingly that a right is enjoyed by a third party beneficiary in tort), a duty and right respectively arising solely because of the relationship created by or the work to be done under the contract, either runs counter to the fundamental rule or, surprisingly, avoids it. In my view it runs counter to it, for it asserts that rights may flow to a third party as a direct consequence of the contents of the contract, [*53] albeit a right in tort, and no rights are conferred on a third party by reason solely of the contract. They may arise out of work done pursuant to a contractual obligation, but if this is so, it is because of considerations altogether removed from the law of contract.
It is because the work done, of its nature, involves a risk to the health or property of a reliant third party, if the work to be relied on by the third party is not done with reasonable care.
At the outset of his learned judgment, Sir Robert Megarry states: “The solicitors are liable, of course, to the testator or to his estate for a breach of the duty that they owed to him, though as he has suffered no financial loss it seems that his estate could recover no more than nominal damages. Yet, it is said that however careless the solicitors were, they owed no duty to the beneficiary, and so they cannot be liable to her. “If this is right, the result is striking”: Ross v Caunters, [1980] Ch, at pp. 302-3; [1979] 3 All ER 580, at pp. 582-3.
My intuitive reaction to the above proposition differs from that of his Lordship.
Much later in his judgment, his Lordship said, at ([1980] Ch) p. [*54] 321; ([1979] 3 All ER) p. 598: “To me, a failure to receive an assured benefit is a loss. If a gift in transit to a donee is destroyed or stolen, I think both English usage and common sense would accept that the donee had suffered a loss, even if the property had not passed.”
If he did suffer a loss, it would be, in my view, damnum sine injuria.
With the greatest respect, I take leave to doubt whether legal common sense does demand the acceptance of the proposition that a donee loses a thing of which he never had possession and to which he never had right or title: see Margarine Union GmbH v Cambay Prince Steamship Co., [1969] 1 QB 219. A loss demands that there should be a change of conditions resulting in detriment, and is usually associated with a deprivation of possession or of title. Looking at the first of his main conclusions, Megarry, V-C placed store upon the resolution of the somewhat vexed, though popular, question whether a solicitor, who has a contract with his client, can be sued by the client for damages for the tort of negligence. His Lordship apparently saw some connection between a possible duty of care owed in tort to a client [*55] and a duty of care owed in tort to third parties. In Midland Bank Trust Company Ltd. v Hett, Stubbs and Kemp, [1979] Ch 384, Oliver, J had held that a solicitor was liable to his client in tort for negligence. Megarry, V-C, speaking of that decision, expressed in Ross v Caunters, at ([1980] Ch.) p. 308; ([1979] 3 All ER) p. 587 his “most respectful concurrence in an exhaustive and convincing discussion of a most complex subject”.
It would appear that both Oliver, J, and Megarry, V-C were of the view that, since Hedley Byrne v Heller, the law as enunciated in Groom v Crocker, [1939] 1 KB 194 “was not law”.
The decision of the Court of Appeal in Groom v Crocker, supra, was not referred to in Hedley Byrne v Heller. Groom v Crocker has been applied in cases decided after the Hedley Byrne decision: see Clark v Kirby-Smith, [1964] Ch 506; Cook v Swinfen, [1966] 1 All ER 248; [1967] 1 All ER 299; Heywood v Wellers (A Firm), [1976] QB 446, at p. 461.
In Belous v Willetts, [1970] VR 45, at p. 46; Gillard, J held that a client’s action against his solicitor “for so-called negligence [*56] in his professional services, lies in contract”. As a consequence of this finding, his Honour struck out a paragraph of the defence, which had alleged contributory negligence. (For an interesting discussion see “Contributory Negligence as a defence to actions for breach of contract”, 55 ALJ 278).
In my opinion, Hedley Byrne v Heller did not overrule nor undermine the foundation of Groom v Crocker. It is still, in my view, the law in Victoria, as we should apply it, until it is overruled.
If no contract can be established between a solicitor and another person, a Hedley Byrne duty of care may arise and be owed by the solicitor to that other person. The Hedley Byrne v Heller principle applies to solicitors in the same way in which it would apply to any other person who fell within the principle of that case. But it was stressed in Hedley Byrne v Heller that it is necessary to establish that a special relationship of proximity exists between the representor and representee, and evidence of knowledge of reliance and reliance in fact will go to establish the “special relationship”. This of course, is said, in Australia, subject to the qualification placed upon the Hedley Byrne principle [*57] by the Privy Council in Mutual Life and Citizens Assurance Co. v Evatt, [1971] AC 793; (1968) 122 CLR 556 (HC); (1970) 122 CLR 628 (PC).
That is not this case: here we have a contract for reward between solicitor and client. Where a contract for reward is expressly or impliedly made between the two, I prefer the view that, subject to any express term of the contract, there will be implied in the contract a term that the solicitor shall exercise due care and professional skill in the performance of his duties under the contract. Spondet peritiam artis et imperitia culpae adnumeratur. He solemnly promises to exercise the skill of his profession, and by failing to exercise it is accountable for his fault: (i) Bean v Wade (1885) 2 TLR 157, at pp. 158-9: (ii) Hughes v Tivisden (1886) 55 LJ Ch 481; (iii) Bowen v Blair, [1933] VLR 398; (iv) Sutcliffe v Thackrah, [1974] AC 737; (v) Arenson v Arenson, [1977] AC 405, at p. 430; (vi) Aluminium Products (Qd.) Pty. Ltd. v Hill and Ors., [1980] Qld R 362. A contract is not a one-sided matter. The solicitor undertakes to perform his side [*58] of a bargain and the client undertakes to perform his. To say that the solicitor is, apart from his contractual duties, bound also by some superimposed duty of care arising, irrespective of the terms, express or implied, of his contract, appears to me to be unwarranted, for it runs counter to the law of contract.
A contract “is a promise or set of promises which the law will enforce”. Winfield Pollock on Contracts 13th ed., p. 1; American Restatement of Contracts, p. 1; Chitty on Contracts 23rd ed., p. 1.
The solicitor is contractually bound to keep his promise. He is not in my opinion bound to do any more. However, this interesting side issue seems to me to have nothing to do with this case.
As between the solicitor’s client and himself, the solicitor’s duties are usually governed by a contract, express or implied. There may be circumstances in which his work will involve the giving of advice, the making of estimates or the like, matters falling outside any contract, but which he knows, or ought reasonably to know, will be relied upon by his client and others and which, if wrong, will affect them financially. In such circumstances, depending upon the facts of any particular [*59] case, a Hedley Byrne v Heller duty of care to others may well arise at common law in tort.
However, if a solicitor who breaches his contract with his client may be sued for damages in tort by his client, I do not follow the reasoning whereby it is inferred that it may be more readily understood that he also owes a third party a separate duty of care.
The two matters appear to me to have nothing to do with one another.
It is quite clear that a person may owe a contractual duty to one person to do something, and in the doing of that very same thing he may at the same time owe a tortious duty of care to another, e.g. Voli v Inglewood Shire Council (1963) 110 CLR 74, at p. 85.
Martin v The Great Indian Peninsula Railway Co. (1867) LR 3 Ex 9 provides the simplest of examples. There, the defendant had contracted with the Indian Government to carry certain baggage belonging to the plaintiff, and whilst doing so the baggage was destroyed through the defendant’s lack of care. The plaintiff sued for damages. The defendant demurred, pleading its contract with the Indian Government. Baron Bramwell said: “The plaintiff says, ‘You [*60] had my goods in your possession and you delivered them wrongly, no matter whether wilfully or negligently: either way you did wrong’. The defendants’ reply, ‘I bargained with someone else to carry them’. But how does this furnish an answer? The contract is no concern of the plaintiff’s; the act was nonetheless a wrong to him. On the demurrer to this plea, the plaintiff is entitled to judgment.”
This case also demonstrates the complete independence of the right of the third party to bring an action for damages from the rights and duties of the contracting parties. But he must first be owed a duty of care, and have a corresponding right.
However, in Midland Bank v Hett, Stubbs and Kemp, [1979] 1 Ch, at p. 432, Oliver, J expressed the view that Hedley Byrne v Heller and Partners “establishes a general duty arising by law from a relationship of the type therein described however that relationship is established. It is therefore, in my view, inconsistent with the underlying reasoning of Groom v Crocker, [1939] 1 KB 194 and the cases which followed”. Megarry, V-C accepted this view in Ross v Caunters, [1980] 1 Ch 297; [*61] [1979] 3 All ER 580.
Then by a process of extrapolation (that I do not follow) his Lordship held that, either by an “extension of the Hedley Byrne principle or more probably by an application of Donoghue v Stevenson”, a common law duty of care was owed by a solicitor to a beneficiary proposed by his client.
His Lordship’s reluctance to rely solely on the Hedley Byrne principle is readily understandable. In that case, the House had stressed the need to find a “special relationship” which was “equivalent to contract”, or equivalent to “an agreement or undertaking to be careful”: (i) per Lord Reid, [1964] AC 465, at p. 492; (ii) per Lord Morris, at pp. 503-4; (iii) per Lord Hodson, at p. 514; (iv) per Lord Devlin, at pp. 522 and 529-30; (v) per Lord Pearce, at p. 539.
In that case, both the “undertaking” of responsibility by the defendant and the “reliance” of the plaintiff on the defendant were vital to the decision. And most importantly, because the “undertaking” was qualified by a disclaimer, the hypothetical duty did not in fact arise.
Similar approaches had been evident in the judgments in Banbury v Bank of Montreal, [1918] AC 626, at p. 654; [*62] Nocton v Lord Ashburton, [1914] AC 932, at p. 972; Donoghue v Stevenson, [1932] AC 562, at pp. 603, 619 and 620.
But there was no such “undertaking” of any responsibility by the solicitor here. He promised his client to draw a document and have it properly executed. He breached that promise and was liable for the consequences of that breach.
Finally, there was no reliance placed on the solicitor by the beneficiaries. They did nothing at all. They were, so far as the evidence goes, oblivious of the terms of the will, and oblivious of the existence of the solicitor. They ventured nothing in reliance upon the solicitor’s skill.
Accordingly it does not seem possible to equate the facts of the present case with those of Hedley Byrne v Heller, and the ratio of that case appears to be altogether removed from the present case.
Looking at the ratio of Donoghue v Stevenson, there was clearly no physical propinquity here and no foreseeable risk of injury to the person or property of another.
Is there between the solicitor and the nominated beneficiary such “proximity” (in the “metaphysical” sense) as to give rise to a duty of care?
In Ross v Caunters it was the fact that it [*63] could be foreseen that the beneficiary might lose a so-called “benefit” which led his Lordship to conclude that there was such “proximity”.
The assumption is made that a gift to a beneficiary in a will is a “benefit” to him or her. I have already pointed out that it may not be. In the present case, the testator’s widow, according to the invalid will, was given a right of residence or possibly a life interest in the subject land. But, by an earlier will, which was in fact proved, she received a gift of an estate in fee simple. Did the solicitor know of this? On an intestacy, she would have benefited similarly. So that what may have appeared to a “benefit” to her in the invalid will, was in fact a taking away or lessening of what otherwise she would have received–and did in fact receive.
Should a solicitor know to whom he owes a duty? If the solicitor, on being given his instructions by the client, had deliberately, but for some misguided reason dissuaded him from making a will in the proposed form, I doubt whether anyone would suggest that a duty of care owed by the solicitor to the proposed beneficiary would have arisen or been breached. If the solicitor had failed in his [*64] misguided endeavour to dissuade his client from making the proposed dispositions, and had then deliberately or negligently delayed drawing the will according to instructions, and the client died before his wishes could be given testamentary effect, would a duty of care, owed by the solicitor to the proposed beneficiary, have arisen and have been breached? I think not. There was no relevant proximity.
The receipt of a gift by the terms of the will may cause a beneficiary to be disqualified from receipt of other “benefits” to which, without the testamentary gift, he would have been entitled. But a solicitor may know nothing of this. Is it sufficient that he knows that there may be some persons who could be disadvantaged as a consequence of his negligent (or deliberate) breach of his contract with his client?
If the client simply wished to disinherit X by a codicil without caring who took as a consequence, would a duty of care to ensure that this was properly done be owed by the solicitor to those who in fact would be benefited (enriched) by the disinheritance? And if the codicil was invalid, by reason of the solicitor’s failure to exercise professional skill, and X took his gift, [*65] would the solicitor be liable to pay as damages for breach of duty to those others, the value of the gift given to X? They could be persons named in the will or persons altogether outside the will, e.g. in the case of powers of appointment.
In examining the way in which this supposed duty of care might be said to arise as a consequence of the so-called “proximity” of the solicitor to the named or hypothetical beneficiaries, it appears to me highly unlikely that any such proximity, as contemplated in the authorities, exists.
In Ross v Caunters, [1980] 1 Ch 297, at p. 309A; [1979] 3 All ER 580, at pp. 587-8, Megarry, V-C said: “When a solicitor undertakes to a client to carry through a transaction which will confer a benefit on a third party, it seems to me that the duty to act with due care which binds the solicitor to his client is one which may readily be extended to the third party who is intended to benefit.”
I have already stated my reasons why I think a third person cannot rely upon any contract between solicitor and client. If a tortious duty is owed because of the relationship between the solicitor/client, I am [*66] not able to see how it “may readily be extended to the third party”. This is a non sequitur as a matter of law.
Again it seems to me that the necessary emphasis in the above passage from Ross v Caunters on the fact that the transaction is one “which will confer a benefit on a third party” points to the inherent heresy of a jus quaesitum tertio arising out of contract.
In Donoghue v Stevenson the contract between the manufacturer and the retailer had nothing to do with the duty which the manufacturer was found to owe to the consumer. It was of the essence of the “proximity” which was found to exist there that the manufacturer intended that his product be consumed by a consumer in the form in which it left him, and that he knew that the consumer would rely (as the consumer did) on the purity of the product put forth, and not subject it to intermediate examination. See also: Grant v Australian Knitting Mills, [1936] AC 85. But there is no such reliance or proximity in the present case, and the presumed effect of the terms of the contract between the solicitor and client appears to be relied on as the determinant whether or not a duty of care is owed to a third party by the solicitor. [*67] Because the client intended to confer a benefit, it is said that a duty arose. If he had not intended to do so, no duty arose. If a duty is owed by a solicitor to a third party (whether beneficiary or not) it cannot depend on the intention of the solicitor’s client. At best, the contract may demonstrate the nature of the work that the solicitor undertook to do, and how it may, if badly done, injure third parties who rely on it, and may be expected to do so.
In Voli v Inglewood Shire Council (1963) 110 CLR 74, at p. 85 Windeyer, J said (my underlining): “First, neither the terms of the architect’s engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, [*68] he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put on it.”
This passage, in my respectful opinion, correctly states the law.
The reason that the duty arose in that case was that the architect could foresee that persons outside the contract would act in reliance upon the safety of the stage to be erected pursuant to his contractual design, and that they would be likely to be physically injured if his work was performed without due professional care and skill. The architect knew that the stage he designed was to be erected to carry people who would rely on it. The same line of reasoning is found in Donoghue v Stevenson, where the ginger beer was manufactured to be drunk, and being contained in an opaque bottle, the consumer relied on the manufacturer (as the latter knew he would) to exercise due care to avoid deleterious additives.
These elements of reliance, which in my opinion were material to the relevant “proximity” giving rise to a duty of care, are absent in the present case. The present case is one, as Megarry, V-C points out, in which what he characterized as “financial loss is directly caused by the solicitor’s [*69] breach of that duty, and reliance by the plaintiff is irrelevant”: [1980] 1 Ch 297, at p. 313; [1979] 3 All ER 580, at. p. 591. But this statement may beg the question, Is there any duty? Reliance is one of the vital considerations to look for before answering this question; not after it has been answered by assumption. His Lordship went on to say: “If the duty of care is imposed on what I may call pure Donoghue v Stevenson principles, and the loss occurs without being dependent on any reliance by the plaintiff, then I cannot see how the presence or absence of reliance by the plaintiff can affect liability: see for instance Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, 413.”
But Lord Atkin was at pains in Donoghue v Stevenson to stress the importance of “reliance” as a vital element assisting to establish that a duty existed. Having quoted from Brett, MR (dissentient) in Heaven v Pender (1883) 11 QBD 503, at p. 509, he said (my underlining): “I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be ‘used immediately’ [*70] and ‘used at once before a reasonable opportunity of inspection’…–in the class of case now before the Court, I cannot conceive any difficulty to arise. A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer”: [1932] AC 562, at p. 582. In his final formulation of the proposition, his Lordship said (my underlining): “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”: [1932) AC 562, at p. 599.
What then do other authorities say on the subject? Robertson v Fleming (1861) 4 Macq 167, a case decided in the House of Lords, is a case directly in point. The appellant, a law agent in Glasgow, was alleged by the respondents [*71] to have been employed “for their behoof” in his professional capacity to complete a transaction, which, by his assumed negligence, was not completed. The defence was a denial of the employment. Briefly, the facts were that a grocer named Hamilton borrowed money from some money lenders who required sureties. The respondents agreed to be sureties, being aware that the grocer, Hamilton, had certain leasehold property worth more than the sum borrowed, and Hamilton agreed with them to complete the necessary security over this property in favour of the respondents. Hamilton engaged the appellant to prepare the security. This the appellant did, but he “omitted to intimate the assignation to the landlord”, keeping the security himself and he did not tell the respondents that it was necessary to give notice to perfect their right. On Hamilton’s subsequent bankruptcy, the security which the respondents relied on was accordingly worthless and they sued the appellant, and on certain issues being directed for trial, a verdict was returned for the respondents. The matter eventually came before the House, and on the merits, the appellant contended that without privity of contract there could be [*72] no liability.
The Lord Chancellor, Lord Campbell, after stating that there was no privity of contract established, and that the solicitor was not a “public functionary”, said (underlining mine): “I never had any doubt of the unsoundness of the doctrine…that A employing B, a professional lawyer, to do any act for the benefit of C, A having to pay B, and there being no intercourse of any sort between B and C,–if through the gross negligence or ignorance of B in transacting the business, C loses the benefit intended for him by A, C can maintain an action against B, and recover damages for the loss sustained. If this were law a disappointed legatee might sue the solicitor employed by a testator to make a will in favour of a stranger, whom the solicitor never saw or before heard of, if the will were void for not being properly signed and attested. I am clearly of the opinion that this is not the law of Scotland, nor of England, and it can hardly be the law of any country where jurisprudence has been cultivated as a science.” Lord Cranworth reiterated these sentiments at ((1861), 4 Macq.) pp. 184-5, and Lord Wensleydale stated, at p. 199: “It is said, however, that by the law of [*73] Scotland, quite independently of the question who the contracting parties are, whenever an attorney or agent is employed by anyone to do an act which when done will be beneficial to a third person, and that act is negligently done, an action for negligence may be maintained by the third person against the attorney or agent. I cannot think that any such proposition is made out to be part of the law of Scotland.”
Lord Chelmsford stressed the importance of deciding to whom the solicitor owed a duty, pointing out that if the bond and assignation had in fact been notified to the landlord, the rights of one Ballantyne, to whom the client Hamilton had already and earlier “granted an onerous assignation in absolute terms” (and of which the defender solicitor knew), would have been defeated: see (4 Macq.) pp. 171 and 210. The case provides a good example of the problem of conflicting duties, should one once countenance that a solicitor owes an “incidental duty” to third parties.
In Dutton v Bognor Regis Urban District Council, [1972] 1 AC 373, at p. 394, Lord Denning, MR the modern champion of the jus quaesitum tertio, considered the “Position of the Professional Adviser” and when touching [*74] on counsel’s submission in the case said: “He said that such a professional man owed no duty to one who did not employ him but only took the benefit of his work… To support this proposition, Mr Tapp brought out a long forgotten case in the House of Lords called Robertson v Fleming (1861) 4 Macq 167. It was a Scottish case about the responsibility of a lawyer. Lord Wensleydale said, at p. 199: ‘He only, who by himself, or another as his agent, employs the attorney to do the particular act in which the alleged neglect has taken place, can sue him for that neglect,….’ “That observation was made in 1861 when the legal profession laboured under the fallacy which I have already mentioned–the fallacy by which it was thought that, when one contracting party was negligent, no one could sue him for that negligence except the other contracting party. That doctrine did not avail manufacturers after 1932–Donoghue v Stevenson, [1932] AC 562; nor did it avail professional men after 1964–Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [1964] AC 465. In neither of these cases, strangely enough, was Robertson v Fleming (1861) 4 Macq 167 [*75] referred to. But the result of them is to lessen the authority of that case and the observations in it.”
I have already indicated that in my opinion the ratios of Donoghue v Stevenson and Hedley Byrne v Heller depended on finding knowledge of reliance and reliance in fact and, in the latter case, a “special relationship” between the representor and representee, a relationship “akin to contract”. The knowledge of the representor that in the circumstances the representee would, as he did, rely on his statement and act to his detriment, if it was not correct, was, as Lord Denning himself has pointed out, vital to the decision in Hedley Byrne v Heller. In the absence of contract, something “equivalent to contract” was found to fill the gap. A Hedley Byrne v Heller duty of care does not arise from or out of any contract, but rather in the absence of any contract with the person to whom the duty is owed. A contract will triumph over it, as did the disclaimer in that case.
In Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, at pp. 394-5 Lord Denning, MR said: “Nowadays since Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [1964] AC 465 [*76] it is clear that a professional man who gives guidance to others owes a duty of care, not only to the client who employs him, but also to another who he knows is relying on his skill to save him from harm. It is certain that a banker or accountant is under such a duty. And I see no reason why a solicitor is not likewise. The essence of this proposition, however, is the reliance. In Hedley Byrne v Heller it was stressed by Lord Reid at p. 486, by Lord Morris of Borth-y-Gest at pp. 502-503 and by Lord Hodson at p. 514. The professional man must know that the other is relying on his skill and the other must in fact rely upon it.” This would appear, with the greatest respect, to be an impeccable statement of the law.
It should not be thought that, although all members of the House in Robertson v Fleming were quite clear that a third party to a contract cannot sue for breach of the contract, they were unaware that third persons might, by something akin to contract, be owed a duty, for the Lord Chancellor stated, at (4 Macq.) pp. 177-8: “But if in a transaction of borrowing and lending money on security, A the borrower, employs B, a professional lawyer to transact the business, in [*77] which both A the borrower and C, the lender, have their separate interests, and for which A alone is to pay B, although C has no personal intercourse with B, if from the instructions expressly given by A to B, or from the usual course in which such business is conducted, B knows that he and no other professional lawyer is employed in the transaction, and that B is to act both for A and for C in preparing the security, I apprehend that a jury from this employment of B might infer an undertaking from B to C to conduct the transaction on his part with reasonable skill and diligence.”
In the present case, the question appears to me to be whether there is any relevant proximity giving rise to a duty of care to a third person, arising as a consequence of a contract between A and B and in the absence of any undertaking to or reliance by C.
In Dutton v Bognor Regis Urban District Council, supra, Lord Denning, MR when considering whether a duty was owed by an inspector of foundations of a house to a subsequent purchaser said, at ([1972] 1 QB) p. 395 “It is at this point that I must draw a distinction between the several categories of professional men. I can [*78] well see that in the case of a professional man who gives advice on financial or property matters–such as a banker, a lawyer or an accountant–his duty is only to those who rely on him and suffer financial loss in consequence. But in the case of a professional man who gives advice on the safety of buildings, or machines, or material, his duty is to all those who may suffer injury in case his advice is bad.”
In this latter category his Lordship placed analysts, inspectors of lifts, architects and engineers. These professional men may, he said, be liable “not because those injured relied on him, but because he knew, or ought to have known, that such persons might be injured if he did his work badly”. He found support for this view in the American case Nelson v Union Wire Rope Corporation (1964) 199 NE Rep (2d) 769, where a lift inspector was held to owe a duty to all those who might be “endangered” by his negligently given certificate of safety. His Lordship was considering physical injury or injury to property. It seems that in his Lordship’s view a different test is to be applied, depending on whether the evil likely to be done is on the one hand, purely [*79] economic or on the other hand, physical. It is not surprising that in Sparham- Souter v Town and Country Developments (Essex) Ltd. and Anor., [1976] QB 858; [1976] 2 All ER 65, at p. 68, he said, “In recent times the law of negligence has been transformed out of all recognition”.
But even on the basis of the rationale applied in Dutton v Bognor Regis Urban District Council, supra, by Lord Denning, the plaintiffs in the present case would fail, for reliance is altogether absent, and there was no damage to person or property of the plaintiffs to be apprehended.
The House of Lords in Anns v Merton London Borough Council, [1978] AC 728; [1977] 2 All ER 492, approved Sparham-Souter v Town and Country Developments (Essex) Ltd., supra, and explained and applied Dutton v Bognor Regis Urban District Council, supra. All of these cases were concerned with the Limitation Act (Eng.) and with public officials exercising statutory powers or duties. Similar considerations of the circumstances in which a duty is owed by such officials are found in Home Office v Dorset Yacht Co. Ltd., [1970] [*80] AC 1004; [1970] 2 All ER 294 and East Suffolk Rivers Catchment Board v Kent, [1941] AC 74; [1940] 4 All ER 527.
It has been recognized as long ago as that “long forgotten case” (Robertson v Fleming (1861) 4 Macq 167, at p. 177) that “public functionaries” stand in a special category. In my opinion, these cases, dealing often with limitation issues and raising issues as to the bona fide discretionary actions of public officials, as to the purpose for which they have been invested with authority, as to the reliance of the public on the responsible performance by them of their statutory or regulatory powers or duties, and as to the risk of “endangering” life, limb or property, do not lay down principles of much assistance when considering whether the solicitor in the present case was in a “duty-situation” apropos the beneficiaries in his client’s proposed will: see Lord Morris of Borth-y-Gest in Dorset Yacht Case, [1970] AC 1004, at p. 1038.
In the most recent of the “landmark” cases, Anns v Merton London Borough Council, [1978] AC 728, Lord Wilberforce in a judgment with which Lord Diplock, Lord Simon [*81] of Glaisdale and Lord Russell of Killowen expressed agreement said, at pp. 721-2: “The question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter– in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.”
Counsel for the respondents in this appeal relied chiefly on this case.
Assuming for the purpose of the first question that the beneficiary is a “person who has suffered damage”, it is my view that for the reasons already expressed, there is not on the facts of the present case, a “sufficient relationship of proximity” to be found between the proposed beneficiary and the solicitor to give rise to a duty of care owed by the [*82] solicitor to the beneficiary. I intend now to turn to look at the question, Has any relevant “damage” been suffered? This may be a question which must be decided independently of the issue whether in tort one can recover damages for “economic loss”? This latter issue was considered in SCM (United Kingdom) Ltd. v Whittall (WJ) and Sons Ltd., [1971] 1 QB 137; Spartan Steel and Alloys Ltd. v Martin and Co. (Contractors) Ltd., [1973] QB 27; French Knit Sales Pty. Ltd. v N Gold and Sons Pty. Ltd., [1972] 2 NSWLR 132 and authoritatively decided by the High Court in Caltex Oil (Australia) Pty. Ltd. v The Dredge “Willemstad” (1976) 136 CLR 529.
The question which I wish briefly to consider is: “Has the ‘disappointed beneficiary’ suffered ‘damage’ which is recognizable in law as such?” For damage actually done is the gist of the action on the case. Ratcliffe v Evans, [1892] 2 QB 524, at pp. 532-3 per Bowen, LJ In the first place, neither his bodily health nor mental health has been affected. Next, his property remains undamaged.
In Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, at p. 413 [*83] Stamp, LJ was prepared to assume for the moment that Robertson v Fleming (1861) 4 Macq 167 supported the proposition that a person has no duty so to act as to confer an advantage on his neighbour. “The proposition assumes that what C loses is an intended benefit and his position, after the act of carelessness by A is precisely the same as it was before”: see ([1972] 1 QB) at p. 413. Is that assumption consonant with the facts here?
It may be said that a windfall has been snatched in limine from the respondents. Nothing in possession has been removed or impaired. Nothing earned or to be earned has been lost. No interest in property has been touched. Nothing transferable in the eyes of the law has been affected. Is the position of the solicitor different from that of a man C to whom a valuable chattel is given for custody by the owner A with the words, “Look after this for me. I intend to give it to X next week. That’s my present intention.” Next week A, on returning to C to collect the chattel and to give it to X, is told by C that, through his negligence, the chattel has been stolen or lost. Can X sue C? I think not. X had no interest in it recognizable [*84] at law. How is the disappointed beneficiary any different? I do not for the moment see.
A spes successionis is not a title to property and cannot be disposed of by will. It differs from a contingent gift. James v Roe (1789) 3 Term Rep 88; Re Parsons (1890) 45 Ch D 51; Re Ellenborough, [1903] 1 Ch 697; Re Middleton’s Will Trust, [1969] 1 Ch 600, at pp. 607-8; Theobald on Wills, 13th ed., para. 285, p. 103. What we are considering here is not even a spes successionis, which is an expectation or hope of succeeding to property as heir at law or next of kin of a living person, for example, under intestacy provisions.
No legal right enjoyed by the beneficiaries has been infringed. The plaintiffs were volunteers whom equity would not assist; nor would equity perfect the imperfect gift. As Dixon, J said in Brunker v Perpetual Trustee Co. (Ltd.) (1937) 57 CLR 555, at p. 599: “Being a volunteer, an intended donee cannot obtain equitable remedies against the donor compelling him to give legal effect to his intention to give.”
Looking at the property [*85] in question, it has not suffered. It has not been harmed in any way. It has devolved, as the testator devised it, to the testator’s widow, who might, in any event, have been entitled to receive it on a PtIV application under the Administration and Probate Act 1958 (Vic.). No one knows what she intends to do with it, either during her lifetime or on her death. Nor do we know how it would devolve on her dying intestate, and possessed of it. Megarry, V-C in Ross v Caunters, [1980] 1 Ch 297 stated, at p. 321; [1979] 3 All ER 580, at p. 598, that counsel “bravely contended that in this case the plaintiff had suffered no financial loss. Nothing of hers had been taken away or destroyed; she had merely failed to get something extra. All that she had lost was a mere spes. The point, he said, was devoid of authority; and I am not surprised…In this case, but for the negligence of the defendants, the plaintiff would have received a share of the residue of an ascertainable amount: that amount is no mere spes. It is, indeed, the amount of the plaintiff’s loss. I do not think that the expression ‘loss’ can be confined to deprivation. To me, [*86] a failure to receive an assured benefit is a loss. If a gift in transit to a donee is destroyed or stolen, I think both English usage and common sense would accept that the donee has suffered a loss even if the property had not passed. In saying that, I do not forget Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, 413. In my judgment, there is nothing in this point.”
I find myself unable to share his Lordship’s assurance.
At the time when the assumedly negligent act was performed by the solicitor, namely when the will was attested invalidly, it is I think beyond argument that, if the negligence had been then and there discovered, no action by the beneficiary against the solicitor could have been brought for the tort of negligence. It is true that the solicitor’s client, the testator, could have sued him for breach of contract, but as no damage had been suffered by the beneficiary, the assumed tort of negligence apropos the beneficiary was incomplete.
The tort of negligence may be described as the infliction of damage as a result of a breach of duty of care owed by the defendant to the plaintiff: Lochgilly Iron and Coal Co. v McMullen, [*87] [1934] AC 1, at p. 25, per Lord Wright.
The “kind of damage” recognized by law clearly includes physical injury to person and property. But purely pecuniary loss is recognized to a very limited extent. Clerk and Lindsell on Torts, 13th ed., para . 859 (cases to note 44).
In Caltex Oil (Australia) Pty. Ltd. v The Dredge “Willemstad” (1976) 136 CLR 529 all members of the Court thought that the plaintiff, who suffered economic loss because the pipeline belonging to another was negligently damaged by the defendant’s dredge, could recover damages.
Property damage to another was caused; but the plaintiff individually, and not merely as a member of an ascertained class, was one whom the defendant knew or ought to have known would be likely to suffer economic loss as a consequence: per Gibbs, J, at ((1976), 136 CLR) p. 555, per Mason, J, at p. 593. There was accordingly a sufficient degree of proximity: per Stephen, J, at p. 558.
The case demonstrates different approaches to the problem in question.
In those cases in which economic or purely pecuniary loss has been recognized as a kind of damage sufficient to constitute this element in the tort of [*88] negligence, the loss has always been of a kind that would have been recoverable if it had been incurred as a consequence of a direct physical injury to person or property, e.g. loss of earnings or profits or costs and expenses directly occasioned by the negligently inflicted injury to person or property. In the present case the damage allegedly constituted by the loss of a testamentary gift does not fall into any category of legally recognized damage of which I am aware.
Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [1964] AC 465; [1963] 2 Al ER 575 has opened the way for the recognition of new duty-situations where pecuniary loss alone constitutes the damage. But it has not, as I see it, affected the principle that a duty-situation recognized at law must be made out, and that pecuniary loss recognized at law must be established: cf. Konstantinidis v World Tankers Corporation, The World Harmony [1967] P 341, at pp. 361-2; Weller and Co. v Foot and Mouth Disease Research Institute, [1966] 1 QB 569.
The action “per quod” for loss of services is an anomaly and is strictly confined to its present limits. Simply by way of example, I refer to the [*89] case of Attorney-General for NSW v Perpetual Trustees Co. Ltd., [1955] AC 457 (PC). The Governor of New South Wales unsuccessfully claimed damages from a person who had negligently injured a policeman, and thus deprived the plaintiff of his services.
Lord Simonds delivered the opinion of the Board and said, at ([1955] AC) p. 484: “…it is fundamental (as Rich, J pointed out in Quince’s Case ((1944) 68 CLR 277, 240) that the mere fact that an injury to A prevents a third party from getting from A a benefit which he would otherwise have obtained, does not invest the third party with a right of action against the wrongdoer (see Societe Anonyme de Remorquage a Helice v Bennetts, [1911] 1 KB 243).”
This passage is referred to by Widgery, J, who reaffirmed its statement of principle in Weller and Co. v Foot and Mouth Disease Institute, [1966] 1 QB 569, at p. 584, and his Lordship went on to say, at p. 585, that: “the world of commerce would come to a halt and ordinary life would become intolerable if the law imposed a duty on all persons at all times to refrain from any conduct which might foreseeably [*90] cause detriment to another, but where an absence of reasonable care may foreseeably cause direct injury to the person or property of another, a duty to take such care exists.”
In the present case, the beneficiary had no legally recognized interest in the devise, at any relevant time. He was not even entitled to expect its “benefit”.
In Margarine Union GmbH v Cambay Prince Steamship Co., [1969] 1 QB 219 the plaintiffs had accepted delivery orders relating to a quantity of copra, thereby acquiring title thereto when the goods were unloaded, but not earlier. The copra was damaged by cockroaches on the ship, through the admittedly negligent failure of the defendant shipowners to fumigate the vessel. The question for the court was, “Had the plaintiffs a good cause of action against the defendants in tort in respect of damage to the copra?”
Plaintiffs’ counsel relied on Donoghue v Stevenson and Hedley Byrne v Heller, submitting that to argue that no remedy lay because the plaintiff had no property in the goods at the time when they were damaged was to argue an artificial limitation which, on the principle of these cases, was out of sympathy with the modern [*91] approach of the courts.
Roskill, J stated the plaintiffs’ argument to be that “since at least Donoghue v Stevenson and still more since Hedley Byrne’s Case it was clear that foreseeability alone was the test, so long only as there was physical damage to goods which ultimately became the property of or came into the possession of the plaintiffs and so long as the plaintiffs or others in the position of the plaintiffs were not too far removed from the range of foreseeability or proximity as to be outside the principles laid down in Donoghue v Stevenson and in Hedley Byrne’s Case”: [1969] 1 QB 219, at p. 235. Following a thorough examination of the authorities his Lordship rejected the argument, as being contrary to principle, the principle being that even when a person can foresee that his negligent act will cause damage to the consignee of goods ([1969] 1 QB 219, at p. 233), the consignee, on acceptance of the goods, cannot bring an action for damages in tort for negligence if he had no legal or possessory title or right to the goods at the time of the negligent act causing damage or at the time of the damage itself. See also [*92] Simpson v Thomson (1877) 3 App Cas 279, per Lord Penzance, at pp. 289-90.
In the present case it is not even suggested that the plaintiff beneficiaries had a legal title or right or expectation to the subject land either at the time that the invalid will was made, or at the date of the testator’s death. But Megarry, V-C thought that on the death of the testator the tort of the beneficiary, inchoate until then, and able to be undone (if the testator made a new will or remade the invalid will) was complete, and that the measure of damage was the value of the proposed testamentary benefit. I do not accept this approach. It runs counter to principle.
It was submitted that the finding of new duty-situations is a matter of “policy” and that this Court should find such a duty-situation here. But it has also been said that judges are better at expounding the law than they are at expounding “policy”. It is therefore with some trepidation that I make brief reference to matters which might be considered to be matters of “policy”.
A great deal of the work of a solicitor must affect persons with whom his client is related, whether by contract, in business, by [*93] relationship or by marriage. Mistakes made may involve others, either assisting the client and disadvantaging others, or vice versa. I have mentioned that in the present case the client’s widow was advantaged by the solicitor’s mistake. His nephews, (the respondents) were not. No doubt in matters concerning wills countless combinations and permutations could occur, depending on the rub of the green. The apparent simplicity of the present case, from a factual viewpoint, should not be allowed to obscure the truth of the proposition that, once it is acknowledged that a duty-situation arises here, many difficult and more complex situations must follow. Where is the line to be drawn? Is the solicitor’s duty to third parties to be confined to named beneficiaries in a will? Or would it extend to classes? Would the solicitor’s duty to third parties require him to advise the testator of the provisions of PtIV of the Administration and Probate Act 1958 (Vic.), so that the testator by an informed distribution of his assets, did not disadvantage those whom he particularly intended to benefit? Should the solicitor be excused from a finding of negligence if, as in the American case (Lucas v Hamm (1961) 11 Cal Rpter 727), [*94] the jury advocate (now Judge) thought that a solicitor should be excused for not understanding the rule against perpetuities and its implications. Would the solicitor who, through incompetence, persuaded the testator to leave his assets in a certain way, intended by the testator to benefit a third party (but which as it turned out did not do so), be liable to that third party in an action for damages for negligence?
Would the solicitor who warned the client that the gift might fail, but whom the client nonetheless instructed to draw the will in a particular way, avoid liability to the third party? And would a disclaimer of any responsibility for negligence to the client avail the solicitor in an action by the third party for negligence? Would it be necessary to notify the beneficiaries of the disclaimer? Would the client allow this?
Megarry, V-C decided that the duty owed by a solicitor to a third party beneficiary is to “use proper care in carrying out the client’s instructions for conferring the benefit on the third party”: Ross v Caunters, [1980] 1 Ch 297, at p. 322. Does “proper care” include advising the client with professional care and skill [*95] as to the effect and likely consequences of the gift apropos all possibly affected parties or does it require merely the formal implementation of the client’s wishes, however odd they may be, and whatever be the likely legal result of the gift to the third party?
In Robertson v Fleming (1861) 4 Macq 167 the law agent knew of a prior charge of similar nature granted by his client over the subject property, and knew that notice of assignation of the subsequent charge would defeat the prior charge, which also was unnotified to the head lessor. Where did his duty lie?
Somewhat similar considerations may well have arisen in the present case. The widow of the testator received an estate in fee simple in the matrimonial home and land under the earlier will, and the question arises: “Ought the solicitor to have advised his client that the proposed gift to his nephews (the plaintiffs), subject to a right of residence in the matrimonial home enuring to the benefit of the widow, might be expected on his death to call forth a PtIV application by the widow?”
Is the solicitor entitled with impunity to advise his client against benefiting a named third party? [*96]
If solicitors are under a duty of care to third party volunteers, then, a fortiori, it would seem that the duty must also be owed to third party purchasers or vendors for value from and to their clients (whether represented or unrepresented), to third party grantees of easements, rights of way, to donees of gifts, and to all those third parties who would probably be benefited by any legal course proposed to be taken by the client. Does it extend to company transactions? It is difficult to see why it should be otherwise, if the duty arises simply because the third party “is a person within his direct contemplation as someone who is likely to be so closely and directly affected by his acts or omissions that he can reasonably foresee that the third party is likely to be injured by those acts or omissions”: Ross v Caunters, [1980] 1 Ch 297, at p. 323A.
The acceptance of the proposition that a duty of care arises in the circumstances of this case would mean that a solicitor, instructed by A to draw a deed of gift in favour of X, for execution by A before he flew to Rio, would, if the solicitor deliberately or negligently failed to draw the deed for execution, [*97] be liable in damages to X, if A died in Rio.
What would be the position in the following circumstances? A, the client, desired to give a porcelain vase in his possession to B, the donee, by deed of gift to take effect immediately, and A engaged C his solicitor to draw the deed. C does so but fails to tell A to seal it (or, to deliver it). Some time later, A repents of his largesse and learning of the need to seal (or deliver) the document, instead tears it up? Is the donee entitled to sue the solicitor for breach of a duty of care he owed? Could it be successfully submitted that an expert wrapper of Ming vases would be liable to a named donee in damages if, after contracting with the donor to perfect what he was informed was a gift by wrapping it and delivering it to the oblivious donee, he carelessly dropped and smashed the vase at the donor’s home–or at any time before delivery? I think not.
Testing the proposition by the examples that come to mind reinforces me in the view that I have formed that in the circumstances of the present case there is neither damnum nor injuria demonstrated, and that, as a matter of policy a new duty-situation should not be found.
When turning [*98] to consider what in ordinary circumstances a reasonable solicitor drawing a will would contemplate, I doubt that he would ever imagine that he owed a duty of care to beneficiaries mentioned in his instructions taken from his client. Nor would he recognize (to use the words of Brett, MR in Heaven v Pender as applied by Lord Atkin in Donoghue v Stevenson) that “if he did not use ordinary care and skill in his conduct with regard to those circumstances he would cause danger of injury to the person or property” of the beneficiary.
If, however, it be thought that the duty issue in this case involves an exercise of the creative functions of the judiciary in controlling the area of legal responsibility for negligence, having regard both to the nature of the interests infringed and the type of conduct complained of, (Fleming on Torts, 4th ed., p. 136), there is abroad a philosophy, (sometimes termed policy), which espouses the spreading of losses through the community, by requiring insurance to be effected against all manner of risks, I do not believe that this is part of the judicial function of this Court.
Courts of last resort are more accustomed and better situated to engage in [*99] such “policy decisions” than this Court is.
In my opinion an application of the law as it has developed and been expounded to date leads to the conclusion that this appeal should be allowed.
Finally, and without dilating on the matter, if damages are to be awarded, the measure of damage must be the same for each plaintiff. Each has lost an equal one-third share in a piece of real estate. If there was, as seems to have been strangely suggested, no market in Victoria for the sale of a reversionary interest such as we are considering, the loss was suffered none the less at the date of death of the testator–not at some future date such as the notional date of death of the testator’s widow.
It would only be in the latter circumstance that an assessment of the discounted amount to be paid to each plaintiff at the time of trial would take account of the notional tax to be paid by each of the plaintiffs on the income to be earned on any lump sum to be awarded.
But the sum to be awarded as damages is a sum of present day money, not money as at the date of death, and the value of the loss would take account of the fact that the share in the asset lost at the date of death was worth [*100] $ 15,333 at the date of the trial postponed in enjoyment for 14 odd years. There would be no need to “grope in the dark” and the Court would recognize this fact which was consequent on property and money values at the date of trial. Whatever $ 15,333 postponed for 14 odd years is worth when awarded today, that is the most that could be awarded. However, my opinion is that the appeal should be allowed on the first grounds argued, namely that no duty care existed in the circumstances of this case and that no damage recognizable at law has been suffered.
McGARVIE, J: Joseph William Byrne (“the client”) retained and instructed the appellant solicitor (“the solicitor”) to prepare a will which left a house property to the respondents (“the beneficiaries”) and their mother as tenants in common in equal shares. The client was the brother of the respondents’ mother. The interest of the respondents and their mother in the property was to be subject to the right of the client’s wife to live in the house as long as she wished. The solicitor prepared the will in accordance with his instructions. On 24 August 1973 the solicitor gave the client the will, told him where to sign it and was present [*101] when he did so. The solicitor and another person signed the will as witnesses but neither of them signed in the presence of the client. By s7 of the Wills Act 1958 the will was invalid because the client and the witnesses were not all present together when they signed it. As a result, after the client died, probate of the will was not granted. Probate was granted of an earlier will under which the beneficiaries received nothing.
The beneficiaries brought an action against the solicitor each claiming as damages the value of the interest which would have been received if the will had been valid. At the trial it was not contested that the solicitor had failed to take reasonable care to ensure that the will was properly executed. The defence was that the solicitor was not liable in negligence because he owed no duty of care to the beneficiaries.
The trial judge, Anderson, J, made his own analysis of the law and also followed Megarry, V-C in Ross v Caunters, [1980] 1 Ch 297; [1979] 3 All ER 580 and Burt, CJ in Watts v Public Trustee, [1980] WAR 97. He decided that the solicitor owed the beneficiaries a duty of care and was liable [*102] to them in damages for his negligence.
The value of the house property at the death of the client was $ 26,500. By the time of trial its value was $ 46,000. There was no evidence from a valuer or similar expert as to the value of the interests intended for the plaintiffs, at the death of the client or at the time of the trial, making allowance for the widow’s right to reside in the property. The trial appears to have been conducted by both counsel on the basis that any damages would be to compensate the plaintiffs for not receiving interests which would not in any event have been received until the death of the widow. There was actuarial evidence of amounts which would, if invested, produce particular sums at the end of the widow’s life expectancy. The evidence was that the plaintiff Dearsley had a substantial income but the plaintiff Perry did not have enough to be liable to income tax. The actuaries gave evidence that, having regard to the effect of income tax on income from investments, a larger amount would be needed to produce a particular sum for Mr Dearsley than for Mrs Perry. For this reason his Honour awarded Mr Dearsley damages of $ 9000 and Mrs Perry $ 6425.
The issues [*103] on the appeal are: 1. Whether the solicitor owed the beneficiaries a duty to use reasonable care to ensure that the will was properly executed. 2. If so, whether the beneficiaries have suffered damage. 3. If so, whether the correct measure was applied in assessing damages. Duty of care–first question The approach under the present law to establish whether a duty of care arises in a particular situation has recently been stated with clarity and authority by the majority of the House of Lords in Anns v Merton London Borough Council, [1978] AC 728, at pp. 751-2; [1977] 2 All ER 492, at p. 498 (Anns’ Case) in the words of Lord Wilberforce. The question is to be approached in two stages: “First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.”
In asking whether the relationship was such that in the reasonable contemplation of the alleged wrongdoer carelessness on his part [*104] may be likely to cause damage to the other, one looks at the actual situation in the particular case. The question is whether, objectively, the alleged wrongdoer ought reasonably to have foreseen that his carelessness may be likely to cause damage to the other. “Proximity” and “neighbourhood” mean no more and no less than that. That was the approach of Lord Wilberforce: see ([1978] AC) at pp. 753-4. In The Council of the Shire of Wyong v Shirt (1980) 54 ALJR 283 the High Court considered precisely what has to be foreseen. Policy considerations have no place under the first question. They come in under the second question. If the circumstances were such that the alleged wrongdoer would not reasonably have foreseen the requisite likelihood of damage to the other, the first question is answered “no”. If it is answered “no”, that is an end to the matter. No duty of care exists.
In this case, in my opinion, the first question can only be answered “yes”. The beneficiaries were named and the gift to them was specified in the will which the solicitor prepared and witnessed. It was clearly within his reasonable contemplation that carelessness by him resulting [*105] in the failure of the gift to them would cause them damage. In saying this I am assuming that, in causing by his carelessness failure of the gift to them, he caused them damage. I discuss that later.
The word “proximity” is one which in this area of the law has been used in several distinct and different senses. It is used in the sense that there is proximity where one party ought reasonably to foresee that his carelessness may be likely to cause damage to the other person. This is the sense in which Lord Wilberforce uses it in the passage quoted. It is also used in the sense that there is proximity where in law one person owes a duty of care to the other. Another use of the word is in describing the position of persons who are close to each other or close to an event in terms of physical space or time. The word is apt to mislead. Whenever it is used it is important to have regard to the sense in which it is used.
Duty of care–second question The first question being answered, one goes to the next stage. “Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the [*106] scope of the duty or the class of person to whom it is owed or the damage to which a breach of it may give rise …”: ([1978] AC), at p. 752; ([1977] 2 All ER), at p. 498. The approach of Lord Wilberforce may be regarded as having its origin in the judgment of Atkin, LJ in Everett v Griffiths, [1920] 3 KB 163. It is consistent with the approach of this Court in Pratt and Goldsmith v Pratt, [1975] VR 378 and of the High Court in Caltex Oil (Australia) Pty. Ltd. v The Dredge “Willemstad” (1976) 136 CLR 529 (“the Willemstad Case”). It was adopted in the High Court by the majority in The Council of the Shire of Wyong v Shirt (1980) 54 ALJR 283. See also: Dorset Yacht Co. Ltd. v Home Office, [1970] AC 1004, at pp. 1027 and 1054; (“the Dorset Yacht Case”); and L Shaddock and Associates Pty. Ltd. v Parramatta City Council, [1979] 1 NSWLR 566, at pp. 597-9. The approach of Lord Wilberforce was followed by Megarry, V-C in Ross v Caunters, [1980] 1 Ch 297, Burt, CJ in Watts v Public Trustee, [1980] WAR 97 and Anderson, J in the decision the subject of this appeal. It is an approach [*107] which I regard as consistent with all the recent decisions of the House of Lords, the Privy Council and the High Court.
I accept the submission for the respondents that the approach stated by Lord Wilberforce is the approach which is to be applied in all cases to decide whether a duty of care is owed in the relationships within a particular category and, if so, what the criteria of liability ought to be. I reject the submission for the appellant that the approach is not of general application but is one to be applied only in cases of physical damage. Lord Wilberforce, at ([1978] AC) p. 751, describes the approach as having been reached through the trilogy of cases in the House of Lords: Donoghue v Stevenson, [1932] AC 562; Hedley Byrne and Co. Ltd. v Heller and Partners Ltd., [1964] AC 465; [1963] All ER 575 (“the Hedley Byrne Case”); and the Dorset Yacht Case, [1970] AC 1004; [1970] 2 All ER 294. The Hedley Byrne Case was not a case of physical damage but one of economic damage. After stating his second question the first example which Lord Wilberforce gave of its application was the Hedley Byrne Case. Where, through more than half a century of thought [*108] and experimentation, a fair and practical approach has been worked out, and where it has been clearly stated by a tribunal with the standing throughout the common law world of the House of Lords, in a way which accommodates all the modern leading cases, and which frankly acknowledges the policy component which has always been present, strong grounds are needed before the statement is to be treated as subject to unexpressed qualifications: cf. Samuels v Readers’ Digest Association Pty. Ltd. (1969) 120 CLR 1, at p. 31, per Kitto, J.
Categories Under the second question it is the method of the law to determine for particular categories of relationships whether the duty of care which arises prima facie on an affirmative answer to the first question, or the legal consequences of the existence of that duty of care, ought to be eliminated or restricted. One looks at categories of relationships, not, as under the first question, at the actual situation in the particular case. See: Hargrave v Goldman (1963) 110 CLR 40, at p. 65; the Hedley Byrne Case, [1964] AC 465, at pp. 524-5 and 531; Mutual Life and Citizens Assurance Company Ltd. v Evatt (1970) 122 CLR 628, at p. 632 [*109] (“the MLC Case”); the Willemstad Case (1976) 136 CLR 529, at pp. 565-7. The categories of relationships are not immutably fixed and new categories come into being. The Hedley Byrne Case [1964] AC, at pp. 524-5 and 531, per Lord Devlin. Criteria of liability In deciding, under the second question, whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise, one concentrates on the particular category of relationships.
When the law restricts the ambit of either a duty of care or the liability for its breach, it does so by reference to specific criteria suitable to that particular category: see the Hedley Byrne Case, [1964] AC 465, at p. 532; the Willemstad Case (1976) 136 CLR 529, at p. 576. Each category of relationships has its own set of criteria. In selecting and adopting criteria for a particular category the law fashions what Stephen, J has called a “control mechanism”: see the Willemstad Case (1976) 136 CLR 529, at pp. 572-6. Usually the control mechanism [*110] is designed to avoid the imposition of what is regarded as unreasonably extensive liability in damages. As between the categories, the criteria vary from those imposing slight control to those imposing extensive restrictions on liability. Where the plaintiff claims damages for physical injury to his person or property it may be enough that the injury was caused directly and its risk was reasonably foreseeable by the defendant. The Council of the Shire of Wyong v Shirt (1980) 54 ALJR 283; the Willemstad Case (1976) 136 CLR 529, at pp. 573-4. More complex sets of criteria exist, for example, in the categories of relationships where a plaintiff claims for: nervous shock (Pratt and Goldsmith v Pratt, [1975] VR 378); negligent misstatement (the MLC Case (1970) 122 CLR 628); negligence by a manufacturer (Donoghue v Stevenson, [1932] AC 562); or the common law negligence of a barrister (Saif Ali v Sydney Mitchell and Co., [1980] AC 198).
The relationship the subject of this appeal is in the category of relationships between solicitors and third parties intended by a client to receive a benefit under a document [*111] which the solicitor is retained to bring into existence. This is a case where the factual situation provides the material from which the criteria of liability may be fashioned. See: the Willemstad Case (1976) 136 CLR 529, at pp. 574-5. The criteria which suggest themselves as forming a natural boundary for the purpose of determining liability are these: the solicitor under contract with his client prepared a will leaving shares in an identified property to named beneficiaries but carelessly failed to ensure its proper execution; the client died still intending the gifts to be made to the beneficiaries but due to the improper execution of the will the gifts failed. There is advantage in concentrating judicial thought as far as possible on the precise issues on which the rights of the parties actually before the court depend. It is desirable to avoid stating the position too widely and to leave it to later cases to decide step by step whether the category or the criteria of liability should be widened. See: Donoghue v Stevenson, [1932] AC 562, at pp. 583-4; Grant v Australia Knitting Mills, [1936] AC 85, at pp. 107-8; the MLC Case (1968) 122 CLR 556, at pp. 596 and 615; [*112] (1970) 122 CLR 628, at pp. 642-3 and 644; the Willemstad Case (1976) 136 CLR 529, at pp. 555 and 576.
Answering the second question The most important question in this case is whether there are considerations applicable to the category of relationships being considered, which ought to negative the duty which the answer to the first question shows prima facie to arise, or restrict its ambit or the consequences of its breach. If there are, by reference to what criteria should such restriction have effect? Then, does the present case fall within the boundary drawn by those criteria? The developing law of negligence In this area the dimension of the law extending back in legal history is as important as the dimensions revealed by the most recent decisions. The time at which a case was decided may be as important as what it decided. The decision in Donoghue v Stevenson, [1932] AC 562 may fairly be said to have opened the floodgates in this part of the law. However, as irrigation farmers know, the controlled progress of flooding is capable of very beneficial effects. By the criteria which they have applied to the various categories [*113] of relationships, the courts have controlled the progress of the law of negligence. See per Lord Denning, MR in Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, at p. 398. The progressive evolution of this part of the law is recognized by Lord Wilberforce in Anns’ Case, [1978] AC 728, at p. 751. [1977] 2 ALL ER 492, at p. 498. He said: “…the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.” He then stated the two questions which are to be asked and which I have already set out.
If the duty of care had been held in the various decisions of the last 50 years to apply only to situations in which it had previously been held to exist, the marked expansion in liability through evolution and development in this area of the law would not have occurred. I regard the approach set out by Lord Wilberforce as the appropriate approach at all judicial levels from trial judge to court of ultimate appeal. It is not only for courts [*114] of ultimate appeal that the approach is valid. The function of the Court of Appeal in England since 1932 could hardly be regarded as that of the passive recipient of new principles first fashioned by the House of Lords. See: Hargrave v Goldman (1963) 110 CLR 40, at pp. 64-5; Smith v Jenkins (1970) 119 CLR 397, at pp. 417-8; Dorset Yacht Case, [1970] AC 1004, at p. 1058.
Policy In deciding whether, in the category being considered, the prima facie duty of care ought to be negatived or the duty, or the consequences of its breach, restricted, a decision of policy is made. In Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, at p. 397 Lord Denning, MR said: “This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house … It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them according to the reason of the thing.
“In previous times, when faced with a new problem, the judges have not openly asked themselves the question: [*115] what is the best policy for the law to adopt? But the question has always been there in the background. It has been concealed behind such questions as: Was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable, or not? Was it too remote and so forth. “Nowadays we direct ourselves to considerations of policy.” That attitude of Lord Denning has been reflected in most of the recent cases. It has been widely acknowledged that questions of policy are being decided. See: the Hedley Byrne Case, [1964] AC 465, at pp. 536-7; [1963] 2 All ER 575; the Dorset Yacht Case, [1970] AC 1004, at p. 1058; the Willemstad Case (1976) 136 CLR 529, at p. 574; Saif Ali v Sydney Mitchell and Co., [1980] AC 198.
In the Willemstad Case (1976) 136 CLR 529, at p. 575, Stephen, J, borrowing some words of Lord Pearce, said: “the gradual accumulation of decided cases and the impact of evolving policy considerations will reflect ‘the courts’ assessment of the demands of society for protection from the carelessness of others'”. [*116]
The policy objective of the courts in deciding whether there should be liability within a particular category, and if so upon what criteria, is to attain a legal solution which will operate fairly, practically and sensibly. The Dorset Yacht Case, [1970] AC 1004, at pp. 1039 and 1054; the Willemstad Case (1976) 136 CLR 529, at pp. 551-2, 575 and 590-1. The courts look at decisions in analogous situations as indicating what there was regarded as fair, practical and sensible. See: the Hedley Byrne Case, [1964] AC 465, at p. 531. In the Dorset Yacht Case, [1970] AC 1004, at pp. 1058-64 Lord Diplock gives a comprehensive explanation of the way in which decisions in analogous situations are used: see also, at p. 1038, per Lord Morris. The courts also look at the various countervailing considerations which support particular solutions as being a fair, practical and sensible solution between parties in situations within the particular category of relationships being considered e.g. the Willemstad Case (1976) 136 CLR 529.
Decisions in analogous situations The appellant submits that the decisions, Ross v Caunters, [1980] 1 Ch 297; [*117] [1979] 3 All ER 580 and Watts v Public Trustee, [1980] WAR 97, which held that in situations indistinguishable from this case, the solicitor owed the beneficiary a duty of care, are wrong. As this appears to be the first consideration on an appeal, of the correctness of the principle applied in those decisions it is desirable to consider the issue afresh.
There are four main cases which I regard as quite closely analogous to the present case. In Everett v Griffiths, [1920] 3 KB 163 a doctor employed as the workhouse doctor by the guardians of a parish examined the plaintiff and gave a certificate under the Lunacy Act 1891 stating his opinion that the plaintiff was a person of unsound mind proper to be detained. Acting on the certificate and other material the chairman of the guardians signed an order for the detention of the plaintiff and he was detained. The plaintiff sued the doctor for damages for having negligently certified, thus causing him to be detained. The plaintiff failed in his action and appealed to the Court of Appeal. It was argued that the doctor owed the plaintiff no duty of care. That argument was accepted [*118] only by Scrutton, LJ He emphasized that the only contract which the doctor had was his contract with the guardians; that under the contract the doctor was obliged to exercise reasonable care; and that the plaintiff was not a party to the contract and had not voluntarily submitted to the doctor. It followed that the doctor in certifying did not owe the plaintiff a duty of care: ([1920] 3 KB) pp. 194-7. Bankes, LJ rejected the argument. He said that although the doctor had not been retained or employed by the plaintiff he did not escape a duty of care. By undertaking the examination of the plaintiff he came under a duty ascertained by reference to the terms of the statute. He held that the doctor owed the plaintiff a duty to act with reasonable care: ([1920] 3 KB) pp. 181-4. However, in his opinion the appeal failed because there was no evidence fit to go to the jury that, in certifying, the doctor had failed to use reasonable care. Atkin, LJ held that the doctor owed a duty of care to the plaintiff. His approach was that in determining whether a duty of care was owed “… it is essential to consider the mutual relations of the parties in each particular case”: ([1920] 3 KB) p. 211. [*119] He took the view that those exercising the power under the Act owed a duty of care to the individual in respect of whom they exercised those powers: ([1920] 3 KB) p. 212. A doctor knew that he was examining the person to determine whether he was to be confined and that his certificate was a condition precedent to the confinement: ([1920] 3 KB) p. 214. He recognized that although such a duty arose on general principles it could be limited or negatived by the provisions of the Act, by contract or by circumstances inconsistent with the existence of the duty: ([1920] 3 KB) pp. 212-6. He took the view that there was every reason for the existence of the duty where a doctor certified a man a lunatic for the purpose of his detention ([1920] 3 KB) p. 213. He indicated that a doctor was not bound to take part in the process of certification but if he did, he owed a duty of care: ([1920] 3 KB) p. 217 The similarity between the approach of Atkin, LJ and that of Lord Wilberforce in Anns’ Case, supra, is obvious. Atkin, LJ also supported his conclusion on the basis that by the doctor examining and conversing with the plaintiff a special relationship of doctor and patient was created: ([1920] 3 [*120] KB) p. 213. He took the view that although the Act did not create a duty of care one of the sections recognized its existence: ([1920] 3 KB) pp. 210 and 212. He considered that there was evidence fit to go to the jury and would have ordered a new trial. The plaintiff appealed to the House of Lords: [1921] 1 AC 631. All members of the House took the view that there was no evidence fit to go to the jury of lack of reasonable care in certifying. The duty owed by the doctor was therefore not argued on behalf of the respondent. Viscount Haldane, while expressing no opinion, said that he thought that probably if the matter were argued out the doctor would be found to be under a duty of care to the plaintiff, the precise nature of which would require consideration: ([1921] AC) p. 657. It is to be noted that in that case the doctor was not under a statutory duty to give a certificate: see [1920] 3 KB 163, at p. 194. The views that the doctor owed the plaintiff a duty of care in that case were in line with the direction of Crompton, J. to the jury in Hall v Semple (1862) 3 F and F 337; 176 ER 151.
In Ministry of Housing v Sharp, [1970] 2 QB 223; [*121] [1970] 1 All ER 1009, the Ministry had a registered charge over a piece of land for repayment to it of a sum of money. A proposed purchaser applied to the Hertfordshire County Council for an official search to be made in the register. A clerk in the council’s office made a search but overlooked the charge and an official certificate issued which did not mention the charge. The proposed purchaser, believing the land free of any charge, purchased it. Later the purchaser refused to pay the amount of the charge to the Ministry, relying on a section which was to the effect that a certificate that there was no charge was conclusive in favour of a purchaser against the person entitled to the charge. The Ministry sued the council, which conceded liability if the clerk was liable. Lord Denning, MR rejected the submission that a duty of care arose only where there was a voluntary assumption of responsibility. He held that the duty to use care in a statement arose from the fact that the person making it knew or ought to know that others, being his neighbours in this regard, would act on the faith of the statement being accurate. That duty was owed to the person to [*122] whom the certificate was issued and was also owed to any person, such as an incumbrancer, who he knew or ought to know would be injuriously affected by a mistake. He held the council liable to the ministry for breach of a common law duty to use due care: ([1970] 2 QB) pp. 268-9. Salmon, LJ said that the clerk and the council must or should have known that unless the search was conducted and the certificate was prepared with reasonable care any chargee or incumbrancer whose charge was carelessly omitted from the certificate would lose it and be likely to suffer damage. He regarded this factor as creating a sufficiently close degree of proximity between the council and the incumbrancer. He took the view that what was to be foreseen as a result of the clerk’s failure to take reasonable care was financial loss not physical injury, but that the existence of a duty of care no longer depended on whether the damage was physical injury or financial loss. He added that the case did not precisely fit into any category of negligence yet considered by the courts. He did not accept that in all cases the obligation to take reasonable care necessarily depends on a voluntary assumption of responsibility. [*123] It seemed to him that the council had there undertaken the duty of searching the register and preparing the certificate. He said that he did not think that it mattered that this was done at the request of the purchaser. He concluded that the damage to the incumbrancer was foreseeable and the proximity sufficiently close for the council through its clerk to owe the Ministry a duty of care: ([1970] 2 QB) pp. 277-80. Cross, LJ said that he did not think the fact that the clerk did not undertake the function of making the statement voluntarily, except in the sense that he could have refused to accept the employment, was relevant to the problem. He said that he saw no reason why, in an appropriate case, a duty of care should not extend to cases in which the defendant was obliged to make the statement which proved false. He expressed great doubt as to the liability of the council but was not prepared to dissent from the other two members of the Court: ([1970] 2 QB) pp. 290-1. The remaining two cases deal with the liability of councils in exercising statutory authority over building operations. In Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, [*124] the Court of Appeal held a council liable to the owner of a house damaged by subsidence, for the negligence of its building inspector in inspecting and approving the foundations of the house. The result was approved and the reasons justifying the decision were stated by the House of Lords in Anns’ Case, [1978] AC 728; [1977] 2 All ER 492, to which I now go. In Anns’ Case a council had power to inspect the foundations of a two-storey block of maisonettes and to insist on any corrections necessary to bring the work into conformity with the by-laws. A by-law provided that the foundations of a building were to be such, and of such depth, as to safeguard the building against damage by swelling or sinking of the subsoil. The council approved building plans showing foundations of three feet or deeper, to the approval of the local authority. On completion of the block in 1962 the owner, who was also the builder, granted leases of the maisonettes for 999 years. In 1970 there were structural movements which resulted in cracks in the walls, sloping floors and other defects. Two original lessees and two assignees of original leases sued the council for negligence by [*125] its employees in approving foundations only two feet six inches in depth. On a preliminary issue it was held that each plaintiff’s cause of action accrued on the date of the first lease of the maisonette in question and so all were statute barred. The Court of Appeal allowed an appeal. The council appealed to the House of Lords and obtained leave to argue the question whether it was under a duty of care to the plaintiffs at all. Lords Diplock, Simon and Russell agreed with the reasons of Lord Wilberforce. Lord Salmon gave his own reasons. Being a preliminary point of law, the questions had to be decided on the assumption that the facts were as pleaded. It was not established whether the council made any inspection of the foundations. The House of Lords considered the issues whether the council was under: (a) any duty of care to the plaintiffs to carry out an inspection of the foundations; (b) a duty, if any inspection was made, to take reasonable care to see that the by-laws were complied with.
The first question for determining the existence of a duty of care, which earlier in my reasons I quoted from Lord Wilberforce’s reasons, was answered in the affirmative. Lord Wilberforce [*126] said that it must be in the reasonable contemplation of the local authority that failure to comply with the by-law’s requirement as to foundations may give rise to a hidden defect which in the future may cause damage to the building. As the building was intended to last, he said, the class of owners and occupiers likely to be affected could not be limited to those who went in immediately after construction: ([1978] AC) p. 753.
In considering the second question for the determination of the existence of a duty of care, Lord Wilberforce first turned his attention to the position if no inspection had been carried out. He held that the council had a power but not a duty to inspect. He outlined the principles applicable to decide whether liability flowed from non-inspection. The part of the decision is not of importance in this case. He held that if an inspection was made there was a duty to exercise reasonable care. He said that the standard of care must be related to the duty to be performed, namely to ensure compliance with the by-law. It must be related to the fact that the inspector’s function was supervisory; and to the fact that the inspector had a discretion as to the time and [*127] manner of inspection and the techniques to be used. He added at ([1978] AC) p. 755; ([1977] 2 All ER p. 501: “A plaintiff complaining of negligence must prove, the burden being on him, that action taken was not within the limits of a discretion bona fide exercised, before he can begin to rely on a common law duty of care. But if he can do this, he should, in principle, be able to sue.”
He then asked whether there was authority against the existence of that duty of care or any reason to restrict it: ([1978] AC) p. 755; ([1977] 2 All ER) p. 501. His answer to both these questions was in the negative.
Lord Wilberforce referred to the argument that with a statutory power, as distinct from a statutory duty, no liability could arise unless some positive act in exercise of the power caused damage. He rejected that as an absolute rule and expressed the view that parallel with public law duties towards individuals affected by the exercise of statutory duties or powers: “…there may coexist those duties which persons private or public, are under at common law to avoid causing damage to others in sufficient proximity to them”: ([1978] AC) p.756; ([1977] 2 All [*128] ER) p.502. As a reasonable man in the position of the inspector must have realized that if the foundations were covered in without adequate depth or strength as required by the by-laws, injuries to safety or health might be suffered by owners or occupiers of the building. Lord Wilberforce decided that the duty of care was owed to them. The right of action was given only to the person who was owner or occupier when the damage occured. He added that that disposed of the objection that an endless indeterminate class of potential plaintiffs may be called into existence : ([1978] AC)p. 758; ([1977] 2 All ER) p. 504.
Lord Wilberforce said that the duty was to take reasonable care,no more, no less, to secure that the builder did not cover in foundations which did not comply with by-law requirements: ([1978] AC) p.758; ([1977] 2 All ER) p. 504.
He held that the damages to be recovered were such amount in respect of physical damage to the dwelling as would restore it to a state where it would no longer be a danger to the health or safety of its occupants: ([1978] AC) pp. 759-60; ([1977] 2 All ER) p. 505.
The cause of action was held to arise only when the building was in a state [*129] where there was present or imminent danger to the health or safety of its occupants: ([1978] AC) p. 760; ([1977] 2 All ER) p. 505.
The reasons of Lord Salmon on the issues relevant to the present case to a similar effect.
These cases which I consider to be closely analogous to the present case, are of course not directly in point. It would be unnecessary to reason by analogy if they were. In each of them the doctor, clerk or building inspector was exercising a power under a statute and this, and the statutory structure within which the act was done, were borne in mind. These considerations were relevant to the nature of the duty of care. Anns’ Case is a good illustration of that. However, in each case it was the duty of care at common law which the Court held to exist. In each case, although the doctor, clerk or building inspector exercised the power because he was bound by contract to his employer to do so, he was held to owe a duty of care to the plaintiff with whom he had no contract and, in all but one of the cases, no contact. In none of the cases had the plaintiff in any positive practical sense relied on what was done by the doctor, clerk or building inspector. In none [*130] of the cases had the plaintiff requested that the relevant act be done. In none of the cases, leaving aside Everett v Griffiths, could it be said that the clerk or building inspector in any way held himself out to the plaintiff as accepting responsibility to the plaintiff for what he did. In all cases, however, the doctor, clerk or building inspector had done the act complained of, where it was within his reasonable contemplation that if it was done carelessly it might cause damage to a person in the position of the plaintiff. See: the Willemstad Case (1976) 136 CLR 529, at p. 590. These cases tend to indicate that if it was fair, practical and sensible that in their situations the doctor, clerk or building inspector should owe a duty of care to the persons in the positions of the plaintiffs, it would also be fair, practical and sensible in a case such as the present, that the solicitor should owe a duty of care to the beneficiaries. Policy considerations I turn to the considerations which tell in favour of the existence of a duty of care owed by the solicitor to the beneficiaries.
In the first place the beneficiaries, whether or not they have in law [*131] suffered loss, have certainly in the colloquial sense “lost out” on a gift the client intended for them, as a result of the solicitor’s carelessness. If there is a proper legal basis for holding that they have sustained damage due to the breach of a duty of care, there is great force in the words of Lord Salmon: “It seems to me to be manifestly fair that any damage caused by negligence should be borne by those responsible for the negligence rather than by the innocents who suffer from it.” Anns’ Case, [1978] AC 728, at p. 767. See also Saif Ali v Sydney Mitchell and Co., [1980] AC 198, at p. 214.
It is desirable that the law and its institutions and practitioners should carry into effect the objects which citizens have sought to achieve by a proper use of the law. The client engaged, and presumably paid, a practising solicitor to prepare a will to make the gifts to the beneficiaries. The proper expectations of the client do not lose weight upon his death. His expectations have not been achieved, through carelessness, in breach of contract, by the solicitor. An action on behalf of the client’s estate could recover only nominal damages. It seems just that there be an award of damages [*132] which would in a substantial way achieve the client’s intention and expectation and compensate the disappointed beneficiaries.
A duty of care owed by a solicitor to beneficiaries in these circumstances, as Megarry, V-C said: “… far from diluting the solicitor’s duty to his client, marches with it, and, if anything, strengthens it”: Ross v Caunters, [1980] 1 Ch 297, at p. 322; [1979] 3 All ER 580, at p. 599. Within the criteria which are present in this case, I do not see any prospect of conflict between the solicitor’s duty to his client and his duty to the beneficiaries. If there is a duty of care to the beneficiaries, the duty to the client will in fact be buttressed by the solicitor knowing that if he is negligent in preparing or supervising the execution of the will, he will face an action for damages by the beneficiaries instead of a theoretical action for nominal damages on behalf of the client’s estate.
A number of considerations have been advanced to show that it would neither be fair, practical nor sensible for the solicitor to owe the beneficiaries a duty of care.
A duty of care would involve a solicitor in [*133] a liability to beneficiaries which solicitors have not previously had to bear. Solicitors, however, are no strangers to liability for negligence. They have always been liable for negligence to their clients, whether the liability has sounded in contract or tort. It is only because of the peculiar situation of a will that solicitors have in practice been liability free when careless in preparing wills or supervising their execution. Liability to clients has not discouraged solicitors from doing work with care and skill which would involve them in liability for large amounts if done negligently. The comment of one of the architects of the modern law of negligence is apposite. In Everett v Griffiths, [1920] 3 KB 163, at pp. 222-3 Atkin, LJ said: “We were pressed very much by counsel for the defendants by the injury which public interests would suffer if there was an enforceable obligation upon persons acting under the Lunacy Acts to act with a reasonable care. It was said that henceforward it would become impossible to induce persons to act. I am not much impressed by the argument. I doubt whether any person, taking upon himself the painful responsibilities [*134] imposed by the Lunacy Acts, was ever encouraged to act by the consideration that he could be negligent with impunity, or will be deterred from acting by the consideration that if he is negligent he will have to pay damages. It is not by such motive that public or professional men in this country are swayed.” It is relevant to consider the economic consequences upon solicitors generally if a duty of care is owed in a case like this. It was submitted that the extent of potential liability may be difficult to ascertain or quantity at the time the will is made. Thus a solicitor invalidly making a will leaving to a beneficiary the whole of the estate of a client with few assets, may find that the client has become very wealthy by the time of death. It is also put that a solicitor who prepares a will for a client and has it properly executed could incur a great liability if a gift failed through the operation of some obscure rule of law. It is argued that, if a solicitor is liable to a disappointed beneficiary, he would also be liable to a disappointed donee under a deed of gift.
In my opinion it is important to distinguish between a principle which would make a solicitor liable for [*135] carelessness causing damage and a principle which would impose on him an unlimited and indeterminate liability for the carelessness. It is not usual for the modern law of negligence to allow a careless professional person immunity from liability where he ought reasonably to have seen that his carelessness would cause damage to another person: Cf. Saif Ali v Sydney Mitchell and Co., [1980] AC 198, at pp. 218-9. Lord Salmon, at p. 231, took a wide view of the liability of a professional person settling a document: “The normal rule applied by the law is that, if anyone holding himself out as possessing reasonable competence in his avocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care. This duty is owed to anyone he should foresee may suffer loss if the duty is breached.”
Occasionally for policy reasons a person is treated as under no liability to a particular person he knows will suffer damage from his carelessness e.g., Rondel v Worsley, [1969] 1 AC 191. The courts, however, often apply criteria of liability to limit the liability of a professional or skilled person who does owe a duty of care to a [*136] plaintiff e.g., Anns’ Case, [1978] AC 728; [1977] 2 All ER 492.
In considering the economic consequences upon solicitors generally two things are important. First, it would only be where there was negligence that there would be any liability. Second, the courts are well able to limit liability if the view is taken in later cases that it would not be fair, practical and sensible to impose liability, or impose unrestricted liability, beyond the boundaries drawn by the criteria which are present in this case.
In the Willemstad Case (1976) 136 CLR 529, at pp. 580-1 Stephen, J. in deciding that a tortious duty of care should exist, declined to take into account the views which legal writers have advanced that it is desirable that losses be spread by the law letting them lie where they fall and letting loss insurance spread them. He regarded it as inappropriate for a court to take that philosophy into account, as to act on it would be to depart from the existing goals of the law of torts. However, in deciding whether it is fair, practical and sensible that one party in a particular category of relationships should be liable for [*137] his carelessness to the other, an inquiry whether one or other or both are likely to be covered by insurance, is an inquiry for quite a different purpose. The law does pay regard to the likely presence of insurance in deciding where fairness lies as between classes of persons in the bearing of a loss. See for example: Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, at p. 398; Photo Production Ltd. v Securicor Transport Ltd., [1980] AC 827. A solicitor carrying on a practice is likely to have liability to beneficiaries covered by insurance, as well as liability to clients, if he may be made liable to beneficiaries for negligence. It is difficult to contemplate that a beneficiary in ordinary circumstances, would ever be covered by insurance for such a loss. Of course, the additional insurance cover would involve further expense for solicitors. This aspect is mentioned by JF Keller, in: “Paying for Mistakes–Professional Negligence and Economic Loss” (1979) 53 ALJ 412.
It was put that, while a solicitor may by contract with his client exclude liability for negligence, he could not, in practice, do this in respect of liability to a beneficiary. [*138] That is a common situation with the law of negligence. The repairer of a motor car may by contract exclude himself from liability if his negligent repairs cause a wheel to come off and the car owner to be injured. But he can not, in practice, exclude himself from liability to another road user who is hit by the wheel when it comes off.
It was argued for the appellant that the rejection of this appeal would involve the imposition on solicitors of liabilities that were incongruous or against public policy. The example was given of a solicitor who agreed with his client to make a will leaving property to a named beneficiary, but carelessly failed to do so before the client died. The argument was that the solicitor would in effect be liable for breach of contract to the beneficiary with whom he had no contract. I doubt whether that would follow. The law of tort has often drawn a distinction between a person agreeing gratuitously to do something and carelessly failing altogether to do it, who has been held not liable, and a person in the same position who did the thing negligently and was held liable: see the Hedley Byrne Case, [1964] AC 465, at pp. 526-7. It was also submitted that [*139] a solicitor acting for a client in connection with a contract conferring a benefit on the other party, could find himself in a situation of conflict, with duties owed both to his client and the other party. The position of the solicitor there may be similar to that of the insurance doctor mentioned by Atkin, LJ in Everett v Griffiths, [1920] 3 KB 163, at p. 213. However, liability in these situations and others mentioned in argument is not concluded by this appeal and will be decided if and when the questions arise.
For reasons which I mention later, I do not consider that in this category of case the fact that the claim is for financial loss tells against the existence of a duty of care.
The cases and considerations which I have discussed do not lead me to the conclusion that the prima facie duty of care, which I regard as arising in this case on the application of Lord Wilberforce’s first question, should be negatived. Nor do I consider that further criteria of liability than those which arise naturally in this case should be imposed to restrict that duty of care or the legal consequences of its breach.
Other submissions Having decided, on the [*140] approach approved by the House of Lords in Anns’ Case, [1978] AC 728; [1977] 2 All ER 492 that (subject to the question of damage) the solicitor in this case owed the beneficiaries a duty of care to ensure that the client’s will was properly executed, I consider some submissions that, as a matter of law, that conclusion is not open in this case. It was argued that to hold that the solicitor owed a duty of care in this case would be to create a tortious duty which was, in effect, derived from the contract between solicitor and client. It was put that this was tantamount to enforcing at the suit of a third party a right purported to be given to him by a contract to which he was not a party. There was argument before us as to whether a solicitor owes his client a duty in contract only, or also in tort. Although I think that there is a great deal to be said for the view that a solicitor is now liable to his client in tort as well as contract, I do not stay to consider the question. I regard the issue as tending to distract from the proper inquiry. The duty of care to the beneficiary does not grow from the contract between solicitor and client. It grows prima [*141] facie from the fact that the solicitor undertook (in the sense of doing) the preparation and supervision of the execution of the will in circumstances in which it was within his reasonable contemplation that carelessness on his part would be likely to cause “damage” to the beneficiaries. That prima facie duty survives, if it is not negatived or restricted by the policy considerations which I have mentioned. The law has long passed the stage where the liability in negligence of a contracting party to someone not a party to the contract is regarded as a product of the contract. In the words of Lord Morris, in the Dorset Yacht Case, [1970] AC 1004, at p. 1036, the beneficiaries: “sue in their own right and not (to use a phrase of Cardozo, J in Palsgraf v Long Island Ry. (1928) 248 NY 339) ‘as the vicarious beneficiary of a breach of duty to another’.”
See also: Donoghue v Stevenson, [1932] AC 562, at pp. 609-12; Grant v Australian Knitting Mills Ltd. (1935) 54 CLR 49, at p. 66.
The relevance of the contract in this case is made clear by a passage in the judgment of Windeyer, J in Voli v Inglewood Shire Council (1963) 110 CLR 74, at p. 85, [*142] a case drawn to my attention by Murphy, J. Windeyer, J. said: “…neither the terms of the architect’s engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it.”
It was put that it is established by the Hedley Byrne Case, [1964] AC 465 and the MLC Case (1968) 122 CLR 556 that a duty of care such as is contended for in this case could only arise if there had been reliance by the beneficiaries on the solicitor. The answer to that was given by Lord Salmon to the similar argument in Anns’ Case. He said that reliance was important in [*143] some categories of case such as the category including the Hedley Byrne Case where the loss was caused by reliance on the negligent misstatement. He added, at ([1978] AC) p. 769: “In the present case, however, the loss is caused not by any reliance placed by the plaintiffs on the council or the building inspector but by the fact that if the inspection had been carefully made, the defects in the foundations would have been rectified before the erection of the building was begun. The categories of negligence as Lord Macmillan said, are never closed and there are now a great many of them. In a few, ‘reliance’ is of importance. In the present case reliance is not even remotely relevant.” There is a similar answer to the submissions that in the present category of case it should be a necessary criterion of liability that there be present one or more of the criteria which have sometimes been said to be necessary in other categories of cases, such as a “holding out” by the defendant to the plaintiff that he possessed particular skills or that he accepted responsibility to the plaintiff for what he was doing.
I do not regard as helpful the argument that no duty of care can exist unless [*144] there is a “special relationship” between the parties. That expression is commonly used to refer to any relationship in which a duty of care exists.
It was argued for the appellant that all the cases in which a person doing an act under contract has been held to owe a duty of care to a third party, are cases where the other party to the contract would have been liable to the third party if he had done the act himself. It was put that these cases suggested that, as the client’s estate would not be liable to the beneficiaries if the client himself had carelessly made the will which failed through improper execution, the solicitor could not be liable either. I do not think that all the cases fit the appellant’s submission. In Everett v Griffiths, [1920] 3 KB 163 the act had to be done by a qualified doctor and the guardians who employed the doctor were unlikely to be so qualified. In view of the Hedley Byrne Case, [1964] AC 465 and the MLC Case (1970) 122 CLR 628, while the accountants, being persons of skill and competence in the field of accounts, would now be liable in the circumstances of Candler v Crane, Christmas and Co., [1951] 2 KB 164, [*145] the tin mining company would not have been liable if it had prepared the accounts. In any event this does not seem to me to be a factor essential to the existence of a duty of care. In many cases, at least, it is enough to look at the relationship between the plaintiff and the defendant. The duty to the plaintiff of the other party to the defendant’s contract may or may not cast light on the duty owed by the defendant to the plaintiff.
It was submitted that the Court is bound by a decision of the House of Lords in a Scottish appeal, Robertson v Fleming (1861) 4 Macq 167, to hold that no duty of care arose in this case. I will consider that submission later.
Have the plaintiffs suffered damage? It was argued for the appellant that the beneficiaries in this case suffered no damage in any sense accepted by the law. In essence the argument is that as the beneficiaries never had any interest in the house property it can not be said that they have lost anything. This amounts to a submission on behalf of the solicitor that although the beneficiaries would have had their interests in the property if he had had the will properly executed, as he did not do so, [*146] they have in law suffered no loss.
In my opinion the cases in which damages have been awarded for the loss of the chance of a benefit show that the loss of what Megarry, V-C called “an assured benefit” (Ross v Caunters, [1980] 1 Ch 297, at p. 321; [1979] 3 All ER 508, at p. 598) is a form of damage recognized by the law. These cases are inconsistent with the proposition assumed by Stamp, LJ in Dutton v Bognor Regis Urban District Council, [1972] 1 QB 373, at p. 413. In Otter v Church, Adams, Tatham and Co., [1953] Ch 280 Michael Otter, the tenant in tail of settled land, who could have become absolutely entitled to it by executing a disentailing deed, received negligent advice from his solicitor that he was absolutely entitled to it. He died having never been advised of the true position and the property passed to his uncle. His administratrix sued the solicitor for damages. It was argued for the solicitor that only nominal damages, the damages which Michael could have recovered in his lifetime, could be awarded. In rejecting that submission Upjohn, J. said, at ([1953] Ch) p. 289: “It is contrary [*147] to common sense to suppose that the damages must only be nominal merely because, had the mistake been discovered in the lifetime of Michael, it could have been rectified. The true way of looking at it, in my judgment, is this. If the mistake had been discovered in Michael’s lifetime it would have been his duty to mitigate the damages, i.e., to reduce them to a nominal sum by executing a disentailing deed, but, as the mistake was not discovered until after his death, Michael has been deprived of the opportunity of increasing his estate by executing a disentailing deed, and, therefore, on his death, his estate is diminished by that amount.”
The estate was awarded damages for loss of the opportunity.
Another example is the decision of the trial Judge, Ashworth, J, in Hall v Meyrick, [1957] 2 QB 455. His judgment was set aside by the court of Appeal on the ground that the cause of action on which the plaintiff succeeded had been introduced by amendment at a time when it was statute barred: [1957] 2 QB 455, at p. 472. The members of the Court of Appeal expressed reservations as to whether there had been a breach by the solicitor [*148] of his duty of care but no reservation was expressed as to the damages which had been awarded. The plaintiff, a widow, and a Mr Hall visited a solicitor together and each separately retained him to prepare a will leaving property to the other. Discussion during the visit indicated there was a real possibility they would marry. Negligently, the solicitor failed to advise the plaintiff that marriage would revoke the wills. They married and Hall later died. On his intestacy the plaintiff received less than half of what she would have received under his will. Ashworth, J held that in failing properly to advise the plaintiff, the solicitor caused her to lose the chance or opportunity of obtaining under a new will from Hall what he had provided for her in the revoked will. Damages, making allowances for various contingencies, were awarded on that basis.
Those cases were cases where the wrong advice or failure to advise deprived the solicitor’s client of the chance or opportunity of taking steps to obtain an accretion to the client’s estate, to which in the absence of those steps the client was not entitled. The present case is not to be treated as a case where the solicitor’s want of [*149] care deprived the plaintiffs of merely a chance or opportunity of an accretion to their estates. That would have been their position during the client’s life. It is, however, proper to take into account that the client died with his will unrevoked. Compare: Willis v The Commonwealth (1946) 73 CLR 105. The beneficiaries lost, what, but for the want of care of the solicitor, was the certainty of receiving, as an accretion to their estates, the interests directed to them by the will. In this case, the issue does not appear to have been raised at the trial that there was any risk that if the will had been valid, the interests of these beneficiaries would have been extinguished or diminished by an order for family provision under PtIV of the Administration and Probate Act 1958. Although the cases just discussed concerned damages for breach of contract, the same principles in my opinion apply in cases of damages for tort: cf. London and North Eastern Railway Co. v BA Collieries Ltd., [1945] AC 143, at pp. 185-6, per Lord Wright; Luntz, Assessment of Damages for Personal Injury and Death, paras. 5.207 and 6.426. In Domine v Grimsdall, [1937] 2 All ER 119, [*150] a bailiff’s assistant, under execution issued by a judgment creditor, seized furniture worth more than the judgment debt. In breach of his statutory duty he left the furniture with the judgment debtor and both the furniture and the judgment debtor disappeared. Atkinson, J. held the bailiff liable to the judgment creditor for breach of statutory duty and held that the loss of a chance sounds in damages in tort as well as contract. He considered that if the furniture had been removed and stored as it should have been, there was a real prospect that something would have been paid towards the debt. The judgment creditor was awarded damages for loss of the chance.
The cases of Hall v Meyrick, Otter v Church, Adams, Tatham and Co. and Domine v Grimsdall, supra, are discussed in McGregor on Damages, 14th ed., paras. 275-7 and 969. The principle of the first two was applied by Roper, J in Murray v Bannerman, Brydone, Folster and Co., [1970] NZLR 1034.
It was argued that this action did not lie, because the damages claimed were for financial loss. Consistently with the approach outlined by Lord Wilberforce in Anns’ Case, [1978] AC 728; [1979] 3 All ER 580 it [*151] would be open to the law to hold that within the category of case now being considered, damage of the type suffered by the respondents here should not give rise to liability. Cases discussed in the Willemstad Case (1976) 136 CLR 529 illustrate that in some categories of cases the law has adopted the policy that a person who suffers no injury to person or property should not be entitled to recover for financial loss due to the defendant’s want of care. I consider that such an approach would be inappropriate in the category being considered here. It would in practice negate the right of disappointed beneficiaries to sue a solicitor for breach of the duty of care which I consider is imposed by the general principles of negligence. In the Hedley Byrne Case, [1964] AC 465, at p. 509; [1963] 2 All ER 575, at p. 598 Lord Hodgson said: “It is difficult to see why liability as such should depend on the nature of the damage.”
It is open to the law to hold that loss such as that suffered by the respondents should sound in damages. As Salmon, LJ said in Ministry of Housing v Sharp, [1970] 2 QB 223, at p. 278; [*152] [1970] 1 All ER 1009, at p. 1027: “So far, however as the law of negligence relating to civil actions is concerned, the existence of a duty to take reasonable care no longer depends on whether it is physical injury or financial loss which can reasonably be foreseen as a result of a failure to take such care.”
The change in the law brought about by the Hedley Byrne Case, [1964] AC 465; [1963] 2 All ER 575 was one which enabled plaintiffs in the category of cases based on negligent misstatement to recover damages for financial loss.
I have thus reached the position where, leaving aside the effect of the decision of the House of Lords in Robertson v Fleming (1861) 4 Macq 167, I am in respectful agreement with the decision of Megarry, V-C in Ross v Caunters, [1980] 1 Ch 297 and its application by Burt, CJ and Anderson, J. Robertson v Fleming In Robertson v Fleming (1861) 4 Macq 167 the respondents, as sureties, guaranteed repayment by one Hamilton to an assurance company of money he had borrowed. Hamilton agreed to give the respondents security [*153] over certain leasehold property of his. Hamilton employed the appellant, a solicitor, to prepare and complete the security document. The security document was prepared but was not completed by notice of it being given to the landlord. Hamilton absconded and was made bankrupt and the respondents had to pay a sum of money to the assurance company. As the respondents could not enforce their security they sued the appellant, claiming damages for his negligence in failing to complete the security. The appellant’s defence was that he had not been employed by the respondents and had not acted as their solicitor at all. The Court of Session directed that two issues be determined by the jury at the trial: (1) Whether the appellant was employed by Hamilton to prepare and complete the security document “for behoof of” the respondents; (2) Whether by negligence the appellant failed to prepare and complete the security document to the damage of the respondents. The jury returned a verdict for the respondents, awarding damages equal to the amount paid to the assurance company.
The appellant eventually appealed to the House of Lords where the main question was whether the proper question of fact [*154] had been raised by the first of the above issues. A great deal turned on whether under Scottish law the words “for behoof of” meant “for the benefit of” or meant “by the authority of”. The House of Lords, with one dissentient, Lord Campbell, LC, held that the words meant “for the benefit of”. On that basis it was held that the first of the issues had not raised the proper question of fact. The proper question of fact was whether the appellant had been employed by or by the authority of the respondents. The case was remitted to the Court of Session to be determined upon the proper issues.
The essence of the reasoning in the House of Lords was that if Hamilton had employed the appellant to prepare and complete the security document for the benefit of the respondents and he had negligently failed to do so, the respondents had no cause of action against him for damages. However, if Hamilton had employed the appellant on behalf of the respondents or on behalf of Hamilton and the respondents, the respondents would have a cause of action in contract against the appellant.
I take the prevailing view of the ratio decidendi of the case to be that expressed by Sir Rupert Cross: “The ratio [*155] decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him…”: Precedent in English Law, 3rd ed., 1977, p. 76. As was said by A.G. Lang in “Is There a Ratio Decidendi?” (1974) 48 ALJ 146, at p. 151: “….the determination of facts must not be lost sight of, as the judge’s remarks should be read secundum subjectam materiam, and having regard to the issues as raised by the parties and determined by him. However, if the judge enunciated and relied upon a wide principle, this need not be artificially narrowed down to fit into the specific findings of fact and be confined within its strict limits.”
See also: Saif Ali v Sydney Mitchell and Co., [1980] AC 198, at p. 217, per Lord Diplock.
In my opinion it was part of the ratio decidendi of the decision of the House of Lords that a solicitor engaged by a client to effect a transaction which will obviously benefit a third party is not liable to the third party in damages,if, through the solicitor’s lack of care, the transaction does not confer that benefit on the third party: cf. Cordery on Solicitors, 6th ed., [*156] 1968, pp. 189 and 199. In my view it is not possible to treat the decision as a decision on Scottish law only. Their Lordships proceeded on the basis that the relevant English law was the same. It was as much a decision on the common law as was Donoghue v Stevenson, [1932] AC 562: see the Dorset Yacht Case, [1970] AC 1004, at p. 1028. While it could be said that Robertson v Fleming dealt with a transaction involving a conflict of interest between Hamilton and the respondents, in which the appellant’s duty was owed only to Hamilton, the principle was never stated as being confined to transactions involving a conflict of interest between the solicitor’s client and the third party. Compare the views expressed by Lords Reid and Hodgson in the Hedley Byrne Case, [1964] AC 465, at pp. 487-9 and 507-9 that although distinguishable on the facts the ratio decidendi of Le Lievre v Gould, [1893] 1 QB 491 was binding in Candler v Crane, Christmas and Co., [1951] 2 KB 164. Lord Campbell, LC, at p. 177, Lord Cranworth, at pp. 184-5, and Lord Wensleydale, at pp. 199-201, stated the principle in terms which included within it absence of liability [*157] to a disappointed legatee. The other member of the House, Lord Chelmsford, while not referring to the situation of a disappointed legatee, took a similar view as to the breadth of the principle: see pp. 207-11. I consider that the principle was a general and indivisible one which the Lords treated as a necessary logical step in reaching their conclusion. It is necessary to consider the consequences of my conclusion that part of the ratio decidendi of the decision of the House of Lords in 1861 conflicts with what I regard as the proper application to the category of relationships relevant in this case, of the general principles of the modern law of negligence. I earlier indicated my view that the approach stated by Lord Wilberforce in Anns’ Case was to be followed at all judicial levels from trial judge to court of ultimate appeal. The approach is available only where there is no authority which it is proper to follow, and which decides whether or not a duty of care exists in the relationships in the category in question: see Anns’ Case, [1978] AC 728, at p. 755. In this case there is the decision of the House of Lords in 1861 to the effect that no liability for negligence exists [*158] in the relationships in the category now being considered. It is an old case based on a view of the law which I consider to be outmoded since Donoghue v Stevenson, [1932] AC 562 and since Candler v Crane, Christmas and Co., supra, was overruled in the Hedley Byrne Case. Robertson v Fleming has, however, not been overruled by the House of Lords. There is no decision or observation of the House of Lords, the Privy Council or the High Court which is inconsistent with its application in the present category of case. In my opinion the effect of decisions of this Court is that the decision in Robertson v Fleming should now be applied in this Court: see Brisbane v Cross, [1978] VR 49; R v O’Connor, [1980] VR 635. I take that view although I do not regard Robertson v Fleming as being in accord with the general principles of the modern law of negligence and although I regard it as a decision likely to be departed from by the House of Lords and the High Court.
Conclusion It follows that in my opinion the appeal should be allowed and the order proposed by Lush, J should be made. I agree with what is said by Lush, J about the measure of damages.
Appeal allowed.
[*159]
Solicitors for the appellant: Moule,Hamilton and Derham.
Solicitors for the respondents: Kiernan and Forrest.
REPORTER: CATHRYN MCMILLAN
Lacked independence and objectivity of Expert Witness: Day v. Karagianis (Newfoundland)
[4] The specific duties and responsibilities of an expert witness who testifies at a trial were outlined by Cresswell J. in The Ikarian Reefer (1993), 2 Lloyds Reports 63 (Comm. Ct. Q.B. Div.) at page 81 (edited) as follows:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, [*3] the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”
[5] Generally, in medical malpractice cases, the parties engage the services of expert witnesses who prepare reports and testify at the trial. In preparing the reports and during their testimony the experts have a duty to the Court:
(a) to be true to their profession or discipline;
(b) to be as objective and independent as the circumstances permit;
(c) to refrain from acting as an advocate;
(d) to avoid any predetermination or bias;
(e) to refrain from giving legal opinions; and
(f) to avoid pejorative or judgmental language. [*4]
[11] Some examples of pejorative and judgmental language used by Dr. Stein in the Report are as follows:
(a) Therefore certification contravenes … the Mental Health Act (page 9)
(b) This is evidence of unethical behaviour on Dr. Craig’s part. (page 11)
(c) The confirmation of certification was illegal. (page 20)
(d) Ms. Day was detained illegally. (page 26)
(e) The Mental Health Act was breached when Ms. Day’s appeal for release went unheard. (page 26)
(f) This is a blatant abuse of power on [*13] the part of the physicians. (page 26)
(g) Several breaches of the Mental Health Act occurred. (page 28)
(h) This statement of Dr. Craig’s is incorrect (page 3 of Appendix IX)
(i) This is documented in Dr. Craig’s progress note of December 5th and is unethical and dangerous practice. (page 4 of Appendix IX)
[12] I find that the Report is inadmissible as evidence in whole or in part because it:
(a) lacked independence and objectivity;
(b) contained pejorative and judgmental language;
(c) made legal interpretations and conclusions;
(d) was an instrument of advocacy and argument on behalf of the Plaintiff; and
(e) failed to confine itself to the appropriate area of expertise.
Between Judith Day, plaintiff, and James Karagianis, first defendant, and David Craig, second defendant, and The Health Care Corporation of St. John’s, third defendant
INDEXED AS: Day v. Karagianis
Docket: 1998 St. J. No. 4087
Newfoundland and Labrador Supreme Court – Trial Division
St. John’s, Newfoundland and Labrador
JUDGES: Halley J.
[2005] N.J. No. 23; 2005 NL.C. LEXIS 16; 2005 NLTD 21
DATE INFORMATION: January 11-13, 2005 Judgment: January 26, 2005.
JUDGMENT DATE: January 26, 2005
SUMMARY: [*1] Facts: A psychiatrist prepared a written report on behalf of the Plaintiff in relation to her claim of medical malpractice.
Issue: Is the report admissible as evidence?
Held: The report was ruled inadmissible because it: (a) lacked independence and objectivity; (b) contained pejorative and judgmental language; (c) made conclusions and interpretations of the law; (d) was an instrument of advocacy and argument on behalf of the Plaintiff; and (e) failed to confine itself to the appropriate area of expertise.
COUNSEL:
Judith Day representing herself
Peter N. Browne, counsel for the First and Second Defendants
Daniel M. Boone, counsel for the Third Defendant
JUDGMENT:
DECISION OF HALLEY, J.
[1] HALLEY J.:– The Plaintiff has commenced this action against the Defendants alleging medical malpractice.
[2] The Plaintiff wishes to introduce as evidence a medico-legal report pursuant to Rule 46.07 of the Rules of the Supreme Court, 1986. That report was prepared by Dr. Eleanor Stein, who is a psychiatrist practicing in Calgary, in the Province of Alberta (“Report”).
[3] This is an application by the First and Second Defendants for an order that the Report should be ruled inadmissible as evidence in this trial. [*2]
I. EXPERT EVIDENCE
[4] The specific duties and responsibilities of an expert witness who testifies at a trial were outlined by Cresswell J. in The Ikarian Reefer (1993), 2 Lloyds Reports 63 (Comm. Ct. Q.B. Div.) at page 81 (edited) as follows:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, [*3] the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”
[5] Generally, in medical malpractice cases, the parties engage the services of expert witnesses who prepare reports and testify at the trial. In preparing the reports and during their testimony the experts have a duty to the Court:
(a) to be true to their profession or discipline;
(b) to be as objective and independent as the circumstances permit;
(c) to refrain from acting as an advocate;
(d) to avoid any predetermination or bias;
(e) to refrain from giving legal opinions; and
(f) to avoid pejorative or judgmental language. [*4]
II. FACTS
[6] In determining whether the Report is admissible as evidence, I find the following excerpts particularly troubling:
(a) Summary Re: Committal
The Mental Health Act in use at the time of the committal of this patient required that the patient 1. has a mental disorder – this appears to have been true at the time of the admission though the diagnosis was incorrect, 2. is unwilling to accept admission – This was not true, since the patient willingly accepted the transfer to the Waterford after being told there were no beds at the HSC; and knowing that she was ill with the same thing she had had 10 years ago, likely a toxic drug reaction, 3. is a danger to him/herself, the safety of others or property. There was no evidence of #2 or #3. Therefore the act of committal was invalid in this case. (page 8)
(b) Several breaches of the Mental Health Act were committed during this admission:
1. The patient came to hospital voluntarily and asked to be admitted and supervised. Therefore certification contravenes Chapter M-9 section 6d of the Mental Health Act. The certification paper signed by Drs. Pratt and Karagianis incorrectly state that the patient refused admission. [*5]
2. The patient showed no signs of mental disorder and certainly posed no threat to herself, others or property from the third day of admission onwards. The certificate should have been lifted at that time.
3. At no time was the patient noted to be incompetent. Yet when she began refusing to take her medication due to side effects, the staff told her that she could be forced to take medication if she did not comply.
4. The patient completed the application to go to the Review Board. A signed, dated copy of that application is attached as Appendix V. This application was not submitted to the review board until three weeks later. This is evidence of neglect as defined by Chapter M-9 section 20 of the Mental Health Act.
5. The patient’s certification was confirmed 15 days after admission. By this time the patient had been repeatedly reported as acting normally in the nursing notes. There was no evidence of mental illness nor danger to herself, others or property. Therefore, the confirmation of certification was illegal.
6. The confirmation of certification was completed by a Dr. Coovadia. The patient has no recollection of ever meeting or talking to this physician. In her personal [*6] diary written during hospitalization there is no mention of such a meeting. In the medical record there are no notes from Dr. Coovadia. On the certification form of May 30th, Dr. Coovadia uses only words already used in the medical record by other observers. There is no evidence that he ever interviewed the patient. Therefore the confirmation of certification was not completed in accordance with Chapter M-9 section 5(4)a of the Mental Health Act, requiring that the physician shall “personally examine” the patient before completing a certificate”. (page 9)
(c) Summary re: Drug Side Effects
The admission progress notes show a temporal connection between the use of lithium and the patient’s side effects of nausea and vomiting. Ms. Day’s protests of the same were repeatedly ignored. In the progress notes of December 5th, Dr. David Craig states that he is intentionally prescribing twice the necessary amount of medication. Given the severity of the side effects the patient experienced on a low dose of lithium, this order puts the patient at serious risk of toxicity. The discharge summary implies that the patient’s nausea and vomiting (side effects of treatment prescribed by Dr. Craig) [*7] were psychogenic or voluntary to try to avoid discharge. Given the patient’s dislike and distrust of hospitals since the Waterford admission such an assumption seems very unlikely. Ms. Day was at no point judged as incompetent nor was she certifiable under the Mental Health Act. This is evidence of unethical behaviour on Dr. Craig’s part. (page 10)
(d) Regarding the truthfulness of Dr. Craig
It seems that Dr. Craig was not being entirely truthful in his answers to the interrogatories. He states in point 12 that he “has no personal recollection of any statements by Ms. Day concerning her previous psychiatric history or any disagreement with the interpretation of the history of her illness. There are several clear references to this in the medical record:
Appendix IV. May 19/10 “Judy believes she has been given the wrong diagnosis and will not take Lithium”.
Appendix IV, May 21/16 “Judy maintains that she had another psychotic episode due to Trinalin and that manic depression is not her problem?”
Appendix VI, November 27/9-12 “Increasingly hyper and came into hospital before I reach the point of an outburst”. Judy was prescribed Prozac 20 mg and Lithium by Dr. Karagianis, which [*8] she believed was causing her problem.
Appendix VI, November 29/18 “Does not believe she is bipolar”. (page 17)
(e) Summary of Statement of Claim:
To treat, as Dr. Karagianis suggests, only when diagnosis has been established results in substandard medical care. Kroenke et al published a well known paper in 1989 showing that only 16% of patients presenting to primary care with a variety of non-specific symptoms such as: pain, fatigue, dizziness, headache, edema, back pain, dyspnea, insomnia, abdominal pain, numbness, impotence, weight loss, cough, and constipation were found to have a provable organic etiology (Kroenke & Mangelsdorff, 1989). Therefore treating on the basis of diagnosis would leave 84% of patients with inadequate treatment. In these cases one must treat on a symptomatic basis.
Ms. Day’s diagnosis was unclear at the time of admission and she had an underlying diagnosis (Fibromyalgia), which was not made by the attending staff. Therefore treating based on diagnosis resulted in harm, whereas listening to the patient and treating on a symptomatic basis, as was done in 1983 by Dr. Jain, may well have averted the severe consequences which resulted. (page 25)
(f) Abuse [*9] of power resulting in harm
Ms. Day was threatened with assaultive action (intramuscular drugs) if she did not comply with oral treatment and therefore complied, but suffered significant side effects from the treatment. This is a blatant abuse of power on the part of the physicians. The patient’s repeated complaints of side effects were ignored. The diagnosis and treatment during the Waterford admission influenced future care and Ms. Day remains labelled with the moniker of Bipolar Disorder to this day, even though since January 19, 1998, she decided to cease all medication and direct her own treatment. The involuntary hospitalization and misdiagnosis of Bipolar Disorder caused Ms. Day pain and suffering through a) alienation from her family, 2) the psychological impact of having her basis right of freedom removed, 3) the physical and cognitive effects of the involuntary medication and 4) loss of her job and income as a direct result of misdiagnosis, stigma in the workplace induced by Dr. Craig’s communication and drug side effects. (pages 26 & 27)
(g) Misdiagnosis
Physicians like other human beings can and do make mistakes. Therefore the initial misdiagnosis of Bipolar disorder [*10] rather than drug induced psychosis is not in itself negligent. It can be difficult to differentiate between psychotic conditions in the moment. However negligence occurred cumulatively over time when the patient’s version of events, including her personal health history, was ignored and when she was treated against her will in a harmful manner over a 2 year period.
The diagnostic criteria for Fibromyalgia were published in 1990. By 1995, the diagnosis of Fibromyalgia should have been well known to all psychiatrists. Whereas Dr. Jain could be excused for misdiagnosing continued infection, pain and fatigue as signs of depression, this was no longer acceptable in 1995. Never the less, both Drs. Karagianis and Craig would have avoided negligent behaviour if they had listened to the patient, instead of insisting they knew best. The dismissal of Fibromyalgia as a psychiatric or psychosomatic disorder is not acceptable. Deale & Wessely, conservative researchers from Oxford University in the UK have reported that “of patients with Chronic Fatigue Syndrome (a similar and overlapping disorder to Fibromyalgia) who had previously been given a psychiatric diagnosis, 68% had been misdiagnosed” [*11] (Deale & Wessely, 2000). If this is true then a majority of the 500,000 persons in Canada with Fibromyalgia have likely been misdiagnosed. If Ms. Day’s case is successful, health care for many of these may improve”. (page 27)
(h)
In conclusion I find the case presented by Ms. Day to be strongly supported by the medical record. Several breaches of the Mental Health Act occurred. She was misdiagnosed and mistreated and suffered harm as a result. Her opinions were not listened to. She was not treated with respect. The health care system failed Ms. Day in that it did not follow the credo that has defined medicine since it’s inception “first do no harm”. (page 28)
IV. ANALYSIS
[7] On the basis of the Report (in general) and the above excerpts (in particular) the following are my findings:
(a) Mental Health Act
[8] Throughout her Report, Dr. Stein makes numerous references to the Mental Health Act, R.S.N.L., 1990, c. M-9 (“Act”). She interpreted certain provisions of the Act and concluded that the Defendants breached the provisions of the Act. This clearly went beyond the mandate of an expert in preparing a medico-legal report. Legal findings and factual inferences are the [*12] sole responsibility of the trier of fact.
(b) Statement of Claim
[9] Dr. Stein quoted extensively from the Statement of Claim. She considered the allegations of negligence and concluded that the Defendants were guilty of medical malpractice. Again, these are findings which are reserved exclusively for the trier of fact.
(c) Advocacy
[10] The arguments on behalf of the Plaintiff which permeate the Report amount to advocacy which would be acceptable in a legal brief prepared by a lawyer but is fatal in a report prepared by an expert witness. It is a breach of the expert’s duty to the Court to provide an objective and independent opinion.
(d) Pejorative remarks
[11] Some examples of pejorative and judgmental language used by Dr. Stein in the Report are as follows:
(a) Therefore certification contravenes … the Mental Health Act (page 9)
(b) This is evidence of unethical behaviour on Dr. Craig’s part. (page 11)
(c) The confirmation of certification was illegal. (page 20)
(d) Ms. Day was detained illegally. (page 26)
(e) The Mental Health Act was breached when Ms. Day’s appeal for release went unheard. (page 26)
(f) This is a blatant abuse of power on [*13] the part of the physicians. (page 26)
(g) Several breaches of the Mental Health Act occurred. (page 28)
(h) This statement of Dr. Craig’s is incorrect (page 3 of Appendix IX)
(i) This is documented in Dr. Craig’s progress note of December 5th and is unethical and dangerous practice. (page 4 of Appendix IX)
[12] I find that the Report is inadmissible as evidence in whole or in part because it:
(a) lacked independence and objectivity;
(b) contained pejorative and judgmental language;
(c) made legal interpretations and conclusions;
(d) was an instrument of advocacy and argument on behalf of the Plaintiff; and
(e) failed to confine itself to the appropriate area of expertise.
[13] Although the Report is inadmissible as evidence, this ruling does not preclude the Plaintiff from calling Dr. Stein to testify at this trial. In the event that Dr. Stein is called to testify, the following shall apply to her testimony to ensure that her evidence complies with this ruling:
(a) she shall be examined as to her professional qualifications and, if qualified to testify as an expert, the appropriate areas or her expertise shall be determined;
(b) Dr. Stein shall be examined [*14] by the Plaintiff on the basis of a series of hypothetical questions;
(c) that during her testimony Dr. Stein shall be directed to:
(i) refrain from offering opinions on the interpretation of legislation or the legal responsibilities of physicians, nurses or hospital administration;
(ii) refrain from making factual inferences that do not require expert analysis;
(iii) limit her opinion on the conduct of the Defendants as to whether or not the Defendants’ conduct met or failed to meet relevant professional standards; and
(iv) generally confine her evidence to the proper and appropriate role of an expert witness.
[14] The costs of this application shall be costs in the cause.
HALLEY J.
Serious Misconduct of Expert Witness: Meadow v General Medical Council (United Kingdom)
CONFLICT OF INTEREST EXPERT WITNESS: FOO FIO NA V HOSPITAL ASSUNTA & ANOR (MALAYSIA)
The Malayan Law Journal
FOO FIO NA V HOSPITAL ASSUNTA & ANOR
[1999] 6 MLJ 738
CIVIL SUIT NO S7-25-13 OF 1987
HIGH COURT (KUALA LUMPUR)
DECIDED-DATE-1: 8 OCTOBER 1999
MOKHTAR SIDIN JCA
CATCHWORDS:
Evidence – Witness — Expert evidence — Opinion of expert witness not properly based — Evidence of expert witness self serving — Effect of such evidence
Tort – Negligence — Professional negligence — Medical practitioner — Standard of care
Tort – Negligence — Professional negligence — Medical practitioner — Consent to surgery obtained on plaintiff’s admission to hospital — Type of surgery, procedures and risks involved not known or made known to plaintiff at the time consent obtained — Subsequent misrepresentation by defendant doctor to plaintiff on nature of operation — Serious risk of paralysis due to operation not made known to plaintiff — Whether consent properly obtained — Second consent for second operation obtained when plaintiff paralyzed — Purpose of second operation not made known to plaintiff — Whether second consent given voluntarily
HEADNOTES:
In this case, the plaintiff’s claim against both defendants was based on medical negligence. The facts revealed that the plaintiff was admitted to the Assunta Hospital — the first defendant herein (‘the hospital’) — on the night of 11 July 1982 after she was involved in an accident near the hospital. At the time of her admission, the plaintiff was able to move all her limbs. The second defendant, a visiting consultant with the first defendant examined the plaintiff on the afternoon of 12 July 1982 during which time he informed her that she had dislocated two neck bones. The second defendant then ordered traction treatment to be carried out on the plaintiff and this treatment was carried out for two days during which period the plaintiff was conscious and able to move her body and limbs. The second defendant discontinued the traction treatment after two days on the basis that it was unsuccessful and after a failed attempt at closed manipulation under anaesthetic, he recommended surgery. The plaintiff consented to the operation and underwent surgery (‘the first operation’) on 19 July 1982. However, after the first operation, she discovered that she was unable to move her body and limbs. The second defendant assured her that the paralysis was only temporary and that she would recover in two weeks. On 5 August 1982, one Dr Mohandas, a neurosurgeon conducted a myelogram test on the plaintiff in the presence of the second defendant. The plaintiff was then taken to the operating theatre where another operation (‘the second operation’) was performed. After the second operation, the plaintiff was only able to move her hands. Despite the second defendant’s assurance that she would recover from her paralysis, the plaintiff remained at the hospital for 11 months without recovering the use of her legs. She then discharged herself from the hospital.
In her evidence, the plaintiff alleged that although the second defendant had recommended the first operation, he did not explain the risks of the surgery. When she asked him of the dangers of the first operation, she was told that the surgery would be a minor and simple one. Since such an assurance was given, she consented to the operation. She further stated that had she known that the first operation was a major surgery with high risks, she would not have consented. With regard to the second operation, the plaintiff contended that she did not know the purpose of such an operation and she did not consent to it. The plaintiff testified that she personally met Dr Mohandas after her discharge from the first defendant hospital. He informed her that a piece of wire which was placed to correct the dislocation of her C4 and C5 vertebrae during the first operation had pressurized her spinal cord thus causing the total paralysis. This was discovered after he conducted the myelogram test. As a result of that, the second operation was necessary to remove the wire pressuring the spinal cord. The second defendant however stated in evidence that the wire was not in the spinal cord and this was shown by an X-ray he had taken. The X-ray however was never produced in court despite requests being made by the plaintiff for it to be produced in court and no satisfactory explanation was given for its non-production. The second defendant maintained that at no time was the wire compressing the spinal cord. He further submitted that the plaintiff had consented to both the operations and as such he could not be blamed for what went wrong during the operations. The defendants adduced as evidence a consent form dated 13 July 1982 signed by the plaintiff. A second consent form dated 5 August 1982 affixed with the plaintiff’s thumbprint was also tendered as evidence. In its defence, the first defendant denied that the second defendant was its servant or agent and as such it was not responsible for the negligent act of the second defendant.
At the trial, the plaintiff called one Dato’ Dr Arumugasamy to testify on her behalf. He gave his expert evidence after examining the plaintiff and causing X-rays to be taken on her. He also looked into the case notes of the plaintiff. Dr Arumugasamy was of the opinion that the two days taken by the second defendant in administering the conservative treatment (traction) was insufficient. He was of the opinion that such treatment should be prolonged. The second defendant called his own expert witness, Dr Myles Gibson, a neurosurgeon from the United Kingdom to contradict Dr Arumugasamy’s evidence. Dr Myles however was a council member of the Medical Protection Society, a society established to protect any undoing or negligence of a member and to which the second defendant belonged as a member. Dr Myles admitted that he did not see or examine the plaintiff though she was available nor did he see the X-rays of the plaintiff. He further admitted that he formed his opinion after he saw the case notes of the plaintiff given to him by the second defendant. He had also prepared his opinion in the office [*740] of the solicitors for the second defendant after Dr Arumugasamy had given his evidence and when the notes of proceedings were with the solicitors.
Held, allowing the plaintiff’s claim:
(1) The first consent form in respect of the first operation was the
standard admission form that every patient admitted into the hospital had to
fill-up and sign. The first consent was given on 13 July 1982 whereas the
first operation was only carried out on 19 July 1982. The first operation was
only carried out after the conservative treatment had failed and at the time
the first consent was given, the progress of the conservative treatment was
not yet known. Thus on 13 July 1982, it was clearly not known whether the
plaintiff needed the first operation and what sort of operation it would be.
It would have also been impossible for the second defendant to explain the
procedure and risks of the operation when the first consent was given. On the
facts, the plaintiff was not told of the risk of paralysis arising from the
first operation. The failure to do so and the misrepresentation by the second
defendant that the first operation was a minor operation clearly showed that
the plaintiff would not consent to such an operation and the consent, if any,
was not obtained properly. The second consent was dated 5 August 1982 which
was after the first operation had been performed and when the plaintiff was
totally paralysed in both upper and lower limbs. At that time, she could not
have affixed the thumbprint by herself and neither could she resist the
affixing of it by someone else. The thumbprint was also affixed in the
absence of the plaintiff’s brother and friend although the defendants knew of
their existence. On the facts, the defendants had failed to satisfy the court
that the second consent was given voluntarily (see pp 750H, 751A-D, F-H).
(2) The principle underlying medical negligence cases is that the court
itself has to decide on the doctor’s negligence after weighing the standard
of skills practised by the relevant profession or trade and also the fact
that a person is entitled to make his own decision on his life. This
determination is to be based entirely on the evidence of each case. A doctor
is expected to give a fair and reasonable standard of care and skill expected
of an ordinary competent medical practitioner. Even though the normal or
standard practice is followed, a doctor may still be liable for negligence if
something goes wrong with the follow-up treatment such as lack of
observations (see pp 765F, 766C-D).
(3) On the facts, it was clear from the evidence that the plaintiff was
not paralysed before the first operation and that her paralysis was caused by
the first operation conducted by the second defendant. The second defendant
was negligent in tying the wire loop thus causing compression of the spinal
cord leading to the plaintiff’s total paralysis. The second defendant was
again negligent when [*741] he did not take immediate steps to remedy
the paralysis immediately. He was also negligent when he did the laminectomy
(re-exploration). The second defendant had therefore failed to exercise the
care and skill of an ordinary competent practitioner in that profession.
Since at all material times the second defendant was a servant of the first
defendant hospital, the hospital was vicariously liable for the wrongful act
of the second defendant (see pp 747E, 763D, 753C, 764E).
(4) The X-ray mentioned by the second defendant was of vital importance to
both sides especially the plaintiff. The X-ray would also help the court to
determine whether the wire loop touched the spinal cord. From the evidence,
it was clear that the last person who handled the X-ray was the second
defendant. In view of the unsatisfactory explanation of the X-ray, s 114
illustration (g) should be invoked against the defendants. The defendants did
not produce the X-ray because it was not favourable to them (see pp 754G-H,
755C-G).
(5) Dr Arumugasamy gave evidence after examining the plaintiff, causing
X-rays to be taken on her and having looked into the case notes of the
plaintiff. His evidence showed that the second defendant had committed an
error when the first operation took place which resulted in the plaintiff’s
paralysis. There was clear evidence that the wire loop compressed the spinal
cord thus causing the paralysis and this was confirmed by the second
operation wherein the wire loop was removed as a result of which the
plaintiff was able to move her upper limbs (see pp 757I, 758H-I). Dr Myles on
the other hand did not see or examine the plaintiff though she was available.
He did not see the X-rays of the plaintiff and had formed his opinion after
he saw the case notes of the plaintiff given to him by the second defendant,
which had been shown to be suspect. Dr Gibson was also a council member of
the Medical Protection Society, a society established to protect any undoing
or negligence of a member to which the second defendant belonged as a member.
Dr Gibson’s evidence was therefore self-serving as he had an interest in the
decision to favour the second defendant and his evidence could not therefore
be relied upon. The evidence of Dr Arumugasamy was however more reliable (see
pp 757I-758A, 758E-F, H).
Bahasa Malaysia summary
Di dalam kes ini, tuntutan plaintif terhadap kedua-dua defendan adalah berdasarkan kecuaian perubatan. Fakta-fakta mendedahkan bahawa plaintif telah dimasukkan ke Hospital Assunta — defendan pertama (‘hospital tersebut’) — pada malam 11 Julai 1982 selepas beliau terlibat di dalam satu kemalangan berhampiran dengan hospital itu. Sewaktu beliau dimasukkan, beliau berupaya untuk menggerakkan kesemua anggota beliau. Defendan kedua, seorang [*742] perunding pelawat dengan defendan pertama telah memeriksa plaintif pada tengahari 12 Julai 1982 di mana di dalam tempoh waktu itu beliau telah memaklumkan kepada plaintif bahawa plaintif telah terkehel dua tulang leher. Defendan kedua kemudiannya telah mengarahkan rawatan tarikan dijalankan ke atas plaintif dan rawatan ini telah dijalankan selama dua hari di mana di dalam tempoh ini plaintif sedar dan berupaya untuk menggerakkan badan dan anggota-anggota beliau. Defendan kedua tidak meneruskan rawatan tarikan itu selepas dua hari atas sebab ia tidak berjaya dan selepas cubaan yang gagal pada manipulasi tertutup di bawah bius, beliau mencadangkan pembedahan dilakukan. Plaintif telah memberikan kebenaran untuk pembedahan itu dan menjalani pembedahan itu (‘pembedahan pertama itu’) pada 19 Julai 1982. Walau bagaimanapun, selepas pembedahan pertama itu beliau mendapati bahawa beliau tidak berupaya untuk menggerakkan badan dan anggota-anggota beliau. Defendan kedua meyakinkan beliau bahawa kelumpuhan itu hanya sementara dan bahawa beliau akan pulih di dalam dua minggu. Pada 5 Ogos 1982, seorang bernama Dr Mohandas, seorang pakar bedah neuro telah menjalankan satu ujian myelogram ke atas plaintif di dalam kehadiran defendan kedua. Plaintif kemudiannya telah dibawa ke bilik teater pembedahan di mana satu lagi pembedahan (‘pembedahan kedua itu’) telah dijalankan. Selepas pembedahan kedua itu, plaintif hanya berupaya untuk menggerakkan tangan beliau. Walaupun defendan kedua telah memberi jaminan bahawa beliau akan pulih daripada kelumpuhan itu, plaintif telah menetap di hospital selama 11 bulan tanpa kembali pulih menggunakan kaki beliau. Beliau kemudian telah mengeluarkan diri beliau daripada hospital itu.
Di dalam keterangan beliau, plaintif telah mendakwa bahawa walaupun defendan kedua telah mencadangkan pembedahan pertama itu, beliau tidak menerangkan risiko-risiko pembedahan itu. Apabila plaintif bertanyakan kepada defendan kedua bahaya pembedahan itu beliau diberitahu bahawa pembedahan itu hanya satu pembedahan yang kecil dan mudah. Memandangkan jaminan itu telah diberikan, beliau memberi kebenaran untuk menjalankan pembedahan itu. Beliau seterusnya menyatakan bahawa sekiranya beliau mengetahui bahawa pembedahan pertama itu merupakan satu pembedahan yang besar berisiko tinggi, beliau tidak mungkin memberikan kebenaran. Plaintif telah memberikan keterangan bahawa beliau telah secara peribadi berjumpa dengan Dr Mohandas selepas beliau keluar daripada hospital defendan pertama. Beliau memberitahu bahawa terdapat seutas wayar yang digunakan untuk membetulkan vertebra C4 dan C5 beliau yang terkehel semasa pembedahan pertama itu telah memberi tekanan pada saraf tunjang beliau yang demikian telah menyebabkan kelumpuhan keseluruhan. Ini dapat dikesan selepas beliau menjalani ujian myelogram itu. Akibatnya, pembedahan kedua itu adalah perlu untuk mengeluarkan wayar yang memberi tekanan pada saraf tunjang itu. Defendan kedua bagaimanapun telah [*743] menyatakan di dalam keterangan bahawa wayar itu bukan di dalam saraf tunjang itu dan ini ditunjukkan melalui X-ray yang telah diambil oleh beliau. Walau bagaimanapun X-ray tersebut tidak dikemukakan di mahkamah walaupun telah diminta beberapa kali oleh plaintif untuk ia dikemukakan di mahkamah dan tiada penjelasan yang memuaskan telah diberikan sebab ia tidak dikemukakan. Defendan kedua mempertahankan bahawa tidak pada bila-bila masa pun wayar itu telah memberi tekanan kepada saraf tunjang. Beliau seterusnya mengemukakan bahawa plaintif telah memberikan kebenaran kepada kedua-dua pembedahan itu dan oleh sebab itu beliau tidak sepatutnya dipersalahkan atas apa kesilapan yang berlaku semasa pembedahan itu. Defendan-defendan telah mengemukakan sebagai keterangan satu borang kebenaran bertarikh 13 Julai 1982 yang ditandatangani oleh plaintif. Satu borang kebenaran kedua bertarikh 5 Ogos 1982 yang mempunyai cap ibu jari plaintif juga telah dikemukakan sebagai keterangan. Di dalam pembelaan, defendan pertama menafikan bahawa defendan kedua adalah pekerja atau ejennya dan oleh sebab itu ia tidak bertanggungjawab ke atas perbuatan cuai defendan kedua itu.
Semasa perbicaraan, plaintif telah memanggil seorang bernama Dato’ Dr Arumugasamy untuk memberikan keterangan bagi pihak plaintif. Beliau telah memberikan keterangan pakar beliau selepas memeriksa plaintif dan mengambil X-ray ke atasnya. Beliau juga telah melihat nota-nota kes plaintif itu. Dr Arumugasamy berpendapat bahawa dua hari yang diambil oleh defendan kedua untuk menjalani rawatan konservatif (tarikan) itu adalah tidak mencukupi. Beliau berpendapat bahawa rawatan sebegitu sepatutnya dipanjangkan. Defendan kedua telah memanggil saksi pakar beliau, Dr Myles Gibson, seorang pakar bedah neuro daripada United Kingdom untuk menyangkal keterangan Dr Arumugasamy. Dr Myles bagaimanapun merupakan ahli majlis Perlindungan Perubatan Masyarakat, satu persatuan yang ditubuhkan bagi melindungi apa-apa kesalahan atau kecuaian seseorang ahlinya dan di mana defendan kedua merupakan seorang daripada ahli itu. Dr Myles telah mengakui bahawa beliau tidak melihat atau memeriksa plaintif walaupun plaintif ada maupun melihat X-ray plaintif. Beliau selanjutnya mengakui bahawa beliau membentuk pendapat beliau selepas melihat nota-nota kes plaintif yang telah diberikan kepada beliau oleh defendan kedua. Beliau juga telah menyediakan pendapat beliau di dalam pejabat peguam defendan kedua selepas Dr Arumugasamy telah memberikan keterangan beliau dan semasa nota-nota prosiding adalah bersama peguam.
Diputuskan, membenarkan tuntutan plaintif:
(1) Borang kebenaran pertama mengenai pembedahan pertama itu merupakan
borang kemasukan yang standard di mana setiap pesakit yang dimasukkan ke
hospital perlu isi dan tandatangan. Kebenaran pertama telah diberikan pada 13
Julai 1982 di mana [*744] pembedahan pertama itu hanya telah
dijalankan pada 19 Julai 1982. Pembedahan pertama itu hanya dijalankan
selepas rawatan konservatif gagal dan pada masa kebenaran pertama telah
diberikan, perkembangan rawatan konservatif itu masih belum diketahui. Oleh
itu pada 13 Julai 1982, adalah jelas tidak diketahui sama ada plaintif
memerlukan pembedahan pertama itu dan apa jenis pembedahan itu. Adalah juga
mustahil untuk defendan kedua untuk menjelaskan prosedur dan risiko-risiko
pembedahan itu semasa kebenaran pertama itu diberi. Berdasar-kan fakta-fakta,
plaintif tidak diberitahu tentang risiko menjadi lumpuh yang timbul daripada
pembedahan pertama itu. Kegagalan berbuat demikian dan salah nyata tersebut
oleh defendan kedua bahawa pembedahan pertama itu merupakan satu pembedahan
yang kecil dengan jelas menunjukkan bahawa plaintif akan tidak membenarkan
pembedahan sedemikian dan kebenaran itu, jika ada, tidak diperoleh dengan
betul. Kebenaran kedua bertarikh 5 Ogos 1982 iaitu selepas pembedahan pertama
itu telah dijalankan dan ketika plaintif mengalami kelumpuhan keseluruhannya
di kedua-dua bahagian atas dan bawah anggota-anggotanya. Pada masa itu tidak
mungkin beliau boleh menurunkan cap ibu jari beliau dengan sendiri dan juga
beliau tidak mungkin boleh menolak penurunannya oleh orang lain. Cap ibu jari
itu juga diturunkan semasa ketiadaan abang dan teman plaintif walaupun
defendan-defendan mengetahui kewujudan mereka. Berdasarkan fakta-fakta,
defendan-defendan telah gagal untuk memuaskan mahkamah bahawa kebenaran kedua
telah diberikan secara sukarela (lihat ms 750H, 751A-D, F-H).
(2) Prinsip yang menjadi dasar kes-kes kecuaian perubatan adalah di mana
mahkamah sendiri yang patut memutuskan kecuaian doktor itu selepas menimbang
standard kemahiran yang diamalkan oleh profesion atau perniagaan yang
berkaitan dan juga fakta bahawa seseorang itu berhak untuk membuat keputusan
sendiri tentang hidupnya. Penentuan ini patut berdasarkan keseluruhannya pada
keterangan setiap kes. Seorang doktor dijangkakan memberi satu standard
tanggungjawab dan kemahiran yang adil dan munasabah yang diharapkan oleh
seorang pengamal perubatan yang kompeten dan biasa. Walaupun amalan yang
biasa dan standard diikut, seorang doktor masih mungkin bertanggungan untuk
kecuaian jika sesuatu tidak kena berlaku dengan rawatan susulan seperti
kurangnya pemerhatian (lihat ms 765F, 766C-D).
(3) Berdasarkan fakta-fakta, adalah jelas daripada keterangan bahawa
plaintif tidak lumpuh sebelum pembedahan pertama itu dan kelumpuhan beliau
adalah disebabkan oleh pembedahan pertama itu yang dijalankan oleh defendan
kedua. Defendan kedua telah cuai di dalam mengikat gelung wayar tersebut yang
menyebabkan tekanan pada saraf tunjang yang membawa kepada kelumpuhan penuh
plaintif. Defendan kedua sekali lagi telah cuai apabila beliau tidak
mengambil tindakan segera untuk meremedikan [*745] kelumpuhan itu
dengan segera. Beliau juga cuai apabila beliau melakukan laminectomi
(pencarian semula). Defendan kedua oleh demikian telah gagal untuk
melaksanakan tanggungjawab dan kemahiran yang kompeten dan biasa seorang
pengamal di dalam profesion itu. Memandangkan pada semua masa material
defendan kedua merupakan pekerja hospital defendan pertama, hospital itu
menanggung liabiliti vikarius kerana perbuatan salah defendan kedua (lihat ms
747E, 763D, 753C, 764E).
(4) X-ray yang disebutkan oleh defendan kedua amat penting kepada
kedua-dua pihak terutamanya plaintif. X-ray itu juga dapat membantu mahkamah
menentukan sama ada gelungan wayar itu menyentuh saraf tunjang tersebut.
Daripada keterangan adalah jelas bahawa orang terakhir yang memegang X-ray
itu adalah defendan kedua. Memandangkan penjelasan X-ray yang tidak
memuaskan, s 114 contoh (g) hendaklah digunakan terhadap defendan-defendan.
Defendan-defendan itu tidak mengemuka-kan X-ray itu kerana ia tidak berpihak
kepada mereka (lihat ms 754G-H, 755C-G).
(5) Dr Arumugasamy telah memberikan keterangan selepas memeriksa plaintif,
menyebabkan beberapa X-ray itu diambil ke atasnya dan setelah melihat
nota-nota kes plaintif. Keterangan beliau menunjukkan bahawa defendan kedua
telah melakukan satu kesilapan semasa pembedahan pertama itu dijalankan yang
telah mengakibatkan plaintif lumpuh. Terdapat keterangan yang jelas bahawa
gelungan wayar itu menekan saraf tunjang tersebut yang menyebabkan kelumpuhan
tersebut dan ini telah disahkan oleh pembedahan kedua itu di mana gelungan
wayar itu telah ditanggalkan yang mengakibatkan plaintif berupaya
menggerakkan bahagian atas anggota-anggota beliau (lihat ms 757I, 758H-I). Dr
Myles sebaliknya tidak melihat atau memeriksa plaintif walaupun beliau ada.
Beliau tidak melihat beberapa X-ray plaintif itu dan telah membentuk pendapat
beliau selepas melihat nota-nota kes plaintif yang telah diberikan oleh
defendan kedua kepadanya, yang menunjukkan ia dicurigai. Dr Gibson juga
merupakan seorang ahli majlis Persatuan Perlindungan Perubatan, sebuah
persatuan yang ditubuhkan untuk melindungi apa-apa kesalahan atau kecuaian
seorang ahli di mana defendan kedua adalah seorang ahli. Keterangan Dr Gibson
oleh itu adalah berpihak pada dirinya kerana beliau mempunyai kepentingan di
dalam keputusan untuk memihak kepada defendan kedua dan keterangan beliau
tidak boleh diharap. Namun keterangan Dr Arumugasamy adalah lebih boleh
dipercayai (lihat ms 757I-75558A, 758E-F, H).]
Notes
For cases on expert evidence generally, see 7 Mallal’s Digest(4th Ed, 1995 Reissue) paras 896-961.
For cases on professional negligence, see 12 Mallal’s Digest(4th Ed, 1996 Reissue) paras 559-590.
Cases referred to
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
Cassidy v Ministry of Health [1951] 1 All ER 574
Christopher Rogers v Maree Lynette Whitaker [1993] 1 CLJ 451
Kow Nan Seng v Nagamah & Ors [1982] 1 MLJ 128
Tan Ah Kau v The Government of Malaysia [1997] 2 CLJ Supp 168
Whitehouse v Jordan & Anor [1981] 1 All ER 267
Wong Fook & Anor v Abdul Shukur bin Abdul Halim [1991] 1 MLJ 46
Yeap Cheng Hock v Kajima-Taisei Joint Venture [1973] 1 MLJ 230
Legislation referred to
Evidence Act 1950 s 114(g)
Rules of the High Court 1980 O 59 r 19(2)
RK Nathan (Victoria Martin with him) (RK Nathan & Co) for the plaintiff.
Ajit Kumar (GL Ambrose with him) (Chooi & Co) for the first defendant.
PS Ranjan (later withdrew), MS Dhillon (EG Chew with him) (PS Ranjan & Co) for the second defendant.
Cur Adv Vult
LAWYERS: RK Nathan (Victoria Martin with him) (RK Nathan & Co) for the plaintiff.
Ajit Kumar (GL Ambrose with him) (Chooi & Co) for the first defendant.
PS Ranjan (later withdrew), MS Dhillon (EG Chew with him) (PS Ranjan & Co) for the second defendant.
Cur Adv Vult
JUDGMENTBY: MOKHTAR SIDIN JCA:
This is a claim by the plaintiff against both defendants for medical negligence. This was as a result of the treatment given by Dr Soo Fook Mun (‘the second defendant’) at the Assunta Hospital (‘the hospital’). The plaintiff went into the hospital after the car she was in was involved in an accident somewhere near the hospital. The undisputed facts in respect of this case is that at the time of the accident the plaintiff was 24 years. She was a young woman gainfully employed as a clerk-cum-typist. On the late evening of 11 July 1982, she, her boyfriend and two others went for supper in a car driven by her boyfriend. It was after 10.00 pm. The plaintiff was seated in the front passenger seat. The car then collided into a tree. After the collision the plaintiff immediately alighted from the car and assisted the driver and his sister out of the car. She then shouted for help and some people from a nearby mosque came to her aid. All three were then sent to the hospital in another car. At the entrance to the hospital, the plaintiff on her own alighted from the car and walked unassisted into the emergency room. She was admitted and a series of X-rays were then taken after which she was warded. At that time, she was able to move her body and limbs though she felt some pains at the neck.
In her evidence, the plaintiff stated that when the X-rays were taken and on admission she was able to move her limbs. Further in her evidence, she said that from 12.01 am until 8.00 am on 12 July 1982 the second defendant did not come and see her. The second defendant came to see her only on Monday afternoon (12 July) or the next morning. Finally when the second defendant came and examined her, she was told that she had suffered dislocation on two of her neck bones. He also told the plaintiff that injury was a small problem and asked her to rest in bed. It is clear from the evidence that at that material time the plaintiff was able to move her body and limbs. The plaintiff had to wear cervical collar in order to contain the neck pain. The second defendant ordered traction to be done on the plaintiff, ie by placing a strip under her chin and pulling her neck backwards with weights attached. This treatment was carried out for two days. When the treatment was done, the plaintiff was conscious and able to move her body and limbs. The second defendant stopped this treatment after two days when he decided that it was unsuccessful. The second defendant then tried close manipulation under anaesthetic and again this was unsuccessful. On that failure the second defendant then recommended surgery (open reduction). It is clear that the evidence up to that stage was accepted by both sides except that the plaintiff disputed the time taken for traction treatment was too short and that was why there was no effect. It is clear to me that at the time just before the surgery the plaintiff was not paralysed because she was still able to move her body and limbs. The surgery was the beginning of the problems leading to this suit. It was the contention of the plaintiff that when the second defendant did the surgery he was negligent which caused the paralysis on her.
In his evidence the second defendant stated that at about 1.30 am on 12 July 1982 while he was in his house, Dr Celine Pereira informed him that the plaintiff was admitted to the hospital with fractured cervical spine and there was also a query of an intra abdominal injury. Dr Pereira diagnosed this after checking the X-ray. The second defendant was of the opinion that a dislocated facet was more serious than fractured cervical spine. After examining the plaintiff, the second defendant discovered that the plaintiff was suffering from dislocated facets. As such, the diagnosis given by Dr Pereira was wrong. In explaining this, the second defendant said that the mistake was made because Dr Pereira was not conversant with injuries to cervical spine. It is difficult for me to accept this explanation because it is clear to me that Dr Pereira was a well qualified doctor who would be able to read an X-ray and tell the difference between fracture and dislocation. Further, Dr Pereira was not called to give evidence and it is unfair for the second defendant to say what he said. From the evidence of the second defendant himself, I am of the view that Dr Pereira had given the correct diagnosis of the injury suffered by the plaintiff. Firstly, based on the evidence of the second defendant that dislocated facets was more serious, Dr Pereira took the trouble to call the second defendant at about 1.30 am to show that she knew the seriousness and the urgency of the plaintiff’s injury. Secondly, the preventive measures of putting cervical collar on the plaintiff’s neck and placing sandbags on the bed to minimise movements as [*748] instructed by the second defendant show the injury suffered by the plaintiff was one of dislocated facets. The reason for the second defendant for saying that the mistake made by Dr Pereira was an excuse for not attending to the plaintiff immediately.
The plaintiff admitted that the second defendant did recommend surgery when the treatments stated above failed. In her evidence she said that the second defendant recommended the surgery but did not explain the risks of the surgery. She also said that she did ask the second defendant of the procedure and the risks, to be more specific the dangers of the surgery and if anything untowards could happen to her. She said the second defendant assured her that the surgery would be a minor and simple one. She gave evidence that since the assurance was given she consented to the operation (‘the first operation’) which took place on 19 July 1982. She regained consciousness after the first operation at about 8.00 pm and she felt weak and tired. She discovered that she was not able to move her body and limbs. She shouted to the nurse who was in the ward to call the second defendant, but the second defendant did not come to see her that night. The following day the second defendant came to see her and conducted reflex test on her. He assured the plaintiff that the paralysis was only temporary and that she would recover and able to move in two weeks. On 5 August 1982 (which was about two weeks after the first operation) one Dr Mohandas, a neurosurgeon, came to see the plaintiff and Dr Mohandas did a myelogram test on her. When this was done the second defendant was also present. The second defendant and Dr Mohandas did not explain to the plaintiff why that test was carried out. After that she was taken to the operation theatre where another operation (‘the second operation’) was performed. The plaintiff said that no one explained to her why the second operation was necessary and that she did not give her consent to the second operation. This issue of consent would be discussed later. The second operation was performed by the second defendant in the absence of Dr Mohandas, the neurosurgeon. It is not clear whether there was any recommendation by Dr Mohandas that he should be present when the second operation was performed. Though there was evidence that Dr Mohandas did prepare a report why the test was performed, that report was never produced in court. When the plaintiff regained consciousness after the second operation she discovered that she was able to move her hands only. She could not move her legs. According to the plaintiff, the second defendant assured her that her bones had been stabilised and that she would recover from the paralysis within a month. The plaintiff remained at the hospital for eleven months without recovering the use of her legs after which she discharged herself and admitted herself into Tung Shin Hospital.
In her evidence, the plaintiff said that she met Dr Mohandas after she was discharged from the hospital. According to her, Dr Mohandas explained to her that the wire which was placed to correct the dislocation of C4 and C5 vertebrae during the first operation was pressuring the spinal cord and that caused the total paralysis. This was discovered after he conducted the myelogram test. As a result of that the second operation was necessary. At the request of the solicitors for the hospital, the plaintiff visited [*749] Dr Mohandas to reassess her condition. This was after the filing of the present suit. The report of this reassessment by Dr Mohandas was never produced. It was unfortunate that at the time of the trial Dr Mohandas had passed away.
In the absence of Dr Mohandas and the report, the court has to rely on the evidence of the plaintiff especially as to the reason why the second operation was performed. According to the plaintiff the second operation was necessary to remove the wire pressuring the spinal cord. This piece of evidence was not contradicted by the defendants.
At Tung Shin Hospital, the plaintiff was asked for the X-rays taken on her at the hospital. She then requested the hospital for the X-rays but the defendants especially the second defendant refused to hand over the X-rayX-rays. The excuse given was that those X-rays were the only copies available and there was no technology to duplicate the X-rays. Those X-rays, purportedly to be in the possession of the defendants, were not produced in court just like the report of Dr Mohandas. That being the case I have no alternative but to infer adversely against the defendants. The importance of this, will be reflected later.
It is the case of the defendants that the injuries suffered by the plaintiff came from the motor accident, ie the neck pains, if unattended would lead to paralysis sooner or later and those were the reasons the first operation was performed on the plaintiff.
It is the case of the plaintiff that she did consent to the first operation. Though she gave her consent, she did not know the risks of that operation because the second defendant did not explain them to her. She was told by the second defendant that the operation was a minor and simple procedure and that was why she consented. Had she known that the first operation was a major surgery with high risks she would not have consented. For the second operation she maintained that she did not consent and she did not know the purpose of the operation.
The second defendant raised the issue that the plaintiff had consented to the operations and as such the second defendant should not be blamed that something had gone wrong during the operations. At p 12 of exh P2 the purported consent letter was exhibited which was worded as follows:
I, FOO FIO NA hereby give my consent for any operation or anaesthetic
which the Medical Officer may consider necessary on myself and
understand an assurance has not been given that a particular surgeon
will perform the operation.
Witness: S/N Chuah Date: 5 August 1982
Signed: (Plaintiff’s right thumb)
Plaintiff denied that she gave the consent for the second defendant to perform the operation. Evidence was adduced by the defendants that when the plaintiff was admitted to the hospital she was asked to sign a consent form. For that purpose it is only proper for me to see the contents in the admission form which are as follows:
[*750]
HOSPITAL ASSUNTA
PETALING JAYA
ADMISSION FORM
Name: FOO FIO NA Hospital No: 5493763
Blood Group: Date of Birth: 24 yrs Sex: F
Address: 22 Road 37, OUG, Kuala Lumpur
Occupation: Gen Clerk Service: ie Medical, surgical, paediatrics
Employer’s Name and Address: Juru Tama Sdn Bhd
Ward: Surgical Date of Admission: 12 July 1982 Time:
Consultant:
Transferred from: To:
Religion: Christian Race: Chinese Marital Status: S
Referred by: IC No: 5493763
Destination on discharge: Discharged: 20 April 1983 Time: pm
Next of Kin: Name: Gordan Foo Relationship: Brother
Address: 40 Jalan SS14/3B, Subang Jaya Tel No: 569711(O), 710213(H)
I, FOO FIO NA hereby give my consent for any operation or anaesthetic
which the Medical Officer may consider necessary on myself and
understand an assurance has not been given that a particular surgeon
will perform the operation.
Witness: S/N Kong Date: 13 July 82 Signed: Foo Fio Na
S/N Kaur Date: 15 July 82 Signed: Fio Na Foo
This is to certify that I, am taking my departure from the hospital at
my own risk and against the advice of the medical officer.
Witness Date: Signed:
I, Foo Fio Na hereby agree to my treatment (lumbar puncture),
medication and such diagnostic procedures as the doctor in attendance
deems necessary for myself during treatment in this hospital.
Signed: (Thumb print) Date:
Admitted by Dr Celine (SR Khoo)
Final Diagnosis: Code: Date and Nature of Operation: Code:
Primary 14/7 Attempted MUA of cervical spine.
Secondary 19/7/82 Open reduction, gallies wire & posterior or spinal
fusion.
5/8/82 Re-exploration, removal of wire and Rt
Laminotomy.
From the above, I agree with the plaintiff’s counsel that any patient admitted into the hospital had to fill up this form and sign it. This was the standard admission form which every patient should fill and sign. In that form there was already the standard stipulated consent given by the patient. It was contended by counsel for the plaintiff the general consent contained in the admission form was not sufficient to admonish the duty of the [*751] defendants to get the consent of the plaintiff unless it could be shown the plaintiff was given the explanation why the operation was necessary and the risks of that operation. Since the plaintiff in her evidence had stated that she was not told the nature of the operation and its risks, the onus now shifts to the defendants to show to the court that they had explained the necessity and the risks to the plaintiff. The defendants did not call any witness to testify to this. It is obvious to me that they could not do so because the consent as stated above was given on 13 July 1982 (the date stated in the admission form). On that date it was not known whether there was any necessity for the plaintiff to undergo an operation because the progress of the conservative treatments was not known. The operation was carried out after conservative treatments had failed. As such it is clear to me that when the consent in the above stated form was given it was not known whether the plaintiff needed the operation and what sort of operation it would be. It could also be concluded that at the time when that consent was signed both defendants did not know whether the plaintiff really needed the operation. As such I am of the view that it would not be possible for the second defendant to explain the procedure and the risks of the operation when the consent in the above stated form was given or signed. For that reason I believe the plaintiff when she said that the second defendant told her that the first operation (open reduction) which took place on 19 July 1982 was a minor operation to correct the little problem of the neck that she was suffering. In other words she was not told of the risk of paralysis coming from that operation.
I now turn to the second consent which is at p 12 of exh P2 which is worded as follows:
I, FOO FIO NA hereby give my consent for any operation or anaesthetic
which the medical officer may consider necessary on myself and
understand an assurance has not been given that a particular surgeon
will perform the operation.
Witness: S/N Chuah Date 5 August 1982
Signed: ( Plaintiff’s right thumb)
(Emphasis made)
As can be seen this consent was dated 5 August 1982 which was after the first operation and she became totally paralysed in the limbs both upper and lower. That being the case the question of the plaintiff affixing her thumbprint on the consent form voluntarily, comes into play. Somebody had to do it for her. She could not have affixed by herself because she was not able to move her hands and neither could she resist the affixing of it if someone did it for her. She gave evidence that she did not consent to the second operation. The burden is on the defendants to satisfy the court that the consent given was voluntary. It is clear to me that the affixing of the thumbprint was not done in the presence of a relative or a friend of the plaintiff. The second defendant and the staff of the hospital knew of the existence of the brother of the plaintiff and her friend and yet they affixed the thumbprint in their absence. I could not understand the haste in doing that because the plaintiff was already paralysed for two weeks and that she was an invalid. They could easily inform the brother and the friend to [*752] witness the affixing to signify the voluntariness of affixing the thumbprint. The defendants ignored this simple procedure and they had to pay the price of ignoring it when the plaintiff denied giving her consent voluntarily.
As to the issue on consent I need to refer to a recent decision of Tan Ah Kau v The Government of Malaysia [1997] 2 CLJ Supp 168 where Low Hop Bing J at pp 185-187 said:
It is the plaintiff’s case that the consent was not or not adequately
explained by the defendant’s agents or servants to the plaintiff. The
defendant submitted that the consent was indeed explained and
interpreted to the plaintiff.
In my judgment, the issue of the defendant’s liability may be
established by the fact that the plaintiff has not given his consent to
the operation and that consent (even if it had been given) had not been
fully explained to the plaintiff in order to enable him to understand
the nature and consequences of the consent in relation to the operation
and the diagnosis.
The plaintiff maintained that he signed two blank forms at the same
time and he was never explained before the operation. He signed a blank
form for the myelogram and was never explained the reason by the
doctor. Plaintiff was told that if he was not operated on, he would not
be able to walk in the future. He was told by the doctor that two weeks
after the operation, he would find relief from pain and that was why he
consented. …
…
The question for the court to decide is whether, at the time the
plaintiff signed the consent forms, the plaintiff understood the nature
and consequences of the consent and whether the plaintiff knew the
subject matter which was central to his consent, in the light of the
evidence that ‘… most patients opt out when the complications are
explained to the patient …’
…
In Christopher Rogers v Maree Lynette Whitaker [1993] 1 CLJ 451,
the Australian High Court (the highest court in Australia) held, inter
alia, that:
… It is the duty of a doctor to warn the patient of any
material risk, particularly if the patient, if warned of the
risk, considers it to be significant … A risk which entails a
duty to warn is one which is foreseeable and real but not one
which is ‘far-fetched or fanciful’.
In the instant case, where the risk of paralysis was very real, more so
when the tumour was intramedullary, it is absolutely essential for the
attending surgeon such as DW1 or any doctor assisting him to warn the
patient of the foreseeable risk of even a finding of intramedullary
tumour. The duty to warn the patient arises here because the risk is
both real and foreseeable, as was admitted by the defence expert DW6.
…
Similar factual situations existed in the present case. It is significant to note that the plaintiff gave evidence that when she was asked to sign some papers for admission she was also signing the consent to an operation without her in fact knowing it. According to the evidence when she signed the consent she did not know that she needed the operation on the spinal cord. Even assuming that she needed the operation she was not told that it would be a major one which might lead to paralysis. Before the operation she was told and assured by the second defendant that the operation was only a minor one. The reason and the procedure were never told to the plaintiff by the second defendant. The failure to do so and the misrepresentation by the [*753] second defendant that it was a minor operation clearly shows that the plaintiff would not consent to such an operation and the consent, if any, was not obtained properly.
As to the first operation, it is clear to me that the second defendant had done something which caused the paralysis. I am satisfied that the paralysis was caused by the wire loop compressing the spinal cord and when the wire loop was removed during the second operation the plaintiff was able to move her upper limbs. It does not matter what explanation the second defendant gave for removing the wire loop because the fact remained that the plaintiff recovered the use of her upper limbs after the removal of the wire loop. The wire loop inserted by the second defendant during the first operation was the cause of the paralysis. The second defendant was again negligent when he did not take any step to remedy the paralysis immediately. Instead he waited for two weeks to do the remedial operation and all that time he kept on assuring the plaintiff that she would recover from the paralysis which was only temporary in nature. In my view the above shows that the second defendant failed to exercise the care and skill of an ordinary competent practitioner in that profession as stated by the Federal Court in the case of Kow Nan Seng v Nagamah & Ors [1982] 1 MLJ 128.
From the evidence before me, it is clear to me that something had gone wrong when the second defendant performed the first operation whereby the plaintiff suffered total paralysis. The second operation was performed to ratify this whereby the plaintiff recovered the use of her upper limbs. It is also clear to me that the plaintiff was not paralysed before the first operation.
The main evidence of the defence came from the second defendant. The second defendant gave evidence that he was a visiting consultant to the hospital at the material time. He admitted that he was informed of the plaintiff at about 1.30 am on 12 July 1982 by Dr Celine Pereira who had called him in the house. He instructed Dr Celine to place cervical collar around the plaintiff’s neck and to use sandbags to minimise the head movements. He saw the plaintiff at about 8.30 am that day. It is obvious to me that when the second defendant was informed by Dr Celine about the plaintiff at about 1.30 am, the plaintiff’s case was considered serious, otherwise there was no necessity for Dr Celine to call the second defendant who was only a visiting consultant at that hour. The second defendant instead of coming immediately to examine the plaintiff merely gave oral instructions to Dr Celine. When the second defendant did not attend immediately to the plaintiff and only gave oral instructions by phone to Dr Celine it shows the attitude of the second defendant which in my view tantamount to negligence. After examining the plaintiff, the second defendant told the plaintiff that she had dislocation of C4 and C5 vertebrae with laterally locked facets. He found that this was uncommon and serious, as it was a matter of time she would become paralysed. Thus in his own words the second defendant admitted that the plaintiff’s condition was serious and yet he took his own sweet time to attend to the plaintiff. He said that he explained to the plaintiff the possibility of paralysis and that it was [*754] important to have the dislocated vertebrae reduced to restore the normal diameter of the spinal canal. Obviously, as I have stated earlier, the plaintiff denied this and on the other hand maintained the second defendant told her that her condition was a small problem.
The second defendant also gave evidence that since the dislocation was not reduced 24 hours after the traction treatment, he was of the opinion that treatment failed. He then did a close manipulation under general anaesthesia to unlock the locked facet joints. Three attempts were made and according to the second defendant, all those attempts failed. The second defendant then recommended open reduction to the plaintiff. He gave evidence that he told the plaintiff the purpose of this treatment which was to retain the reduction by wiring and bone grafting and that there was a risk of paralysis. The plaintiff admitted that she was informed of the purpose of the treatment but denied that the second defendant told her of the risk. Instead, she said that the second defendant informed her the treatment was a simple and minor operation. For that reason she gave her consent to the treatment. It was common ground that the first operation was performed on 19 July 1982.
When the first operation was performed, other than the plaintiff and the second defendant, only Dr Sushila Nair, the anaesthetist, was present. She gave evidence that it was her duty to administer the anaesthetic and to monitor the plaintiff’s vital signs during the first operation. She also said that if there was slow compression of the cord she would not be able to tell through the pulse rate reading. That was all she could tell about the first operation. It appears to me that she did not know what the second defendant did during the first operation. The second defendant in his evidence stated that during the first operation he used periosteal elevator to lever the dislocated vertebrae into their original position. A loop of wire was then passed sublaminar on C4, hugging the bone very closely. He then tightened and looped the loop around the spinus process of C5. He then knotted the wire. He stated further that an X-ray was taken of the neck bones and the x- ray showed that the dislocated C4 and C5 vertebrae was reduced and that the wire was not in the spinal cord. He then did bone grafts which were taken from the hip bone and placed at the cervical vertebrae from C3 to C6. He said at no time the wire was compressing the spinal cord and that the first time he heard about it was in court. The X-ray mentioned by the second defendant was never produced in court despite requests being made by the plaintiff for the X-ray and also for it to be produced in court. Its whereabouts is still a mystery until today. From the evidence of the second defendant it is clear to me that that X-ray is of vital importance to both sides especially the plaintiff. In my view that X-ray would help the court to determine whether the wire loop pressured the spinal cord. It is alleged by the plaintiff through other evidence that the wire loop touched the spinal cord. The production of that X-ray would be able to help the second defendant to negate the allegations by the plaintiff.
It is pertinent for me at this stage to touch on the X-rays. Mr Stephen Wong, the hospital’s medical records officer, told the court that one Dr CN Chew, on behalf of the plaintiff, requested for the X-rays taken on the [*755] plaintiff. That request was referred to the second defendant. This was done on specific instructions of the second defendant. He sent the request and the X-rays to the second defendant. He did not know what happened to the X-rays after that. He was not sure whether they were returned to the records office or whether they remained in the possession of the second defendant. The second defendant admitted that he did receive the request by Dr Chew from Mr Stephen Wong together with the X-rays. He said he handed the X-rays to a man purportedly to be the representative of the plaintiff to be handed over to Dr Chew. He said he could not remember the name of the man and he did not record it anywhere the name of the man who took the X-rays or obtained any acknowledgement for that. It is clear Dr Chew never received those X-rays. By then the second defendant knew that there was a medico-legal case pending. It appears to me that it was unlikely he did what he said he did. In my view he never handed those X-rays to the man. If it is true then by his action it showed that he was already negligent in handing over those important documents to an unknown person.
Sensing that the court might not believe his story on the X-rays the second defendant then changed his story and gave evidence that those X-rays could not be found. To strengthen his story the second defendant gave evidence that the X-rays were vital to his defence. As I have said earlier, the X-rays were also vital to the plaintiff. From the evidence and the record available it is clear to me that the last person to handle the X-rays was the second defendant. There was clear evidence to show and it was recorded that Mr Stephen Wong handed those X-rays to the second defendant after the request by Dr Chew for them. Though the second defendant said that he handed those X-rays to the records office, there was no evidence ever recorded that this was done. As I have said earlier it is clear, the X-rays were never given to Dr Chew. Both defendants told the court they could not trace the X-rays when the records office of the hospital moved and might have been misplaced. In my view, taking into consideration the reputation of the efficiency of the hospital and the importance of those X-rays to the defence, this story was very unlikely. Having heard the evidence, I could not help but infer that the X-rays were in the possession of the second defendant since they were given to him by Mr Stephen Wong after the request by Dr Chew. In my view the defendants (especially the second defendant) did not produce those X-rays because they were not favourable to them. After hearing the evidence, it is not wrong for me to conclude that the X-rays were in the possession of the second defendant and there was no record of X-rays being returned to the records office.
As I have said earlier, the plaintiff in her evidence said that Dr Mohandas, the neurosurgeon, told her that after seeing the X-rays and after conducting the myelogram test, Dr Mohandas recommended that a second operation be done on the plaintiff. He made this recommendation after he found the wire loop was pressuring the spinal cord. It is clear to me that Dr Mohandas would not be able to know unless he had seen the X-rays. On seeing this he did a myelogram test which confirmed his findings. He then recommended a second operation to be performed immediately on the [*756] plaintiff to remove the wire loop. The second defendant complied with this and after the second operation the plaintiff recovered partial movements of her limbs. This evidence lend credentials to the evidence of the plaintiff. That shows how important those X-rays are to the plaintiff.
In view of the unsatisfactory explanation of the non-production of those X-rays in court by the defendants I have no alternative but to invoke s 114(g) of the Evidence Act 1950 against the defendants. They were never produced in court although counsel for the plaintiff requested for them to be produced. Weight should not be given to the explanation by the second defendant that his understanding of the medico-legal case was that of the motor accident because it is clear to me that whether it is a motor accident case or a medical negligence case those X-rays were needed by the plaintiff.
The second defendant adduced evidence that the procedure that he had adopted was the correct procedure. He gave evidence that after the first operation the vital signs on the plaintiff were steady and the function of the spinal cord was normal. He said that in the recovery room he had asked the plaintiff to move the upper and lower limbs which she did. He also conducted normal testing on sensation. The plaintiff, however, denied this. In her evidence she said that she was very weak when she regained consciousness. She then discovered that she was not able to move her limbs. She shouted to the nurse on duty to call the second defendant who did not attend to her immediately. It is obvious to me there is direct conflict between the evidence of the second defendant and the plaintiff in that the second defendant said that the plaintiff was not paralysed immediately after the first operation whereas the plaintiff said she was. I tend to believe the plaintiff because it was not possible for her to move her limbs when she was unconscious. The second defendant said that he conducted the test on the plaintiff when she was in the recovery room which means that she was still unconscious or very groggy. The plaintiff herself gave evidence that when she regained consciousness the second defendant was not there. She then discovered that she could not move her limbs and then she shouted to the nurse to call the second defendant. The plaintiff gave evidence that from the time she regained consciousness after the first operation until the second operation she was not able to move her limbs. There was no evidence to show otherwise. The second defendant admitted that he did not record in the case notes or anywhere else what transpired from the time the plaintiff was under anaesthetic until she regained consciousness. It is clear from the evidence the plaintiff was totally paralysed after the first operation. The defendants did not dispute that the plaintiff was paralysed after the first operation, the only dispute was when did the paralysis begin? From the evidence, I am of the view that the paralysis occurred after the first operation until the plaintiff regained consciousness which was within 12 hours after the first operation. The issue was whether the paralysis was caused by the first operation. This was also confirmed by the evidence that the wire loop placed by the second defendant during the first operation which pressured the spinal cord. Was the treatment and the first operation conducted by the second defendant the normal practice in treating the plaintiff?
For this the plaintiff and the second defendant called an expert witness each to testify. The plaintiff called Dato’ Dr Arumugasamy to testify on her behalf. In his evidence Dr Arumugasamy said in a case such as the plaintiff’s he would have proceeded with conservative treatments first before proceeding with the open reduction. By conservative treatments he meant traction and wearing of cervical collar on the neck to reduce the pain. He gave evidence that the conservative treatments would take some time before they could produce any result and have any effect. This could not be done two or three times or within one or two days. The traction should be carried out for sometime and could be extended for months. The second defendant admitted that the traction treatment could be extended for three months depending on the response of the patient. Dr Arumugasamy gave evidence that the plaintiff was able to move when she was admitted and she complained only of the pains in the neck. In such a situation, he would proceed with conservative treatments first. The time taken for such treatments would depend on the response of the patient. It would take a couple of days or months before it could be concluded that the patient is not responding to those treatments. If the patient responded immediately, then the time taken for the treatments would be shortened and the treatments should be discontinued as soon as the patient recovered. Dr Arumugasamy was of the opinion that the time taken by the second defendant in administering the conservative treatments which was only for two days would not be sufficient to determine whether the plaintiff was responding to the treatments or not. He went on to say that the conservative treatments would be prolonged before it could clearly be concluded that the plaintiff was responding to the conservative treatments or not.
Dr Myles Gibson, a neurosurgeon from the United Kingdom, was called by the second defendant to give evidence as an expert witness on his behalf. In his evidence, Dr Myles Gibson described that the dislocation of C4 and C5 vertebrae with bilaterally locked facets as the whipping movements which resulted in the jumping of the facets one over the other and the forward movement of the upper vertebra upon the lower. He was of the opinion that if this was left untreated, the plaintiff would have developed progressive weakness of all four limbs and ultimately she would have sustained paralysis of all the limbs. This so called expert witness was asked by the second defendant to contradict Dr Arumugasamy’s evidence. With the greatest respect I am of the view that he did not do so. This witness gave evidence what would be the effect if the injury was left untreated. Dr Myles Gibson did not specifically state when the paralysis would set in in the case of the plaintiff. It could be months or years later but one thing is certain that it would not occur immediately after the motor accident. On the other hand, Dr Arumugasamy gave evidence that the condition of the plaintiff if untreated would remain the same unless she does a headstand. The only thing she would suffer is the pains.
Dr Arumugasamy gave his evidence after examining the plaintiff and caused X-rays to be taken on her. He also looked into the case notes of the plaintiff. Dr Myles Gibson, in his evidence, admitted that he did not see or examine the plaintiff though she was available nor did he see the X-rays of [*758] the plaintiff. He also admitted that he formed his opinion after he saw the case notes of the plaintiff given to him by the second defendant. He further admitted that he prepared his opinion in the office of the solicitors for the second defendant after Dr Arumugasamy had given his evidence and the notes of proceedings were with the solicitors. I was amazed and appalled with the admissions by Dr Gibson because I am of the view that a doctor could not give any opinion what more an expert opinion as to the injury of any person without seeing and examining that person and also in the present case without seeing the X-rays of that person. His expert opinion was based entirely on the case notes given to him by the second defendant which had been shown to be suspected. It was not proven in court that the case notes given to him was the one produced in court. This led me to comment we in Malaysia are not living in the jungle anymore whereby an opinion by a white man is to be accepted as expert opinion and the only opinion to be accepted.
Dr Myles Gibson himself admitted in evidence that if the case notes given to him were incorrect or had been tampered with, then his opinion would be wrong. The plaintiff had succeeded in showing that several entries in the case notes had been altered or tampered with and as such they were suspected especially in material entries such as laminotomy or laminectomy and when the discovery of the paralysis. The plaintiff had succeeded in showing the case notes had been altered or tampered. It is to be noted that the plaintiff had succeeded in establishing that Dr Gibson at the material time when he gave evidence in court was a council member of the Medical Protection Society which is established to protect any undoing or negligence of a member. The second defendant was a member of that society. As such Dr Gibson’s evidence is self-serving on the society which has interest in the decision to favour the second defendant. As such his evidence could not be relied upon as what had been stated by Lord Wilberforce in Whitehouse v Jordan & Anor [1981] 1 All ER at p 276:
While some degree of consultation between experts and legal advisers is
entirely proper, it is necessary that expert evidence presented to the
court should be, and should be seen to be the independent product of
the expert, uninfluenced as to form or content by the exigencies of
litigation. To the extent that it is not, the evidence is likely to be
not only incorrect but self defeating.
It is clear to me the report prepared by Dr Gibson was done solely to counter the evidence of Dr Arumugasamy and not an independent and neutral opinion of the patient.
After hearing the evidence of Dr Arumugasamy and Dr Gibson, I am of the opinion that the evidence of Dr Arumugasamy is more reliable. His evidence shows that the second defendant had committed an error when the first operation took place which caused the paralysis. This was confirmed by the second operation when the wire loop was removed and the plaintiff was able to move her upper limbs. To me there is clear evidence that the wire loop which compressed the spinal cord caused the paralysis. Though the plaintiff was able to move her upper limbs, the paralysis in the lower limbs persisted.
During the trial, counsel for the plaintiff produced a passage from Campbell’s Operative Orthopaedics (p 3123 of exh P12) and showed it to the second defendant. In that it was stated that the normal practice of using the periosteal elevator, there must be traction constantly asserted to the head. The second defendant agreed with that passage except for ‘traction be constantly asserted’ where he said that the suggestion by the book on that was a controversial one. The second defendant did not dispute that the text is a leading write-up on orthopaedics and he was not able to show any other authoritative book which contradicts that suggestion in exh P12.
The second defendant was shown another book entitled Manual of Internal Fixation (exh P17) in particular a passage at pp 627-628 where it was stated that in a case of paralysis occurring immediately after surgery an immediate re-surgery ought to be done. While agreeing with the recommendation made by the book, the second defendant stated that the recommendation was not found in the 1979 edition of the same book which he said was in his possession. He was given time to produce that edition but was not able to do so. As such there was no way to verify what he had said. It is the submission of the learned counsel for the plaintiff that that is the standard procedure and this passage appeared in every edition of the said manual.
Despite discovering that the plaintiff was paralysed when the second defendant visited her on 20 July 1982, the second defendant did nothing until 27 July 1982 (about seven days later) when he did lumbar puncture on the plaintiff to find out whether there was any compression on the spinal cord. I could not understand why he did the lumbar puncture when he gave evidence that he was sure that the wire did not compress the spinal cord and he had double checked it by viewing the missing X-rays. The only explanation as I see it was that the second defendant knew or had an inkling that the wire loop was compressing the spinal cord. On 29 July 1982, the second defendant discovered that the plaintiff had developed spasms of the muscle on the lower limbs and the paralysis worsened. Further, she had developed ankle clonus. He admitted that the spasms of the muscles were severe. The second defendant gave evidence that on 2 August 1982 there were some suggestions of improvement but there was none on 3 August 1982 and 4 August 1982. In my opinion this could not be true because the plaintiff was already paralysed from 20 July 1982. On 3 August 1982, the second defendant contacted Dr Mohandas, the neurosurgeon, to do a cervical myelogram on the plaintiff. After the myelogram test was done, Dr Mohandas told the second defendant that there was a complete blockage of flow of dye at C4. Dr Mohandas suggested to the second defendant to re-explore to find out the cause of the blockage. It is to be noted that the second defendant took two weeks to consult the neurosurgeon after he had discovered the plaintiff had suffered paralysis. He did not give any reason for the delay.
The second defendant admitted that he did consider a need for a myelogram test before doing the close and open reduction but he did not do so. His explanation for not doing it was because he wanted to exclude prolapsed disc. He was of the view that normally such injury suffered by the [*760] plaintiff after the motor accident would be accompanied by prolapsed disc. Despite its importance he chose not to record it in his case notes. It is clear from the evidence that the myelogram was only done after the plaintiff was referred to Dr Mohandas and Dr Mohandas did the test. In my view, the myelogram never crossed the second defendant’s mind until it was done by Dr Mohandas. Had the second defendant done the test before the first operation he would have discovered that the first operation would not be necessary or that the operation needed to be done by a specialist. The second defendant was in such a hurry to do the open reduction without going into the necessary tests to determine the internal injuries of the plaintiff. The open reduction caused the paralysis which the plaintiff is now suffering.
As to the re-exploration (second operation) it is clear to me that it was done on the recommendation of Dr Mohandas. Again this was done in haste without the presence of Dr Mohandas, the consultant who would be able to assist or guide him. I could not help but come to the conclusion that the second defendant has something to hide from Dr Mohandas.
In his evidence the second defendant stated that during the second operation he found the wire loop intact and not broken. He cut the wire and removed it so that he could do a laminotomy on the plaintiff. He maintained that without a laminotomy he could not inspect the cord thoroughly. Counsel for the plaintiff took up the issue whether the second defendant did a laminotomy or a laminectomy. The issue came up when the case notes showed that the word laminotomy superimposed on the word laminectomy. The second defendant in his evidence said that during the second operation he found that the blockage discovered by Dr Mohandas was due to the swelling of the spinal cord. Incidentally there was no evidence that Dr Mohandas had said that there was a blockage and it was the evidence of the plaintiff that Dr Mohandas had told her that the cause of the paralysis was the compression of the spinal cord by the wire loop placed by the second defendant. The second defendant went on to say the swelling was caused by the motor accident which dislocated the C4 and C5 vertebrae leading to a ‘kink’ in the spinal cord. The ‘kink’ had injured the spinal cord tissue which led to the swelling. He denied that the ‘kink’ was caused by his treatment, namely the wire loop. He went on to say that he could not prevent the swelling because it was beyond his control. Since he had done a laminotomy on the C4 vertebra which had weakened, he did not re-insert the wire.
It is difficult for me to accept the evidence of the second defendant on this because the evidence adduced in court showed there were no neurological deficits on the plaintiff after the motor accident. If the evidence of the second defendant on this is true then the plaintiff would have suffered paralysis immediately or soon after that. It was not disputed that soon after the motor accident the plaintiff was able to walk and move around even though she was suffering some pains at the neck. Secondly, if the ‘kink’ was the result of the motor accident, the second defendant would have discovered it during the first operation and he should have recorded the discovery in the case notes. It should be an important discovery. He himself [*761] admitted that if he had discovered any swelling he should have recorded it in the case notes and much so in the case of a ‘kink’ which is an uncommon occurrence as admitted by him. The evidence and opinion of Dr Arumugasamy on the ‘kink’ was not contradicted by cross-examination and as such his opinion should stand. The evidence of the second defendant on the ‘kink’ should therefore be rejected.
There are direct contradictions between the evidence of the plaintiff and the second defendant as to when the paralysis first began. Plaintiff stated that the paralysis started when she regained consciousness after the first operation. The second defendant gave evidence that the plaintiff complained of no feeling at about 8.00 or 9.00 am in the morning after the operation, ie 20 July 1982. He said that he had tested the plaintiff soon after the first operation for sensation and that she had responded to the test. The plaintiff gave evidence that when she regained consciousness after the first operation the second defendant did not visit her at all that night or the early hours of 20 July 1982 indicating that the second defendant could not have done the test just after she regained consciousness. There was no entry of the exact time as to the visit by the second defendant on 20 July 1982 but there was an entry at 8.00 am on 20 July 1982 in the case notes stating ‘sensation felt in all limbs’. This contradicted the evidence of the plaintiff who said that when she regained consciousness after the first operation she could not move her limbs. Then there was a squeezed entry in the case notes at about 12.00 noon on the same date stating ‘patient can’t feel any sensation at both legs’. It is amazing that there were entries in the case notes of the sudden change of the condition of the plaintiff within a space of four hours.
During cross-examination the second defendant stated that the squeezed entry was made by one of the nurses. Plaintiff in her evidence said the second defendant did not come to see her at 8.00 am on 20 July 1982 and that she complained about the paralysis to the nurse only at about 12.00 noon on the same date. As can be seen from the case notes all entries were in normal spacing and in sequence. The squeezings were also done when there were scratchings. It appears to me those squeezings were done in order to favour the second defendant. It is puzzling to me that an important discovery or complaint by a patient was only done by way of squeezing. It is clear to me that all other entries made by the nurses in the case notes were meticulous indicating that the squeezed entry was an afterthought. There was another suspicious entry made by the second defendant on 20 July 1982 stating ‘no feeling since this am. Immediately post-op she could move her upper and lower limbs and felt the pin pricks from the testing pin’. This entry appears to me to be self-serving. After evaluating the evidence of the plaintiff and the second defendant and also looking at the various entries in the case notes, I am inclined to believe the plaintiff when she said that when she regained consciousness after the first operation she discovered she could not move her limbs.
The contradictions, in my opinion, are not really material because the fact remained that the paralysis of the plaintiff occurred after the first operation.
The defendants called Theivani a/p Mudaliar (DW 6) to give evidence. She was a staff nurse attached to the hospital at the material times. She was asked to explain the squeezed entries in the case notes which was to confirm what had been said by the second defendant in respect of the squeezed entries. She admitted during cross-examination that she was not able to tell whether the plaintiff was awake between 8 am to 12 noon on 20 July 1982. She confirmed that a patient had to be conscious in order to test her sensation. Yet there was a squeezed entry admitted to be done without any time and date but before the entry of 12 noon on 20 July 1982 stating ‘sensation felt in all limbs’. She agreed with counsel for the plaintiff that it was wrong for her not to record the time and the date of the entry in the case notes. After observing her when she gave evidence in court I found her to be evasive and not reliable. It is clear to me that the case notes had been tempered with by the squeezed notes and it was done to help the second defendant.
As I have said earlier another issue taken up by counsel for the plaintiff during cross-examination of the second defendant was whether the second defendant did a laminectomy or a laminotomy on the plaintiff. A laminotomy is a process in making a window in the lamina of the vertebrae to inspect the spinal cord whereas a laminectomy is done for purposes of decompressing a mechanical compression on the spinal cord including a compression caused by a wire. The second defendant was shown an entry at p 162 of exh P2 (the case notes) dated 5 August 1982 stating as follows:
‘Am — myelogram done — have seen by Dr Soo at X-ray department.
For exploration of …
KIV laminectomy this … pm.
The second defendant denied that he did a laminectomy on the plaintiff despite this entry. The second defendant maintained that he only did a laminotomy and not a laminectomy on the plaintiff. There were other entries in the case notes showing the word ‘laminotomy’ was superimposed by the word ‘laminectomy’ which had been covered by blanco. It occurred at several places in the case notes. The second defendant’s explanation was that he had given instructions to the nurses that he had done laminotomy and not laminectomy. Even with those instructions the nurses made mistakes or confused by writing the word laminectomy and not laminotomy. That was the reason for those corrections. The second defendant was also shown an elaborate entry in the nurses’ ward report dated 7 August 1982 showing that on 5 August 1982 the second defendant did a re-exploration on the plaintiff whereby the wire was removed. This shows that a laminectomy was done. Though he admitted that the entry was correct, he still insisted that he had done a laminotomy and not a laminectomy. It is difficult for me to accept the explanation given by the second defendant especially when it is clear to me that the nurses employed by the hospital were well-trained and knew the medical terms used. Further, the explanation would be reasonable if the correction occurred only once, but this was done in almost all entries of the word ‘laminectomy’.
Again, the second defendant himself signed a request for a pathological specimen where the entry dated 7 August 1982 (p 88 of exh P2) shows that a laminectomy was done on the plaintiff. This was never corrected even though he signed it. Viewing this as a whole I am of the opinion that the corrections were afterthoughts, after the second defendant knew of an impending medico-legal case.
It was not disputed that the plaintiff was examined by Dr Mohandas at the request of solicitors for the defendants and he had prepared a report of that examination. Defendants did not produce this report though counsel for the plaintiff had questioned the second defendant on this and suggested that the report clearly stated that a laminectomy was done by the second defendant. The second defendant did not deny or produce the report to contradict the allegations by the plaintiff.
After considering the evidence of both the plaintiff and the second defendant, there is no doubt in my mind that the plaintiff’s paralysis was caused by the first operation conducted by the second defendant and not due to the motor accident. The second defendant was negligent in tying the wire loop which caused compression to the spinal cord which led to the paralysis. The second defendant was also negligent in not doing anything immediately after the discovery of the paralysis to remedy it. He was also negligent when he did the laminectomy (re-exploration) in the absence of the consultant who had pointed out the cause of the paralysis.
Learned counsel for the hospital submitted that the plaintiff failed to establish negligence on the part of the hospital. It is true that there was no direct evidence of negligence per se against the hospital. In their defence the hospital denied that the second defendant was their servant or agent. That being the case, the hospital was not responsible for the negligent act of the second defendant. On the other hand, the plaintiff contended that the hospital was vicariously liable for the act of the second defendant because the second defendant was the servant or agent of the hospital. In my view the onus is on the plaintiff to prove that the second defendant was the servant or agent of the hospital. The learned counsel for the plaintiff in his submission relied on the evidence of the second defendant’s statement of defence whereby the second defendant pleaded and admitted that at all material times he was the servant or agent of the hospital. The second defendant in support of that evidence produced a letter dated 8 November 1984 (ehb D11). That was a letter of his resignation as an employee of the hospital. He admitted that he was employed by the hospital long before the incident. Even after his resignation his relationship with the hospital remained when he became a visiting consultant with the hospital. In their statement of defence, the hospital did not deny that the second defendant to be in their employment at the material times. The hospital did not adduce any evidence to show that the second defendant was not their employee. It is clear to me at the material times the second defendant was in the employment of the hospital. This was strengthened by the evidence of Dr Nair, Ms Theivani a/p Mudaliar and the operational manager of the hospital who had referred the second defendant the staff of the hospital and had taken instructions from the second defendant. In this respect I have [*764] only to refer to what had been said by Lord Denning in the case of Cassidy v Ministry of Health [1951] 1 All ER 574:
The liability of hospital authorities for the negligence of a doctor on
the permanent staff of the hospital does not depend on whether he is
employed under a contract of service or under a contract for services.
It depends on who employs him. If the patient himself selects and
employs the doctor, the hospital authorities are not liable for his
negligence, but where the doctor, be he a consultant or not, is
employed and paid, not by the patient, but by the hospital authorities,
the hospital authorities are liable for his negligence in treating the
patient.
In the present case here it is clear from the evidence that the plaintiff after the motor accident admitted herself into the hospital where she complained of pains at the neck. After the admission she was seen by one Dr Pereira who informed the second defendant of the injuries suffered by the plaintiff. The second defendant then instructed Dr Pereira what to do with the plaintiff. At that time the plaintiff did not know what she was suffering from nor did she request for the second defendant to treat her. She sought treatment from the hospital. She filled up and signed the admission form. It is clear to me from the evidence that she was seeking treatment from the hospital and she would pay the fees, for the treatment that she had received, to the hospital. The second defendant was assigned by the hospital to treat the plaintiff. Whatever payments to the second defendant were made by the hospital as salary. There is no evidence that the plaintiff specifically requested or demanded that the second defendant treat her or that she promised to pay the second defendant for his services. Whatever payments were to be made to the hospital and not to the second defendant. In view of that it is clear to me that the second defendant at the material times was a servant of the hospital. That being the case the hospital were vicariously liable for the wrongful act of the second defendant.
It has been established in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, the principle regarding a doctor’s duty of care which was:
(i) a doctor is not negligent, if he is acting in accordance with a
practice accepted as proper by a responsible body of medical men
skilled in that particular art, merely because there is a body of
such opinion that takes a contrary view.
It is the plaintiff’s case that she was not forewarned of her condition before the first operation and she was not warned by the second defendant of the possible residual defects, one of which was paralysis. Though disputed by the second defendant, from the evidence adduced in court, I believe the plaintiff. Before conducting the first operation it is clear to me that the second defendant did not do a thorough examination of the plaintiff to determine what caused the pains to the plaintiff. Further, he did not conduct the conservative treatments properly and sufficiently before the first operation. It is clear from the evidence of Dr Arumugasamy and the textbooks that the conservative treatments must be administered properly and carried on for a considerable period to produce any result. This [*765] appeared to me to be the normal practice. Furthermore, it is clear from the evidence of Dr Arumugasamy that there was no danger from the pains and the injuries suffered by the plaintiff that paralysis would set in immediately. According to him only a headstand would cause paralysis. As such there is no necessity for the second defendant to do the open reduction (first operation) within such a short period. Dr Gibson himself confirmed the view that paralysis would not set in immediately. As such the conservative treatments should be continued for a considerable period which may be months and not within one or two days. It is clear to me that treatments conducted by the second defendant was not normal. As I have said earlier, from the evidence I believe the plaintiff when she said the second defendant told her that the first operation was a minor problem and he did not inform her of the risks of paralysis. The second defendant was negligent in not giving a proper warning to the plaintiff. The question of giving proper warning was further emphasized in the Australian case of Christopher Rogers v Maree Lynette Whitaker [1993] 1 CLJ 449 where its highest court after having reviewed the Bolam test varied the said Bolam‘s principle when it said:
This standard of skill is however not determined solely or primarily by
the practice of the relevant profession or trade. Due consideration
must also be given to the fact that a person is entitled to make his
own decisions about his life. As regards the duty of disclosure of
facts and risks involved, a patient is entitled to know what risks are
involved in undergoing or foregoing the surgery or other treatment.
Whether or not a doctor is in breach of the requisite standard of care
varies according to diagnosis, treatment or the provision of
information or advice. It is the duty of a doctor to warn the patient
of any material risk, particularly if the patient, if warned of the
risk, considers it to be significant. In the present case, the risk is
material. A risk which entails a duty to warn is one which is
foreseeable and real but not one which is ‘far-fetched or fanciful’.
It is clear from the above that the principle underlying medical negligence cases is that the court itself has to decide on the doctor’s negligence after weighing the standard of skills practiced by the relevant profession or trade and also the fact that a person is entitled to make his own decision on his life. What is expected of a doctor is that he has given a fair and reasonable standard of care and skill expected of an ordinary competent medical practitioner as held by the Federal Court in the case of Kow Nan Seng v Nagamah & Ors [1982] 1 MLJ 128 where Salleh Abas, FJ (as he then was), delivering the judgment of the court, at p 130, said:
There may be differences of opinion as to the types of plaster casts to
be applied in the treatment of the type of injuries sustained by the
respondent, but the choice of a treatment which is the standard medical
practice is not by itself a negligence, Bolam v Friern Hospital
Committee and Elizabeth Choo v Government of Malaysia & Anor. Thus,
the application of POP long boot to the respondent’s left leg is not in
itself a negligent act. However, since the application of POP carries
with it an inherent danger of blood circulation, the question is
whether there was fair and reasonable standard of care taken after POP
was applied to see that there would be no problem of poor blood
circulation. If there was such standard of care Dr Susila and the
Government [*766] would not be liable, but if there was not,
they would be liable and the damages awarded should be apportioned.
Further down at p 131 his Lordship said:
Thus, in our view, the evidence in this case clearly shows that the
respondent was not given fair and reasonable standard of care and skill
expected of an ordinarily competent medical practitioner. The breach of
care here consists of lack of proper skill in the application of the
treatment and lack of proper observation in monitoring the patient’s
response to the treatment after it was given so that by the time the
hospital came to realize that something was wrong it was already too
late. Malacca General Hospital tried to repair the damage done, but its
effort was unsuccessful because the damage done was by then already
beyond repair. It was on 25 October that the respondent most needed the
care and attention and yet on that day nothing was done to his leg
apart from a second X-ray. The claim that the two doctors were busy on
that day because it was an operation day is not an excuse.
It is clear from the principle above that the determination of whether a doctor is negligent or not is for the court to determine based entirely on the evidence of each case. It is also clear from the authority that even though the normal or standard practice is followed a doctor may still be liable for negligence if something went wrong with the follow-up treatments such as lack of observations. In the present case the situation where the lack of due care commenced from the very beginning the plaintiff was admitted to the hospital until she was discharged from the hospital including immediate remedial treatments when it was discovered she suffered paralysis after the first operation showed the defendants were negligent.
It was submitted by both defendants that there was contributory liability on the part of the plaintiff. I am not really sure what the defendants meant because no evidence was adduced by the defendants leading to this. In my view the contributory meant by the defendants was the injury suffered by the plaintiff when she was admitted to the hospital. It was common ground that the plaintiff was suffering some pains at the neck when she was admitted. In the present case the claim by the plaintiff against the defendants was for the paralysis she had suffered because of the negligence of the second defendant. Though the second defendant attempted to show that the paralysis was caused by the treatment of the pains at the neck, the pains did not cause the paralysis. The second defendant stated that he found locked facets of C4 and C5 vertebrae which may eventually lead to paralysis. First of all there was no evidence of the locked facets as alleged by the second defendant. It was only his words. The X-rays which may help him were never produced. Secondly, his own expert witness did not positively say that this locked facets would definitely lead to paralysis. Thirdly, Dr Arumugasamy, the expert witness for the plaintiff, was definite when he said the locked facets would not cause paralysis unless she does a headstand. The only thing that she would suffer would be discomfort of pains in the neck. As I have stated earlier, from the evidence adduced, I found that the cause of the paralysis was the wire loop compressing the spinal cord. This wire loop was inserted by the second defendant. It is clear to me that was the sole cause of the paralysis and nobody else contributed to it.
It was also suggested by the second defendant that the plaintiff contributed to the state she is now in when she discharged herself from the hospital. I could not understand how this could contribute to the sufferings she is having now. From the evidence it is clear to me that after the second operation (re-exploration) the plaintiff remained at the hospital for eleven months. There was no evidence to show she had improved from the condition she had suffered after the second operation. The defendants did not adduce any evidence to show her condition had improved or that she was likely to recover from that paralysis. She had no choice but to discharge herself and sought treatment from somewhere else. Even in this the defendants were of no help because when the other hospital requested for her case history especially in respect of the X-rays, this was refused. I do not know what the plaintiff could do anymore.
For the reasons, I have stated above I could not find any contributory blame on the part of the plaintiff and as such I hold both the defendants to be 100 percent liable.
As for damages the parties submitted as follows:
DAMAGES
A General damages
The plaintiff had sustained serious injuries and residuals. She is now a quadriplegic and is unable to do things on her own. Counsel for the plaintiff requested for RM200,000 as general damages. He cited Wong Fook & Anor v Abdul Shukur bin Abdul Halim [1991] 1 MLJ 46 where for a quadriplegic plaintiff confined, like the plaintiff in this case, to a wheelchair, Abdul Malek J awarded RM180,000. Counsel for the second defendant offered RM100,000 as general damages but no authority was cited.
In my view the amount to be awarded for general damages should be RM180,000.
B Special damages
With regard to her travelling expenses after the accident, she uses taxi to go to church, shop and visit friends and for all spends an average sum of RM100 per month and that is the amount she is claiming. I find the claim to be reasonable. She is also claiming for loss of contributions to the Employees Provident Fund (EPF) by her employers because she had to stop work due to her condition. I accept her evidence that she has to use diapers costing an average of RM100 per month as she has no control of her bladder. In addition to her claim for loss of earnings, she is also claiming RM500 as cost of nursing care because she cannot bathe, wash or dress herself. At the time when the case was heard she had Paul, a male friend, to help and assist her in her everyday chores.
(i) Loss of earnings
It is in evidence that the plaintiff passed her MCE in 1976 and that she started work when she was 18. She was working as a clerk-cum-typist before the unfortunate incident and was earning about RM440 a month and also [*768] contributed to the EPF. She was taking an advanced course in typing to advance herself in her career at the time of the incident. To establish her future earrings the plaintiff called the Senior Vice President who was also the principal of RIMA College (PW3) to give evidence on projectory income of a clerk-cum-typist. PW3 gave evidence that the income of a clerk-cum-typist with five years experience would be in the region of RM1,100 to RM1,300 a month whereas a company secretary’s pay today is between RM1,800 to RM2,500 per month. In PW3’s view to become a company secretary, one has to embark upon a three-year special course and the entry requirements were A levels. This evidence of PW3 was not challenged by the defendants.
From the evidence it is clear to me that the plaintiff had not passed her A level examinations and that she had not entered for any secretarial course. For the purpose of this case the loss of earnings should be on the basis of a clerk-cum-typist only.
At the time of the accident the plaintiff was 24 years of age and at the time of the trial she was 37 years of age. The operation that caused the paralysis took place on 19 July 1982. As the incident occurred before the amendment, the pre-amendment provisions of the law applies in her case. Therefore, there is no question of taking 55 years as the cut off point. Anyway, being a lady, in my opinion her working life would be until the age of 50 years.
Taking that her working life span would be until the age of 50 years and at the time she was 24 years of age, she had about 26 years of working life left. I would, following the decision in Yeap Cheng Hock v Kajima-Taisei Joint Venture [1973] 1 MLJ 230 and as followed by Abdul Malek Ahmad J in Wong Fook‘s case take off one third for contingencies. This leaves 20 years’ purchase. Since this is a pre-amendment case, I have to assess the claim on pre and post-trial basis.
(a) Pre-trial loss
From 1982 to date of judgment the period is 15 years. This was the pre-trial loss.
It is normal for any employee in his expectations of salary increment, but I have to be realistic in the whole situation. There is no dispute that at the time of the incident the plaintiff was working in the private sector where the increment was based on work performances, profit and other factors. In my opinion the average income of the plaintiff should be in the region of RM650 per month. Using the direct multiplier method the pre-trial loss is RM650 x 15 x 12 = RM117,000.
This will bear interest at 4% per annum from 19 July 1982 to the date of full payment.
(b) Post-trial period
The post-trial years of purchase will be 20 minus 15 which is five years.
For this post-trial period, though PW3 gave evidence that a clerk-cum-typist is to be paid the sum of RM1,100 to RM1,300 a month, I am of the opinion that the realistic figure here is in the region of RM800 a month. On actuarial basis the total post-trial loss is RM41,562.97. This of course will bear no interest.
(c) EPF contributions
The employer’s letter (P6) and EPF contributions (P7A-P7F) were agreed documents and tendered by consent. I have determined the remaining working life of the plaintiff is 20 years and determined that the pre-trial loss for 15 years at RM650 and the post-trial loss for five years at RM800 a month, the loss in EPF contributions by the employer are as follows:
(a) For the pre-trial at RM650 the employer’s contribution should be RM73
per month. Therefore, for 15 years the contribution would be RM73 x 15 x 12 =
RM13,140. The plaintiff is entitled to 4% interest from 19 July 1982 to date
of judgment.
(b) For the post-trial period at RM800 per month the employer’s
contribution is RM96 per month. Therefore, for five years the employer’s
contribution would be RM96 x 5 x 12 = RM5,760. No interest is allowed on this
amount.
When I delivered my decision on 8 April 1999, I had given different figures for the EPF contributions. After delivering the decision I discovered that the calculations were based on working life until 55 years of age and on the EPF tables supplied by the plaintiff’s counsel. It appears to me that the employer’s contributions have changed from time to time. Based on the changes during the material times the correct calculations are as above.
(ii) Transport charges
I accept as reasonable the plaintiff’s claim of RM100 as transport charges per month. I will award for the pre-trial period for 13 years only. For the first two years, it is reasonable to assume that she would not be travelling.
For 13 years, this amounts to RM100 x 13 x 12 = RM15,600. This will fetch interest at 4% per annum from 19 July 1982 to date of judgment.
For the post-trial period of five years, the transport charges at RM100 x 5 x 12 amounts to RM6,000. There will be no interest on this.
(iii) Cost of diapers
For the pre-trial period of 15 years, I will award the sum of RM60 per month which works out to RM60 x 15 x 12 = RM10,800. This will fetch interest at 4% per annum from 19 July 1982 to date of judgment.
For the five years post-trial period, the cost of diapers amounts to RM60 x 5 x 12 = RM3,600. This of course will not attract interest.
(iv) Nursing care
The plaintiff claimed the sum of RM500 per month for nursing care and she was not cross-examined on this. Notwithstanding that there was no cross- [*770] examination, I am of the view that the claim was on the high side taking into consideration she had been awarded loss of earnings and taking into consideration the cost of employing maids. For this purpose I made the award based on three different periods:
(a) For the first ten years of the pre-trial, I am of the view that the
sum of RM350 is reasonable. As such for ten years she is entitled to RM350 x
10 x 12 = RM42,000.
(b) For the next five years of the pre-trial, I am of the view that the
sum of RM500 is reasonable. As such she is entitled to RM500 x 5 x 12 = RM30,
000.
(c) For the post-trial period of five years, I am of the opinion that the
sum of RM500 is reasonable. As such she is entitled to RM500 x 5 x 12 = RM30,
000.
Interest at 4% per annum will be awarded on (a) and (b) from 19 July 1982 to date of judgment. No interest is to be given on (c).
The total award is as follows:
| GENERAL DAMAGES | RM 180,000.00 |
| SPECIAL DAMAGES: | |
| (i) Loss of earnings: | |
| (a) Pre-trial loss (b) Post-trial loss | RM 117,000.00RM |
| 41,562.97 | |
| (ii) EPF Contributions by Employer: | |
| (a) Pre-trial loss (b) Post-trial loss | RM 13,140.00 RM |
| 5,760.00 | |
| (iii) Transport Charges: | |
| (a) Pre-trial loss (b) Post-trial loss | RM 15,600.00 RM |
| 6,000.00 | |
| (iv) Cost of Diapers: | |
| (a) Pre-trial loss (b) Post-trial loss | RM 10,800.00RM |
| 3,600.00 | |
| (v) Cost of Nursing Care: | |
| (a) Pre-trial loss (b) Post-trial loss | RM 72,000.00RM |
| 30,000.00 |
The interest on those special damages as I have stated earlier. As to general damages the interest shall be at 8% per annum from the date of service of the writ to date of judgment.
COSTS
Following the decision in Kamalan‘s case and as I myself have seen the amount of work put into this case, I am of the view that it is reasonable that [*771] pursuant to O 59 r 19(2) of the Rules of the High Court 1980, to certify that the costs to be awarded are fees for two counsel in favour of the plaintiff, such costs to be taxed and to be paid by the defendants.
Claim allowed.
LOAD-DATE: September 22, 2003
Conflict of Interest Expert Witness: RE CHAN YU NAM & ANOR (HONG KONG)
11 HKPLR 399, *
Hong Kong Public Law Reports
RE CHAN YU NAM & ANOR
2005-06 11 hkplr 399
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 77 OF 2005
COURT OF FIRST INSTANCE
DECIDED-DATE-1: 24 AUGUST 2005
REYES J
CATCHWORDS:
Administrative Law – Judicial review – Application for leave to review arbitral award permitting an increase in taxi tolls – Applicants not parties to arbitration – Jurisdiction of court to review award on application of non-parties – Interest or standing of applicants – Types of statutory arbitration tribunal that are susceptible to administrative law remedies – Merits of the application – Whether arguable or hopeless – Delay in making application – Rules of the High Court O 53 r 3
Arbitration – Statutory arbitration – Arbitral award permitting an increase in taxi tolls – Arbitral tribunal appointed and acted under Arbitration Ordinance – Whether award susceptible to administrative law remedy of judicial review – Arbitration Ordinance (Cap 341) s 2AB
Civil Procedure – Leave for judicial review – Duties relating to ex parte applications – Duty of applicant – Full and frank disclosure of all material circumstances – Duty of expert – Fair and balanced presentation of evidence
Evidence – Expert evidence – Ikarian Reefer guidelines – Breach of experts’ duties to the court – Lack of independence and impartiality
Words and Phrases – ‘Statutory arbitration’ – Arbitration Ordinance (Cap 341) s 2AB
HEADNOTES:
On 20 January 2005 an arbitral tribunal made an award under the Eastern Harbour Crossing Ordinance (Cap 215) (EHCO) s 55(3)(b) authorising an increase in tolls levied on motor vehicles using the Eastern Harbour Crossing. The parties to the arbitration were the Eastern Harbour Crossing operator, New Hong Kong Tunnel Co Ltd (NHKTC) (as claimant) and the Government of the Hong Kong Special Administrative Region (as respondent). Section 55(3)(b) of the EHCO provided for the submission to arbitration of questions as to the variation of tolls under the tunnel franchise. Such questions were to be determined under the Arbitration Ordinance (Cap 341) (AO) in default of agreement between the parties. The appointment of the tribunal and the procedure of the arbitration were governed by the AO. By virtue of s 2AB(1) of the AO, arbitrations under any other Ordinance were statutory arbitrations, submissions to arbitration required under any such statutes were treated as if made pursuant to a domestic agreement to arbitrate and the governing procedural law was therefore Part II of the AO.
EHCO s 55(4) stipulated that the arbitral tribunal ‘shall be guided by the need to ensure that the carrying out by … [NHKTC] of its obligations, or the exercise of its rights, under this Ordinance is reasonably but not excessively remunerative to [NHKTC] ….’ This provision required the tribunal, in being so guided and in reaching its decision, to take into account the following matters: (i) ‘any material change in the economic conditions of Hong Kong … since tolls were last determined under this section’ (s 55(4)(a)); (ii) ‘any material change in any other circumstances affecting the exercise by … [NHKTC] of its rights under the franchise …’ (s 55(4)(c)); and (iii) ‘any other relevant matter’ (s 55(4)(f)).
Under the award, the toll for private cars and taxis was raised from HK$ 15 to HK$ 25. The two applicants in the present case were not parties to the arbitration but taxi drivers who were aggrieved with the decision. They believed that the HK$ 10 increase in toll had influenced many potential passengers to cross the harbour by the Mass Transit Railway or to make road crossings by the Cross Harbour Tunnel and that this had led to a material fall (15-20%) in the applicants’ income. The applicants applied ex parte for leave to seek judicial review to set aside the award under the Rules of the High Court (Cap 4A) O 53 r 3 n1 .
n1 Editorial note: This provision was not mentioned in the main body of the judgment but appears as a heading to the transcript. Judicial review under RHC O 53 is an administrative law remedy. In the present case the ultimate aim of the application was a prerogative order of certiorari to set aside the award. Judicial review under RHC O 53 is not to be confused with recourse against arbitral awards under the AO, in particular appeals against awards on a point of law under s 23, the section heading and marginal note to which refer to ‘judicial review’. An appeal against the award under AO s 23 did not in any event avail the present applicants as they were not parties to the arbitration.
The application raised the following questions —
1. The jurisdiction of the court to grant leave to seek judicial review of
the award on the application of non-parties.
2. If the court had jurisdiction, whether the applicants had sufficient
interest or standing to bring judicial review proceedings n2 .
n2 Editorial note: This is a requirement of O 53 r 3(7).
[*400]
3. If the applicants had a sufficient interest, whether on the merits the
application was arguable or so clearly hopeless that leave should be
refused.
4. If the applicants’ case was arguable, whether leave should be refused
in the light of their delay in bringing the application n3 .
n3 Editorial note: RHC O 53 r 4(1) requires an application for judicial review to be made promptly and in any event no later than three months from the date of the decision complained of, unless the court considers that there are good grounds for extending this period.
The hearing of the application also raised the question whether the expert witnesses retained by the applicants had fulfilled their duty to the court in giving expert evidence in support of the application.
Held, refusing the application:
Jurisdiction
(1) The court did not have jurisdiction to entertain the application for
the following reasons.
(i) Judicial review lay only against permanent or standing arbitral
and other judicial bodies established by statute and having
compulsory and possibly exclusive jurisdiction to determine
disputes (at para 13).
(ii) This was not the situation in the present case, because (a) EHCO s
55(3) provided simply that toll disputes between Hong Kong
Government and NHKTC should be arbitrated in accordance with the
AO; (b) AO s 2AB(1) stipulated that arbitrations provided for
under any Ordinance were to be treated as domestic arbitration
agreements and that the relevant enactment (in this case the
EHCO) was to be treated as an agreement to arbitrate; and (c)
arbitrators were appointed privately on an ad hoc basis at the
instance of the parties. Arbitral tribunals so appointed were not
permanent and the statutory arbitration process was entirely
consensual (at paras 11, 12, 14).
(iii) In any event, (a) jurisdiction to order judicial review did not
arise merely because statute provided for the arbitration of
differences, and (b) nothing in case law suggested that an
arbitral award (whether made by a standing tribunal or by an ad
hoc tribunal in a statutory arbitration under the AO) could be
reviewed at the instance of a non-party (at paras 10, 14).
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd, The Bremer Vulkan [1981] AC 909 and R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p Neate [1953] 1 QB 704 considered.
Obiter
Interest of the applicants
(2) The applicants did not have a sufficient interest to bring the
application for the following reasons.
[*401]
(i) The grounds on which they claimed to have been adversely affected
by the award were tenuous, the quality of the factual evidence
was poor and it was unclear precisely how and on what basis the
figures given as to an alleged 15-20% decrease in income had been
calculated (at paras 19-24).
(ii) As the evidence was so cursory, the applicants were in breach of
their duty to make full and frank disclosure of all material
circumstances in support of an ex parte application (at para 25).
The merits
(3) The applicants’ case was not arguable and was bound to fail. In
addition to considering economic data, the tribunal, in having regard
to the matters stipulated by EHCO s 55(4)(a), (c) and (f), were
required to investigate relevant facts (including NHKTC’s cashflow and
profit information) and consider relevant law (including the
contemplation of the parties at the time of the franchise as to what a
reasonable but not excessive internal rate of return (IRR) should be).
There was no evidence that the tribunal had failed to do so. In
particular, they had not erred in their reasoning about changes in the
economic conditions of Hong Kong since the previous toll increase in
1997 (EHCO s 55(4)(a)). They were entitled to adopt as their starting
point an IRR of 15-17% reached at that time by the previous arbitral
tribunal (a sole arbitrator who was also a member of the 2005 tribunal)
(at paras 26, 41-46).
Delay
(4) There had been undue delay in making the application. The award was
published on 11 March 2005 and the application was made one month after
the 3-month time limit for applying for leave to seek judicial review.
It was not an excuse to say that substantial time had been spent
seeking legal advice, finding experts and securing the services of
Counsel. These were ordinary incidents of litigation that could not by
themselves excuse delay (at paras 60, 61 and 65).
Expert evidence
(5) The manner in which evidence was submitted to the court by the
applicants’ experts was in breach of the Ikarian Reefer guidelines on
expert evidence and so undermined the reliance to be placed on it. In
particular, (i) evidence was given in a partisan manner, as an advocate
and not as an independent expert; (ii) assertions were made with little
or no supporting material; (iii) the experts strayed outside their area
of economic expertise, expressing unqualified views on matters of law,
including the interpretation of terms used in EHCO s 55(4); (iv)
economic models and the assumptions relating thereto were not
explained; and (v) as one expert had adopted the other expert’s
evidence, his own evidence was subject to similar criticism. The fact
that the experts had acted as advocates and could not be regarded as
independent or impartial was potentially fatal in an ex parte
application, which required both full and frank disclosure and the fair
and balanced presentation of a case. National Justice Compania
Naviera v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2
Lloyd’s Rep 68 applied (at paras 47-59). [*402]
Cases referred to
Bremer Vulkan Schiffbau and Maschinenfabrik v South India Shipping Corp Ltd, The Bremer Vulkan [1981] AC 909; [1980] 1 All ER 420; [1980] 2 WLR 905; [1980] 1 Lloyd’s Rep 255 (HL)
National Justice Compania Naviera v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 (HC)
R v Electricity Commissioners, ex p London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171; (1924) 39 TLR 715; [1923] All ER Rep 150 (CA)
R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p Neate [1953] 1 QB 704; [1953] 1 All ER 327; [1953] 2 WLR 342 (HC)
Legislation referred to
Arbitration Ordinance (Cap 341)s 2AB(1)
Arbitration Act 1950 [UK]
Arbitration Act 1975 [UK]
Eastern Harbour Crossing Ordinance (Cap 215) ss 55(3), (4)
Rules of the High Court (Cap 4A) O 53 r 3
[Editorial note: As to judicial review in administrative law, see Halsbury’s Laws of Hong Kong Vol 1 Administrative Law [10.056]-[10.060]. As to statutory arbitration, see Robert Morgan The Arbitration Ordinance of Hong Kong: A Commentary (1997, Butterworths Asia) pp 65-67 and 1997 Supplement at pp 26-27. As to appeals and other judicial recourse against domestic arbitral awards generally, see Halsbury’s Laws of Hong Kong Vol 1(2) Arbitration (2003 Reissue) [25.156]-[25.176]; Morgan op cit pp 206-282, 306-312. As to expert evidence, see Halsbury’s Laws of Hong Kong Vol 12 Evidence [175.083]-[175.084]. As to road and tunnel tolls, see Halsbury’s Laws of Hong Kong Vol 23 Roads and Tunnels [350.021]-[350.030].]
Application
This was an application for leave to apply for judicial review, pursuant to the Rules of the High Court (Cap 4A) O 53, of an arbitral award made under the Eastern Harbour Crossing Ordinance (Cap 215) s 55(3) and pursuant to proceedings conducted under the Arbitration Ordinance (Cap 341). The facts appear sufficiently in the following judgment.
Philip Dykes SC, Hectar Pun and Newman Lam (KM Cheung & Co) for the applicants.
The parties to the arbitration did not appear and were not represented
Reyes J:
I. Introduction
[1] Mr Chan and Mr Poon are taxi drivers. They seek leave for judicial review to set aside a Final Interim Award dated 20 January 2005 by Mr Kenneth Rokison QC and Mr Barry Mortimer QC as arbitrators. The Award was made pursuant to Eastern Harbour Crossing Ordinance (Cap 215) (EHCO) s 55(3). It held (among other things) that New Hong [*403] Kong Tunnel Co Ltd (NHKTC) could raise the toll for private cars and taxis using the Eastern Harbour Tunnel (EHT) from $ 15 to $ 25.
[2] The question is whether I should grant leave to apply for judicial review. The following issues arise:
(1) Does the court have jurisdiction to review the Award on the application
of persons not parties to it?
(2) If the court has jurisdiction, do the parties have sufficient interest
or standing to bring judicial review proceedings.
(3) If the applicants have standing, is their application arguable or is it
so clearly hopeless that leave should be refused at this liminal stage.
[3] If I believe the applicants’ case to be arguable, there is a subsidiary issue whether, in light of delay in bringing this application, leave should still be refused.
II. Discussion
A. Jurisdiction
[4] EHCO s 55(3) provides that the tolls levied by the NHKTC on vehicles using the EHT may be varied:
(a) by agreement between the Governor in Council and the Road Company
[NHKTC]; or
(b) in default of agreement by submission of the question of the
variation of tolls to arbitration under the Arbitration Ordinance (Cap.
341) by either the Governor in Council or the Road Company.
[5] EHCO s 55(4) provides:
On submission to arbitration under subsection (3), the arbitrators
shall be guided by the need to ensure that the carrying out by the Road
Company of its obligations, or the exercise of its rights, under this
Ordinance is reasonably but not excessively remunerative to the Road
Company, having regard to:
(a) any material change in the economic conditions of Hong Kong since
the enactment of this Ordinance or, as the case may be, since tolls
were last determined under this section;
(b) …
(c) any material change in any other circumstances affecting the
exercise by the Road Company of its rights under the franchise granted
by section 4(1);
(e) …
(d) …
(f) any other relevant matter.
[*404]
[6] The applicants were not parties to the arbitration which resulted in the award. The arbitration was conducted in private between NHKTC as claimant and Government as respondent. NHKTC sought a toll increase. Government thought that an increase was not justified since NHKTC was in relatively good financial position and Hong Kong had experienced deflation (4% in 1999).
[7] The applicants say that this case involves a ‘statutory arbitration’ which ‘affects the general public … with a drastic impact on their living’. The applicants submit that the court can intervene by judicial review to ensure that the arbitrators carry out their duties properly within the terms of the EHCO.
[8] In support, the applicants rely on a dictum of Lord Goddard CJ in R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p Neate [1953] 1 QB 704 (at 707-8):
[T]he bodies to which in modern times the remedies of these
prerogative writs have been applied have all been statutory bodies on
whom Parliament has conferred statutory powers and duties which, when
exercised, may lead to the detriment of subjects who have to submit to
their jurisdiction. Where a statute, for instance, gives power for the
compulsory acquisition of land and an arbitrator is set up by
Parliament to assess the compensation, or where, as in Rex v.
Electricity Commissioners; Ex parte London Electricity Joint Committee
Co. (1920) Ld. [[1924] 1 KB 171] , the tribunal were a body on
whom a great many powers had been conferred by Parliament, it is
essential that the courts should be able to control the exercise of
their jurisdiction strictly within the limits which Parliament has
conferred upon them.
[9] The applicants also cite Lord Diplock’s approval of the dictum in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 (at 978F-H):
In that case [Neate] it was held by the Divisional Court that the
general supervisory jurisdiction of the High Court over the proceedings
of inferior courts and tribunals extended only to ‘bodies on whom
Parliament has conferred statutory powers and duties which, when
exercised, may lead to the detriment of subjects who may have to submit
to their jurisdiction.’ (p.708). These bodies would include arbitrators
appointed to conduct a statutory arbitration to whose jurisdiction
parties to a particular kind of dispute are compelled to refer it for
determination, but they do not include arbitrators appointed pursuant
to private arbitration agreement. In relation to private arbitrations
the jurisdiction of the High Court to supervise the conduct of the
arbitration is confined to exercising the powers conferred upon it by
the Arbitration Acts 1950 and 1979 (though the latter Act does not
apply to the arbitration in the instant case). The reason for this
distinction is that the jurisdiction of an inferior court or statutory
tribunal or arbitrator over the person who wishes to resist the claim
is compulsory whereas the jurisdiction of an arbitrator over both
parties to a private arbitration agreement is consensual only.
[*405]
[10] I think that neither Neate nor Bremer Vulkan assist the applicants. Read in context, the dicta just quoted concern the situation where a party to an arbitration by a body set up by statute applies to the court to review the decision of the body. The cases say nothing about an outsider being able to review an arbitration (statutory or otherwise) to which he is not a party.
[11] The Government can (and routinely does) enter into commercial contracts with private corporations. By the EHCO the Government granted the franchise for the EHT to NHKTC. EHCO s 55(3) simply provides that disputes between the Government and NHKTC in relation to the tolls charged under the franchise are to be arbitrated in accordance with the Arbitration Ordinance (Cap 341) (AO).
[12] AO s 2AB(1) stipulates that arbitrations under any ordinance are to be treated as domestic arbitration agreements and the relevant enactment (here the EHCO) is to be treated as if it were an agreement to arbitrate. Arbitrators are then privately appointed ad hoc at the instigation and choice of the parties (here the Government and NHKTC) as and when circumstances require.
[13] This arrangement is in distinction to that which Lord Goddard and Lord Diplock appear to have in mind of a particular body endowed by statute with jurisdiction (possibly exclusive) to arbitrate certain types of dispute (for example, wage disputes) between particular parties.
[14] The applicants suggest that the foregoing analysis is inconsistent with EHCO s 55(3)(b). But I am unable to see why. The situation here is little different from that where the Government contracts with a private body and the contract requires particular disputes between the parties to go to arbitration. Arbitrations under such contracts are not susceptible to judicial review. By similar token, I do not believe that I have jurisdiction to entertain the proposed judicial review, merely because arbitration of differences arising under the franchise is provided for by statute.
[15] I note in passing that Mr Dykes SC (appearing for the applicants) said in submission that, with the exception of a right to seek judicial review, it was not his case that EHCO s 55 conferred substantive rights on the applicants. More specifically, Mr Dykes stated that it was not his case that the applicants had a right to have material changes to Hong Kong’s economic conditions considered in any arbitration under EHCO s 55.
B. Interest
[16] But assume that I am wrong on the question of jurisdiction. I think that the applicants would still be in difficulty, as I do not believe that they have a sufficient interest to bring this application.
[17] The applicants say that they have standing because as taxi drivers they have been materially affected by the $ 10 rise in EHT toll.
[*406]
[18] The applicants say that they have been affected because potential passengers now choose to take the MTR rather than taxis. Further, their customers now opt to travel between Hong Kong Island and Kowloon by the Cross Harbour Tunnel (CHT), rather than by the EHT. There is greater congestion on the CHT and thus longer queuing time. It is asserted that the longer a taxi has to wait to cross the CHT the fewer hires overall it can take. As a result, Mr Chan says that his income has dropped by 20%, while Mr Poon says that he has lost 15%.
[19] The grounds on which the applicants claim to be affected strike me as tenuous. The quality of the evidence on the matter is poor. Let me give examples of the doubts which I have on the evidence.
[20] First, I do not see how the applicants can complain, if more people take the MTR. The latter mode of transport is likely to be more fuel efficient and environmentally friendly than private cars. I do not think that the applicants can insist that commuters travel by taxi instead of MTR.
[21] Second, I do not understand the complaint about queuing time at the CHT. The proposition assumes that the taxis are in fact being hired by passengers to cross the harbour. It is unclear from the applicants’ evidence whether such passengers would have used the EHT instead of the CHT, but for the fare increase.
[22] Third, the queuing time at the CHT may or may not mean fewer hires. No numbers are given in the evidence of the extent to which waiting time at the CHT has increased since higher fares were introduced in May 2005 at the EHT. No numbers are given of how many fewer passengers the applicants have been able to pick up as a result of the EHT toll rise and waiting at the CHT.
[23] Fourth, taxis earn not just from mileage covered, but for time spent idling in traffic. It is not apparent from the evidence by how much (if at all) the applicants are compensated by the extra fare accruing as a result of the longer time (including waiting) which it takes to carry a passenger across the harbour via the CHT.
[24] Fifth, the affidavit evidence asserts that ‘as a consequence’ the applicants have sustained 15%-20% drops in income. It is unclear how precisely these figures have been calculated. How do the applicants know, for instance, that the decline in income is not due to the drastic deterioration of the Hong Kong economy since 1997?
[25] Leave for judicial review is an ex parte application. There is a duty on an applicant to make full and frank disclosure of all material circumstances. I would accordingly have expected much fuller explanation of the extent to which the applicants’ business was specifically affected by the EHT fare increase. On the cursory evidence provided, I do [*407] not think that a sufficient case on standing has been made out.
C. Merits
[26] Let me now assume that I am wrong on both the questions of jurisdiction and standing. The applicants’ case is still fraught with difficulty. On the merits, I do not believe that the applicants’ case is arguable. In my opinion, any judicial review would be bound to fail.
[27] The applicants say that the arbitrators erred because they failed to appreciate that, since the last EHT toll review in March 1997, there has been a ‘material change’ in the economic conditions of Hong Kong. In discounting such a change, the arbitrators (the applicants contend) failed to take a relevant factor into account contrary to EHCO ss 55(4)(a) and (f). The arbitrators (the applicants submit) therefore acted ultra vires.
[28] In the Reasons for their Award, the arbitrators certainly appreciated that since March 1997 economic conditions in Hong Kong had ‘drastically deteriorated, due largely to the Asian financial crises starting in the second half of 1997 and the SARS outbreak in Hong Kong in 2003’. The arbitrators also refer to two stock market crashes since 1998.
[29] But the arbitrators conclude (at Reasons ss 14.7 and 14.8):
In considering whether the economic downturn or changes since 1997 are ‘
material’ within the meaning of section 55(4)(a) of the Ordinance it is
relevant to put these changes into the context of the life of the
project. First, that there is a possibility (no more) that based on the
Government’s forecast the GDP for 2004 will be positive. Further, that
in spite of the unprecedented downturn, the CPI for 2003 was still 28%
higher when compared to that in 1992 and that the CPI for 2003 was
almost exactly the same as that for 1995. Similarly, reference is made
to the increase in the Hang Seng Index since the beginning of the
project. In spite of crashes in August 1998 when it was 6,545 and in
September 2001 when it was 8,894 in December 2003 the level had risen
to 12,576. Further, at the end of 2003 the index stood at 12,240
whereas at the end of 1995 it was 10,073.
Even the GDP for 2003 was slightly higher than in 1996 and
substantially higher than in 1995.
[30] Professor Francis Lui, an economist giving evidence on behalf of the applicants, criticises the arbitrators’ reasoning in two respects.
[31] First, he believes that the arbitrators were wrong to take an internal rate of return (IRR) of between 15% to 17% as the reasonable band of remuneration for NHKTC over the life of the EHT franchise. Based on his analysis of the average rates of return for capital investment in Hong Kong between 1986 and 2004, Professor Lui suggests that something like 12.9% or 13% would be reasonable and anything higher excessive.
[32] Second, he believes that Reasons ss 14.7 and 14.8 are wholly illogical. He states (at ss 14-16):
[*408]
Now I proceed to show that the criteria used by the Arbitrators to
evaluate the significance of the economic change between 1997 and 2004
are totally misguided. Paragraphs 14.7 and 14.8 of the Arbitrators’ ‘
Reasons for Award’ reveal the criteria they have used. Essentially,
they say that the Consumer Price Index (CPI) for 2003 was almost the
same as that for 1995, and GDP for 2003 was slightly higher than in
1996. Even though the Arbitrators have failed to mention that both the
Hang Seng Index and the CPI in 2003 were actually LOWER than those in
1997, when the previous arbitration took place, I do not want to be
harsh on the details they provide. The implicit logic behind their
conclusion is very clear. Since today’s GDP, CPI and Hang Seng Index
are not too much different from those in 1997, the changes in economic
conditions should be regarded as immaterial. The previous arbitration
in that year concluded that the reasonable rate of return was 15% to
17% for the Company. Therefore, the same rate of return should apply
today.
This logic is totally incorrect. The rate of return of an investment
does NOT depend on the LEVELS of GDP, CPI or Hang Seng index. Rather,
it depends on the RATES of CHANGE in these variables. If today’s GDP
were the same as before, then economic growth would be zero. The rate
of return of an investment would also be very low, or even negative. In
this regard, I refer to paragraph 21 of the Form 86A and confirm that
the statement about the GDP growth rate and the inflation rate are
correct according to my expertise and calculations.
If today’s Hang Seng Index were the same as before, it would mean that
very little had been made from investing in the stock market. If the
CPI of today were equal to or lower than before, then there would have
been zero inflation or even deflation, and the nominal rate of return
would have to be reduced. From 1986 to 1997, average annual real GDP
growth rate was 5.9%, average inflation rate was 8.5% per year, and the
rate of increase of the Hang Seng Index was around 18% per year. The
corresponding figures for the period 1997 to now are 3%, -1.9% and -1%,
respectively. If drastic changes of this order of magnitude were
regarded as immaterial, it would be a mockery of section 55(4)(a) of
the Ordinance. Had the Arbitrators been able to use the appropriate
criteria for evaluating the significance of the changes in economic
conditions, they would have come up with just the opposite conclusion
with the evidence they cited.
[33] The applicants have recently filed a supporting Affirmation by Dr Law Cheung Kwok. In addition to agreeing with Professor Lui, Dr Law states (at s 8):
[T]he Hong Kong economy indeed changed or deteriorated very
significantly during the 1997 to 2004 period as compared with 1986 to
1997. In terms of employment, the unemployment rate increased very
sharply from an average of 2.0% during 1986 to 1997 to 5.6% during 1997
to 2004. In terms of the financial position of the Hong Kong
Government, a surplus fiscal position (annual average) was equivalent
to 2.6% of GDP during the 1986-1997 period, and it turned into a
deficit fiscal position (annual average) of -0.9% during the 1997-2004
period.
[*409]
[34] I have not found the evidence from either Professor Lui or Dr Kwok helpful. It seems to me that they misunderstand the thrust of the arbitrators’ reasoning.
[35] In the March 1997 toll review, Mr Rokison QC (then sitting as sole arbitrator) determined that an IRR of 15% to 17% was the reasonable band of remuneration for NHKTC over the life of the franchise.
[36] In determining this, he took into account as a starting point the parties’ contemplation in or around the time when the franchise was granted, of what a reasonable (but not excessive) IRR ought to be. Although he took such factor into account by the agreement of the parties in the arbitration, that method of proceeding was entirely consonant with general contract law principle.
[37] The EHT franchise was a commercial contract between NHKTC and Government. To arrive at the IRR which the parties would have deemed to be ‘reasonable but not excessive’, contract law first requires that one objectively assess the parties’ intentions at the time when the franchise was granted.
[38] Obviously, the assessment exercise just described is only a starting point. On a submission to vary tolls, the arbitrators must further consider whether any of the factors in EHCO s 55(4) affect the IRR originally contemplated.
[39] The simple point, however, is that determination of a reasonable IRR is not purely an economic exercise. It also requires an investigation of fact, including the contemplation of the parties at the time of contracting.
[40] Neither Professor Lui nor Dr Law are qualified to say what as a matter of fact the parties contemplated at the time of entering into the franchise. This is because neither Professor Lui nor Dr Law were involved in the franchise negotiations at the time. Indeed, strictly (in contrast to the arbitrators) neither are even in a position to compare NHKTC’s cash flows at the time of a specific toll review and the time when the franchise was granted. All that Professor Lui and Dr Law can speak to is what historically the average IRR on capital has been in Hong Kong over any given period.
[41] I do not see how Professor Lui or Dr Law can pronounce on the reasonableness or unreasonableness of the arbitrators’ conclusion on the basis of their economic expertise alone. The arbitrators’ exercise was one that involved, not just the consideration of economic data, but also the evaluation of law and fact (for instance, the parties’ contemplations on the one hand and NHKTC’s cashflow and cumulative profit information on the other).
[42] All the arbitrators were saying in Reasons ss 14.7 and 14.8 is that despite pronounced ‘deterioration’ in Hong Kong’s economic conditions between 1997 and 2003, leading indices suggest that Hong Kong was no [*410] worse off in 2003 (perhaps it was even marginally better), than it was in 1995. Note that May 1995 was the time when NHKTC previously applied for an increase.
[43] Since in 1995 an IRR of 15% to 17% was reasonable in all the circumstances then prevailing, it follows that the same IRR should hold good in 2003. The changes to the Hong Kong economy between 1997 and 2003, although serious and significant, were not ‘material’ within the terms of EHCO s 55(4)(a).
[44] The arbitrators were not (as Professor Lui asserts) saying that IRR depends on the levels of GDP, CPI or the Hang Seng Index. The arbitrators were merely comparing and contrasting Hong Kong’s overall economic position in 1995 with that in 2003.
[45] I cannot see how it can be argued that the arbitrators conducted themselves wrongly or unreasonably in what they did. On the contrary, their reasoning is impeccable and wholly within the terms of their mandate under EHCO s 55(4).
[46] I therefore am not persuaded that the applicants’ position is arguable.
[47] I would make a further observation on the expert evidence from Professor Lui and Dr Law.
[48] The ‘Ikarian Reefer’ [1993] 2 Lloyd’s Rep 68 (at 81) gives useful and well-known guidance on expert evidence in civil cases. Cresswell J’s guidelines in that case include the following:
1. Expert evidence presented to the Court should be, and should be seen
to be, the independent product of the expert uninfluenced as to form or
content by the exigencies of the litigation.
2. An expert witness should provide independent assistance to the Court
by way of objective unbiased opinion in relation to matters within his
expertise … An expert witness in the High Court should never assume the
role of an advocate.
3. An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material facts
which could detract from his concluded opinion …
4. An expert witness should make it clear when a particular question or
issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he
considers that insufficient data is available, then this must be stated
with an indication that the opinion is no more than a provisional one …
In cases where an expert witness who has prepared a report could not
assert that the report contained the truth, the whole truth and nothing
but the truth without some qualification, that qualification should be
stated in the report …
[49] Although Cresswell J was specifically dealing with expert evidence at trial, similar principles should apply to expert evidence in civil cases [*411] generally. This must especially be the case in ex parte applications, where there is a duty of full and frank disclosure on an applicant.
[50] From the passages from Professor Lui’s affirmation already quoted, it will be seen (and Mr Dykes accepted in submission) that Professor Lui was not giving evidence as an independent expert, but as an advocate. His evidence and that of Dr Law do not comply with the requirements of ‘IKARIAN REEFER’.
[51] Assertions were made in the course of Professor Lui’s affirmation with little or any supporting material. The court was therefore in some difficulty in evaluating his evidence, even if only in a preliminary way.
[52] Further, Professor Lui freely ventured into matters outside his economic expertise, expressing unqualified personal views (for example) on matters of law.
[53] Let me give examples.
[54] At Affirmation s 7, Professor Lui says:
However, for all practical purposes, [NHKTC] has only to face
lower-than-average risks. Thus, a ‘reasonable’ expected rate of return
for the Company should be one that is LOWER than the average rate of
return in the economy.
It is not apparent on what facts and matters Professor Lui is relying when he asserts that NHKTC only faces ‘lower-than-average risks’. Nor is it clear to me how Professor Lui can state any useful opinion on what is or is not ‘reasonably but not excessively remunerative’ within the terms of EHCO s 55(4). That would be a matter of law.
[55] At Affirmation s 10, Professor Lui refers to his calculations of IRR based on the ‘celebrated Solow Growth Model’. But he does not condescend to details about the model and its assumptions. There is little material for the court to evaluate, even in a preliminary way, whether the Solow model is or is not relevant.
[56] At Affirmation s 11, Professor Lui states: ‘In other words, given the average performance of the Hong Kong company from 1986 to now, the Company has already been enjoying an expected rate of return that should be regarded as excessively high’. One asks: ‘Regarded by whom?’ Not only is the statement partisan, but it also constitutes an opinion (which Professor Lui is not qualified to give) on the legal interpretation of ‘excessive’ in EHCO s 55(4).
[57] In Affirmation s 16, Professor Lui makes the statement already quoted that ‘[i]f drastic changes of this order of magnitude were regarded as immaterial, it would be a mockery of section 55(4)(a) of the Ordinance.’ Again the statement is partisan. Once more it imports a legal interpretation, this time through the word ‘material’ in EHCO s 55(4)(a).
[58] Dr Law adopted Professor Lui’s evidence, thereby subjecting his own affirmation to similar criticism.
[*412]
[59] These derogations from the standards summarised by Cresswell J, undermine the reliance which a judge can place on the evidence. The experts are advocates and cannot be regarded as independent or impartial. This is potentially fatal in an ex parte application which calls for a fair and balanced presentation of a case.
D. Delay
[60] In light of my conclusions, the issue of delay does not arise. I merely note that, even if I had found that the applicants’ case was arguable, I would have held that there had been undue delay.
[61] The Award was made on 20 January 2005. It was amended on 28 February 2005. On 11 March 2005 the Award was made public and Government announced that it would not appeal against it. The judicial review was not brought until 21 July 2005, more than four months after the Government’s announcement. This is more than one month outside the three month limit for bringing judicial review.
[62] The applicants say that they only learned of the award in late March 2005, when they became aware that the EHT toll was likely to come into effect on 1 May 2005.
[63] The applicants say that it took them ‘a substantial amount of time to consult lawyers and find the necessary finance for instituting these proceedings’. They say that they received contradictory legal advice. They only obtained ‘secure formal legal representation’ in mid-June 2005 and have been represented by leading counsel since mid-July 2005.
[64] Time was also spent looking for an expert. Professor Lui, although ‘formally’ instructed in mid-June 2005, only produced a draft statement on 6 July 2005.
[65] The incidents described by the applicants are insufficient to explain their delay. In response to a question from me in the course of his submissions, Mr Dykes singled out the time required to prepare Professor Lui’s evidence as the key contributor to the delay. But, in my view, the time taken to consult lawyers or experts is an ordinary incident of any litigation and cannot by itself excuse delay.
[66] Mr Dykes’ skeleton asserts that ‘no prejudice arises’. But in submission he acknowledged that there may or may not be prejudice to NHKTC as a result of the late application here. There is no evidence one [*413] way or the other on the point.
III. Conclusion
[67] For the reasons canvassed above, leave to apply for judicial review is refused.
MOHAMAD IZAHAM MOHAMED YATIM
The Mathematical Theory of Nothing
Anti Cyber Forensics
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