Home | Databases | WorldLII | Search | Feedback Victorian Reports

You are here: AustLII >> Databases >> Victorian Reports >> 1993 >> [1993] VicRp 60

Anderson v Blashki [1993] VicRp 60; [1993] 2 VR 89 (5 April 1993)

ANDERSON v BLASHKI

SUPREME COURT OF VICTORIA

GOBBO J

4 February 1993, 05 April 1993

Gobbo J: In May 1992 Ms. Susan Adele Blashki, in her capacity as coroner, held an inquest into the death of Mrs Mary Blain. On 2 June 1992, the coroner found that death occurred on 23 August 1989 at Trentwood Private Hospital, 52 Northcote Avenue, Caulfield, from congestive cardiac failure, hypertension, arteriosclerosis and abdominal aneurism, consequent upon injuries sustained in the circumstances set out in the coroner's reasons. The coroner also decided that Diane Gayle Anderson contributed to the death of the deceased.

The deceased, Mary Blain, aged 77 years, had been admitted to Trentwood Private Hospital (a hospital for psychiatric care) on 3 August 1989. On admission she was described as being physically able but suffering from pre existing abdominal aneurism, arteriosclerosis, hypertension, cardiac failure and bouts of depression.

On the night of 23 August 1989 her condition deteriorated. One of the nursing staff on duty that night, Norma Venders, gave evidence at the inquest that between 9.30 and 11.45 pm, the deceased suffered incontinence and that she and the plaintiff, who was the Charge Sister, had difficulty assisting the deceased from the toilet back to bed. The deceased's condition deteriorated further that night and at 7.30 pm she was unconscious and breathing shallowly. Her death was recorded at 8.30 am.

Dr Bennett certified the cause of death as being heart attack. Nearly a year after the deceased's death, Mrs Venning, a patient occupying the room next to that of the deceased, informed the hospital and later the police that she had seen the plaintiff kick the deceased during the night before she died. Following this complaint and some 17 months after her death, the body of the deceased was exhumed and subjected to detailed forensic examination. Some blood staining was found on the back of the head and on the mid to lower back region. The forensic evidence was that the stains were consistent with bruising; there were no fractures or abrasions found.

At the inquest the plaintiff did not give evidence. The coroner invited the plaintiff to give evidence. When the plaintiff's counsel submitted that she should not be called, the coroner indicated that the plaintiff would be called and examined unless she went into the witness box and took the self-incrimination objection. The plaintiff did so and was thereupon excused from further questioning.

Mrs Venning gave evidence that, at 3.00 am on the night in question, she witnessed the plaintiff drag the deceased from her bed and then kick the deceased on the ribs and head several times. The coroner accepted Mrs Venning's allegations as having "a basis of truth" and stated that the plaintiff had contributed to the cause of death of Mary Blain. The coroner did not in terms find that the plaintiff had kicked the deceased, though that was to be implied from her findings.

The plaintiff now applies, pursuant to s59 of the Coroners' Act 1985, for an order that certain of the coroner's findings are void.

S19 of the Coroners' Act 1985 provides:

"(1) A coroner investigating a death must find if possible

(a) the identity of the deceased; and

(b) how death occurred; and

(c) the cause of death; and

(d) the particulars needed to register the death under the Registration of Births Deaths and Damages Act 1959; and

(e) the identity of any person who contributed to the cause of death."

S59 provides:

"(1) Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.

"(2) The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner

(a) to hold an inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or

(b) to re open (or direct another coroner to re open) the inquest and to re examine any finding.

"(3) The Supreme Court may only make an order if it is satisfied that

(a) it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or

(b) there is a mistake in the record of the findings; or

(c) it is desirable because of new facts or evidence; or

(d) the findings are against the evidence and the weight of the evidence."

The plaintiff's originating motion identified the findings in question as follows: Finding 1: That Norma Venders, a nurse at Trentwood Private Hospital, did not see the deceased out of bed after 9.30 pm on the evening of 22 August 1989. Finding 2: That Catherine Venning had no motive to tell lies about the applicant. Finding 3: That Catherine Venning was not in collusion with other former patients to falsify information. Finding 4: That the description of events given by Mrs Venning was corroborated to some extent by available forensic evidence. Finding 5: There was nothing to suggest Catherine Venning was an unreliable witness. Finding 6: No reason had been suggested as to why matters of such great seriousness should be fabricated by Catherine Venning. Finding 7: There was no evidence to contradict the account given by Catherine Venning. Finding 8: The applicant had contributed to the death of Mary Blain.

The legislation, which was put forward in Parliament as a model of clear comprehensible English, is neither clear nor easily comprehensible. Thus it is not clear what is comprehended in the word "finding" in s59 and therefore what findings are open to challenge. It would produce absurd results if every finding of fact was open to challenge on appeal, yet that is open on a literal meaning of "finding" in s59 of the Act.

The plaintiff has set out the above eight findings as those which she seeks to have declared void. In my opinion findings are to be defined for the purposes of s59 of the Coroners' Act 1985 according to the specified decisions required of the coroner in s19 of the Act. This approach finds some support in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 where, at 620, Toohey J equates a "finding" to a "decision" of a coroner. It needs to be noted however that there the West Australian legislation in question spoke of a decision or finding. The plaintiff's first seven points, as set out above, are merely the coroner's findings of fact, the "decision" being the finding that the applicant had contributed to the death of Mary Blain. The plaintiff only needs to apply that finding 8 be declared void; the first seven "findings" can be considered as simply part of the material on the issue of the finding under attack.

There is another feature of the legislation that creates difficulties. S59 enables findings to be declared void if the court is satisfied that it is necessary or desirable to do so because of consideration of evidence. What does consideration of evidence mean? It cannot mean that a finding can be set aside because evidence was considered by the coroner. If it means, as one assumes, possible avoidance because of the way in which the coroner considered evidence, that still leaves the matter in an extremely ambiguous light. Doing the best I can with this unclear, somewhat incomprehensible phrase, I conclude that it must mean by reason of some error of law or misdirection or error of fact.

S59(3)(d) appears to enable a finding to be set aside as being "against the evidence and the weight of evidence". This imposes a heavy burden on the court since it involves the court in reviewing the whole of the evidence and examining for itself all issues of fact, including inferences from the evidence. It has to decide the matter for itself, despite conflicting evidence. See London Bank of Australia Ltd v Kendall [1920] HCA 53; (1920) 28 CLR 401, at 407; Scott v Pauly [1917] HCA 60; (1917) 24 CLR 274, at 279; Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212, at 219 to 220; Warren v Coombs [1979] HCA 9; (1979) 23 ALR 405, at 411 and Karabotsos v Plastex Industries Pty Ltd [1981] VicRp 65; [1981] VR 675, at684. The court should place importance on findings as to credibility of witnesses by the tribunal at first instance. See Donaldson v Freeson [1934] HCA 13; (1934) 51 CLR 598, at 609 and Burman v Woolf [1939] VicLawRp 57; [1939] VLR 402, at 407.

The task faced by the court is a comprehensive and time consuming one and virtually involves a re hearing, based on the evidence given below. This is a quite different method of review to that which the court is obliged to carry out in relation to decisions of magistrates in their ordinary civil and criminal jurisdiction. There, the court is not entitled to set aside findings of fact unless the finding was such that there was no evidence to support it, or it was a finding that no reasonable magistrate could have come to. See Young v Paddle Bros Pty Ltd [1956] VicLawRp 6; [1956] VLR 38, at 41. Nothing appears in the parliamentary debates to indicate why the legislature found it necessary to depart from the conventional method of review established for other reviews of decisions of magistrates by this court.

I turn then to the critical finding that the plaintiff contributed to the death of the deceased. In a sense there was also a finding as to how the deceased met her death but this was not spelt out by the coroner and at the end there was no finding as to whether the deceased was kicked by the plaintiff.

The account given by Mrs Venning can be summarised as follows. She said that at about 3.00 am on the morning of 23 August 1989 she was awoken by some mumbling noises from the deceased's room which was located adjacent to her room. Then she heard Nurse Anderson's voice shout from the nurses' station "You can wait until I'm ready, Mary". Then she heard the deceased crying. She jumped out of bed and went to see what was upsetting the deceased. She stopped at the door of the deceased's room and witnessed Anderson dragging the deceased out of bed by her wrists from the window side of the bed. She then watched Anderson dump the deceased on the floor, drag her around to the middle of the room where Anderson proceeded to kick the deceased. Venning said she ran to the nurses' station seeking help but upon finding the station unattended she returned to the deceased's room where Anderson was, by this stage, dragging the deceased into the en suite bathroom. Venning observed Anderson apply further kicks to the deceased in the bathroom before Venning returned to her room and eventually fell asleep.

The acceptance of Mrs Venning's account depends not only on her credibility but also on whether it could properly be said that it was supported by the forensic evidence as to the possibility that there was bruising to the head and back. This leads one to see whether there was any other explanation consistent with the bruising. There was, in fact, an explanation of which the coroner made no mention in her reasons, namely that the deceased suffered a fall some days before her death.

Ann Langdon and her husband Thomas Langdon gave evidence that they visited the deceased at the hospital on Saturday 19 August 1989. They both recounted the deceased's complaint that she had fallen by the side of her bed and suffered back and head ache, the two areas where discolouration later appeared. Mr Langdon stated that he went to investigate the incident with the hospital staff and was told by an unidentified nurse that the deceased had fallen a couple of days ago. Their evidence was supported by the evidence of the daughter of the deceased, Helen Hill, who recounted a telephone conversation with Mrs Langdon who told her of the fall and expressed her concern over the deceased's physical deterioration. The nursing records refer to complaints by the deceased of back pain and headache.

The forensic evidence offered neither discounted nor confirmed the kicking or the fall incident. Due to the delay of 17 months before the body of the deceased was exhumed, the medical evidence proffered was fraught with uncertainties as decomposure had begun. So deteriorated was the body that Dr Lee was unable to give a precise cause of death. Dr Lee could not specifically state that the two areas of discolouration were derived from bruising but did state that they were consistent with ante mortem blood trauma. Due to post mortem decomposition it was not possible to pinpoint the age of the bruise.

Although the deceased merely talked about general discomfort in the back and the head after the fall, Mr Willee QC, who with Mr Gillespie Jones appeared for the plaintiff, correctly submitted that the part of the body alleged to be kicked correlated with the forensic evidence only in the most general sense. Mrs Venning was vague as to whether the kicking was to the front, side or back of the right side of the torso and she was equally vague upon cross examination as to the precise point of kicks to the head.

Dr Lee advised the coroner that such deep bruising could take a matter of weeks to appear and the decomposure process after death would slow down such process. This timing would be consistent to the kicking on 23 August 1989, or the fall in mid August 1989. Dr. Lee confirmed that both areas of bruising were consistent with a fall onto an object, although it was more likely to see a rib fracture in that circumstance.

The evidence of the embalmer, Broughan, and the doctors who confirmed the death, Drs Friebel and Bennett, neither confirmed nor discounted Venning's story or the fall incident. All three noted no signs of violence on the body. It is significant that there was no sign of any abrasions of the kind likely to follow heavy kicking.

With further reference to the question of the fall, there is also to be noted Dr Collins' evidence which identified that the deceased suffered from tardive dysinesia which made her unsteady on her feet. Although Dr Bennett said that it was standard hospital procedure for an incident report to be filled out if a patient suffered a serious fall and no incident report had been made, the nurse's notes on 16 and 19 August 1989 did mention back ache which, according to Dr Lee, can be evident before bruising appears. Dr Collins also confirmed that a person may get pain before bruising appears which provides an explanation for the deceased' s complaints.

Dr Collins also suggested that he would expect to see fractures from a kick which produces such deep bruising on a person as frail as the deceased and that skin abrasions were more likely to follow kicking rather than afall. He said that no skin damage would be expected from an injury by a fall where the force was spread over a wide area.

It was also clear from the medical evidence that although the death was sudden, it was no surprise that the deceased passed away of natural causes during that night. At the time, the deceased's prognosis was poor. She rarely got out of bed and suffered ankle swelling and oedema, which was an indication of possible cardiac failure. On the evidence, it was not necessary that an unnatural incident, such as an assault, was required to cause a total deterioration in the deceased's condition.

The possibility of a fall being the cause of the bruising on the deceased was not put adequately to all the doctors, as none of the statements which refer to the fall were placed on the coroner's file prior to 25 May 1992, and consequently counsel for the plaintiff was not aware of their existence until the second last day of the inquiry.

There are two further matters in the evidence that merit particular mention, especially as to the credibility of Mrs Venning. Mrs Venning did not go to anyone in authority until a year after the incident, though she did discuss the incident with a group of patients the next morning. One of these patients was called and stated that Mrs Venning said she had seen the nurse dragging the deceased to the bathroom. She made no mention of any kicking. This was of great importance for it is surprising, to say the least, that Mrs Venning would have omitted to mention such a crucial and dramatic part of what she claimed she saw. A dragging incident is an entirely different kind of incident for it was consistent with the act of a nurse attempting to move or handling a large incapacitated patient. It was just this kind of incident that had occurred earlier on the critical evening when Mrs Venders had sought, with great difficulty, to prevent the deceased collapsing onto the floor.

The final matter in the evidence that is to be noted is the evidence of Mrs Venning's psychiatrist that she was being treated for depression and that she was prone to significant inconsistency and "histrionic exaggeration".

Before addressing the question as to the coroner's finding on contribution and her implied finding as to the kicking allegation, it is necessary to consider the matter of standard of proof. The Coroners' Act 1985 does not specify what standard of proof a coroner is required to apply. S19 of the Act and the scheme of the Act splits the traditional dual function of the coroner, both to investigate and to commit for trial if appropriate. The procedure now is one of investigation without power to commit for trial. There is no precise case law to assist in the question of what is the appropriate standard of proof to be used in relation to the 1985 legislation and Parliament has provided no assistance either in the debates or by way of explanatory notes.

Counsel for the plaintiff submitted that, in an inquiry where the possible finding is that a serious assault was committed which occasioned the death of the deceased, a criminal standard of proof was appropriate. Counsel for the coroner submitted that the more appropriate standard was that of the lower civil standard.

In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 362 to 363, Dixon J, as he then was, provided a classic statement as to the appropriate standard of proof to be used in civil cases: " . . . reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences . . . When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."

In applying Dixon J's decision, Blackburn CJ in the Supreme Court of the Australian Capital Territory decision of Barten v Williams (1978) 20 ACTR 10 held that the balance of probability standard is not to be applied merely mechanically on a serious issue such as a decision which could lead to the cancellation of the builder's licence and determine his capacity to earn his livelihood as a builder. The civil standard is qualified so that the court can regard a fact as established only if it can entertain a reasonable satisfaction of its truth.

These being civil proceedings, the assault allegation is required to be proved on the lesser standard on the balance of probabilities despite the criminal nature of the allegation. But, because of the gravity of the allegation, proof of the criminal act must be "clear cogent and exact and when considering such proof, weight must be given to the presumption of innocence". See Cuming Smith and Co Ltd v Western Farmers Cooperative Ltd [1979] VicRp 15; [1979] VR 129, at 147.

Brennan J in Annetts v McCann, referred to the standard of proof issue but only in an oblique fashion. Unlike Victorian law, the Western Australian Coroners' Act 1920 provides explicitly that a coroner has the power to commit a person to trial for murder if the coroner is satisfied "beyond reasonable doubt": s12A(1)(a). The legislation does not specify what the standard is for all other cases but Brennan J. referred in his judgment to the necessity for decision makers to consider personal reputation with sensitivity in fulfilling their statutory duty.

Brennan J referred to Lord Diplock's judgment in the Privy Council decision of Mahon v Air New Zealand Ltd [1984] AC 808, at 820, where Lord Diplock said that he who contemplates making an unfavourable finding "must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it . . . ".

In applying the Briginshaw test to the facts in this case and keeping in mind the words of Lord Diplock in Mahon's Case, the nature of the allegation here demands a high standard of proof. The allegation involves a deliberate assault by way of kicking with a shod foot of some force when the patient was lying on the floor. There is no question of accident or negligence. The extremely deleterious effect the finding has upon the plaintiff's character, reputation and employment prospects demand a weight of evidence that is commensurate with the gravity of the allegation.

The principal, if not the only, submission offered by the plaintiff's counsel at the hearing was that Mrs Venning had fabricated the entire assault story. S19 of the Coroners' Act 1985 allows as much investigation as required and s44 provides that the coroner is not restricted to the rules of evidence. Whether the way in which the plaintiff's counsel argued the case, it had been open to the coroner to find that Mrs. Venning had witnessed an incident but she did not have to necessarily accept the accusation of a violent assault by kicking.

Although it is possible that the assault took place as claimed by Venning, it is equally possible that, assuming the blood discolouration represented bruises, those bruises were a result of a fall and Venning merely witnessed an incident whereby the nursing staff were attempting to handle a patient in difficult circumstances. Venning was not able to confirm that the time of the alleged incident was 3.00 am and therefore it was open that she had witnessed the incident earlier that night or the incident described by Nurse Venders as occurring between the hours of 1.00 4.00 am.

The coroner's view that Venning's description of the events was corroborated to some extent by the available forensic evidence puts the matter inaccurately as the medical evidence could not be corroborative of anything due to its generality.

I have concluded that the finding that the plaintiff contributed to the death and that she kicked the deceased cannot stand. I am conscious of the particular advantage the coroner enjoyed in watching Mrs Venning give her evidence, but giving due weight to this, I am still compelled to set aside the finding for the following reasons.

The first is that there were inherent deficiencies in Mrs Venning's account in that she came forward only after such a long time and she never mentioned the kicking at the first relevant opportunity. It is also material that she never adequately explained the delay in coming forward. The further significant matter on credibility was her psychiatrist's evidence as to her condition and that she was prone to histrionic exaggeration.

The second matter of importance that tells against the coroner's findings is the inconclusiveness of the forensic evidence and the very limited way in which the experts were asked to address the crucial fact, not referred to in the coroner's reasons, that the deceased had suffered a fall a few days before her death, causing her to complain of head and back pain.

Finally, there is the matter of the standard of proof. The coroner spoke of Mrs Venning's allegations as having "a basis of truth". This does not suggest that the coroner was using a standard of proof appropriate to the gravity of the allegations against the plaintiff.

I have concluded that, having regard to the standard of proof necessary, there was insufficient evidence to sustain a finding that the plaintiff kicked the deceased and injured her, thereby contributing to the death of the deceased.

It should be noted that although s59 contemplates a full scale review of the evidence, the court is placed in an invidious position as only the party seeking to avoid a finding makes submissions on the evidence. The Act creates an odd situation, for there is no informant as such, so that when the decision comes up for review from the lower court, there is only the plaintiff present. Though the coroner, as defendant, was represented by counsel, the latter followed the customary practice of not putting submissions designed to defend the coroner's findings on the merits but confined himself to submissions on the law. This situation is unsatisfactory as it poses great difficulty for a court which must be wary about basing its decision upon the unchallenged submissions on the facts as offered by the plaintiff.

The provision in s59(3)(d) which enables a challenge to the coroner's findings as being against the evidence was inserted in the Coroners' Act in 1985 for the first time. It was a recommendation of the Sir John Norris Report in 1980 but it needs to be noted that the same report recommended retention of the then existing requirement that there be no challenge to a coroner's finding without the leave of the Attorney General. That requirement was removed in 1985.

There is one further argument canvassed before me that needs comment, namely, that the coroner must have drawn an adverse inference from the plaintiff's failure to give evidence in that the coroner stated that Mrs Venning's evidence had not been contradicted. I am not satisfied that this reference signified that the plaintiff's failure to give evidence created an adverse inference which the coroner then took into account. I would have expected the coroner to have said so expressly if this had been so. This makes it unnecessary to decide what use can be made of the failure of a person against whom allegations are directed to give evidence. There must obviously be strict limits on the inferences possible in such circumstances. Given the nature of the allegations, it would be proper to apply by analogy the rules in a criminal proceeding and I do not propose in any event to draw an adverse inference against the plaintiff in the circumstances of this case from her failure to give evidence. But I am not to be taken as expressing any view that failure to answer questions in routine investigations of fatal accidents for example should not be able to be used within strict limits as part of the evidentiary material on a coroner's investigation. Much less am I casting any doubt on the ambit of the powers conferred on the coroner by the Coroners' Act.

There remains the question as to whether there should be a new inquest or what other order should be made. S59(2) provides:

"The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner

(a) to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or

(b) to re open (or direct another coroner to re open) the inquest and to re examine any finding."

Neither the plaintiff nor the defendant requested or submitted that there should be a new inquest or a re-opening of the inquest. I have not been asked by the plaintiff to make findings which positively find that the plaintiff did not cause injury to the deceased and I doubt whether such a course is open to me. The plaintiff has not asked for a further hearing and has limited her request to a setting aside of the finding of the coroner that impliedly stated that the plaintiff kicked and injured the deceased and the finding that, by reason of such injuries, the plaintiff contributed to the death of the deceased. I accordingly declare that those findings are void and I make no order for a new inquest or for a re opening of the inquest.

Order accordingly.

Solicitors for the applicant: Jones Septimus and Lee.

Solicitor for the respondent: Victorian Government Solicitor.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback

URL: http://www.austlii.edu.au/au/cases/vic/VicRp/1993/60.html

