QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MOWLEM PLC||(CLAIMANT)|
|HM ASSISTANT DEPUTY CORONER FOR THE DISTRICT OF AVON||(DEFENDANT)|
|JENNIFER COX||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR RICHARD EATON (solicitor/advocate, instructed by Head of Legal Services, Bristol City Council) appeared on behalf of the DEFENDANT
MISS LISA STEPHENSON and, for judgment, MR DAVID WHITE (counsel) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
(a) abrasions and lacerations, thus visible externally, at the back left side of the deceased's head;
(b) extensive internal bleeding, not reflected externally, at the front left side of the head;
(c) a fracture of the skull; and
(d) extensive cerebral contusion and brain swelling.
The professor's conclusion, obvious and unchallenged, was that the cause of death was injury to the head. Indeed the deceased had no significant injuries other than to the head. The professor wrote in his report:
"The appearances are entirely in keeping with injuries sustained as a result of falling from a ladder and striking the head on a hard surface."
(a) first he would, by ladder ("the first ladder"), climb about 2.5 metres, also described however as about 10 feet, from the floor of Cross Bath to the roof of the locker room;
(b) second he would walk about 12 metres across the locker room roof to the foot of another ladder ("the second ladder");
(c) third he would, by the second ladder, climb about 1.5 metres to the roof of Cross Bath; and
(d) fourth he would walk across the roof of Cross Bath to the ducts.
(a) When found by the supervisor, the deceased was holding the three sticks which that morning he had applied to the grilles. That was a clear pointer to the likelihood that the accident had happened at a point or points on his way back from the ducts to the floor of Cross Bath.
(b) On the locker room roof the second ladder was found to be lying flat. In that regard the suggestion of one witness was that the deceased had successfully come down the second ladder and had lain it flat.
(c) On the locker room roof were a series of ridges, wrapped in lead, protruding up by about three inches, against which it would be possible to stumble. There were also at least two square stone pillars running up the side of that roof against which, and in particular against the sharp corners of which, it would be possible for a head to fall.
(d) Soon after the deceased was discovered bleeding, his hard plastic helmet was discovered on the locker room roof about four feet from the first ladder. That was clear evidence that the injuries were not sustained, or certainly not only sustained, by a fall from the locker room roof on to the floor of Cross Bath.
(e) The peak of the helmet was found to be cracked. That was further evidence of hard impact to the front of the deceased's head, arguably more likely to have been sustained by a fall forward than a fall downward.
(f) When discovered by the supervisor, the deceased was sitting some yards away from the foot of the first ladder, which was propped in its usual position. There was only a small pool of blood near the foot of that ladder or otherwise visible.
"[The deceased] finished his task and was returning along the rear of the locker room roof towards the ladder. He tripped over one of the leaded joints on top of the locker room roof and banged the front of his head on the lead roof, losing his safety helmet in the process. He may not have been able to arrest his fall as he had the small sticks that he collected in his hands. Being injured and stunned from this fall [the deceased] climbed down the ladder without incident then passed out whilst at ground level banging the rear of his unprotected head on the stone floor. When consciousness returned he went and sat down by the entrance where [his supervisor] found him."
Mr Frain's comment on that hypothesis was as follows:
"This seems to be the most likely scenario. It is supported by the pathology to some degree, as there is confirmation that there were two separate head injuries and no other significant injuries. Police CSI were unable to add much information because of the passage of time before they saw the scene, but Police officers suggested that the small pool of blood on the poolside was more likely to have been the result of impact from a lower height. The ladder was not disturbed by the accident."
Before commending that hypothesis to the coroner, Mr Frain had, as he implied, checked with Professor Love that it was consistent with the medical evidence. By his letter in reply to Mr Frain the professor confirmed that the injuries to the front and back of the head were the result of impact at each of those two points; that his assumption had been that all the injuries had been sustained in a fall, with perhaps one impact against the ladder and the other against the floor; but that it was entirely possible that one had occurred on the roof and the other on the floor.
"Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker, it may, subject to any statutory provision, take the decision itself."
But in the commentary upon that paragraph in the White Book 2004 cautionary notes are sounded about the scope of the proper exercise of this power as follows:
"The scope of this power is unclear. Judicial review is primarily concerned with controlling the exercise by public bodies of statutory or other public law powers conferred upon them. The role of the court is to ensure that those bodies do not exercise those powers unlawfully; it is not the role of the court to determine how those powers should be exercised. Normally, therefore, the courts will not be in a position to determine that there is no purpose to be served in remitting the matter to the decision-maker and taking the decision itself. It may be that there will be occasions when it is clear that a public body must take a particular decision and any refusal to do would be Wednesbury unreasonable. It is theoretically possible that, in those cases, the power conferred by CPR, r.54.19(3) can be exercised. In general, however, there would seem to be little scope for this power to be exercised."
"I do have one or two observations if I might, and whilst these may not bear any immediate connection to the way in which [the deceased] met his death they are indeed matters of some concern and I have to say that I applaud Mowlem for the fact that they have considered the circumstances and are looking to review their systems where they can. But, perhaps they should consider the risk assessments of an individual no matter how experienced working on a roof with an untethered ladder for any period of time where he is working on his own. One wonders also at an internal investigation, which on the one hand finds no evidence as would lead to the circumstances of death, but where we find also that an Accident Book was completed some two weeks after the event. I make those comments with a view to perhaps a tightening of an already robust system, and the problem with systems of course is that they are as good as the human beings who operate within them, and whilst high standards have been set by this company, I trust those who operate the systems will ensure a robust and rigorous compliance with those systems as are required from time to time."
"(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely -
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars for the time being required by the Registration Acts to be registered concerning the death.
(2) Neither the coroner nor the jury shall express any opinion on any other matters."
The claimant also argues that, if a coroner considers that the evidence suggests a need for action to reduce the risk of a further accident in like circumstances, his proper course is set by Rule 43 of the Rules, which provides:
"A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly."
Thus, according to the claimant, it was open to the coroner to announce that he would report the matter, for example to the Health and Safety Inspectorate, and notwithstanding that the latter had already, by Mr Frain, conducted an investigation.