Supreme Court of Ireland Decisions

1. These proceedings arise out of an inquest held by the respondent/appellant (hereafter “the coroner”) into the death of Alan Duffy on the 31st December 1995. The inquest was opened on the 4th December 1997 and was subsequently adjourned from time to time. On the last day on which it sat, the 29th March, 1999, it was adjourned until the 19th April 1999. On the 12th April 1999, however, the applicant/respondent (hereafter “the board”) were given leave by the High Court (McCracken J) to apply for a number of reliefs including

2. It was also ordered that the notice parties, who are the parents of Alan Duffy, should be joined in the proceedings.

3. A statement of opposition having been filed on behalf of the coroner, the substantive hearing came on before Geoghegan J. In a reserved judgment delivered on the 14th December 1999 (now reported at [2000] 1 ILRM 446), he held that the hearing of the inquest was conducted by the coroner ultra vires the provisions of the Coroners Act 1962 (hereafter “the 1962 Act”) granted the first declaration sought. From that decision, the coroner has now appealed to this court.

4. The evidence as to the circumstances giving rise to the inquest and the manner in which it was conducted by the coroner are described in affidavits sworn by the solicitor for the board and the coroner. While the account given by the solicitor is, in broad terms, accepted by the coroner, he takes issue with that account in some respects and, no further affidavits having been filed in the High Court, the appeal proceeded on the assumption that the coroners version of events, to the extent that it differed from that given by the solicitor, was not now in dispute.

5. Alan Duffy (hereafter “the deceased”) was born on the 11th May 1973 at Mount Carmel Hospital, Dublin : he was, accordingly, aged 22 when he died. It is not in dispute that he was given what is generally known as “the 3-in-1” vaccine which incorporates a vaccine against pertussis (“whooping cough”) on the 17th October 1973, the 12th December 1973 and the 5th February 1974 and that, on being subsequently admitted to Our Lady’s Hospital for Sick Children Crumlin, on the 17th July 1974, when he was aged 14 months, he was diagnosed by Professor Neil O’Donoghue, the paediatrician, as suffering from a degree of mental handicap.

6. The deceased was admitted to the Mater Hospital on the 21st December 1995, where he was diagnosed to be suffering from pneumonia. He was then moved to intensive care and died ten days later. Dr. Padraig MacMathuna, a consultant physician and gastroenterologist at the hospital, was of the view that his death was caused by “aspiration pneumonia due to cerebral palsy” and proposed to complete the death certificate in those terms. The notice parties objected to his doing so, on the ground that the cause of death was aspiration pneumonia due to mental handicap caused by an encephalopathic reaction to the pertussis vaccination.

7. It was in those circumstances that the coroner proceeded to hold the inquest. Before doing so, however, he wrote to the board asking then to arrange for an official to attend the inquest and furnish it with evidence as to the immunisation/medical notes and records relating to the deceased.

8. When the inquest began, Dr. MacMathuna gave evidence that he was unwilling to attribute the death of the deceased to the immunisation that he had received as a baby and that “aspiration pneumonia” was the cause of death. He said that, as the deceased was suffering from “severe mental handicap” he was at a much higher risk of aspirational pneumonia and other infections. He agreed with the coroner that the medical description of the deceased’s cause of death was

9. Dr. MacMathuna also said that the term “cerebral palsy” is an umbrella term used to describe mental retardation of the type suffered by the deceased and that this neurological condition would have been an exacerbating factor in his death.

10. The first named notice party, the mother of the deceased, then gave evidence. She said that she had noticed a reaction in the deceased shortly after he had been given the injection : the colour drained from his face and his eyes rolled in his head. She also said that her sister and first cousin suffered from epilepsy and that her understanding was that the vaccination should not have been given in such circumstances.

11. At this stage in the inquest, counsel on behalf of the board objected to the manner in which the coroner was proceeding with the inquest on the ground that it was inappropriate that matters affecting the possible civil or criminal liability of parties not present should be decided by the inquest.

12. The coroner overruled that objection and Professor O’Donoghue next gave evidence. He said he had not been informed by the deceased’s mother of any adverse reaction to the vaccine. He also said that there was no evidence to link the deceased’s condition of mental handicap to the vaccine. He also gave evidence that, while in the mid 1970’s there was widespread concern in the medical profession as to adverse reactions to the 3-in-1 vaccine, the current belief is that there is absolutely no link between the vaccine and any adverse reaction.

13. It should be pointed out at this stage that there was a conflict of evidence between Professor O’Donoghue and the deceased’s mother at the inquest as to whether the deceased had shown any signs of abnormality prior to the administration of the vaccine. The former said that his notes were to the effect that the baby’s developmental progress had always been delayed after birth and that in particular the absence of a smile would give cause for concern. The deceased’s mother said that this was not so, that the baby smiled normally and that no difficulties were evident until after the vaccination. She produced in evidence photographs of the deceased during the early months of his life to corroborate this.

14. Evidence was also given by Dr. Barbara Stokes, the Chief Medical Officer of St. Michael’s Hospital and Professor Maurice Tempany of the Royal College of Surgeons. It is stated in the solicitor’s affidavit that, while they gave separate accounts of the treatment of the deceased, they did not disagree with the conclusions drawn by the previous expert witnesses. In his affidavit, the coroner said that three other expert opinions had been submitted to him by the notice parties from Professor Peter Behan, Dr. John Wilson and Professor John Stephenson. He said that Professor Behan and Dr. Wilson were of the opinion that vaccinations could cause encephalopatic reactions, but that Professor Stephenson took the opposite view.

15. Evidence was also given by witnesses having control of the relevant records on behalf of the board. Many of the medical records had been damaged or destroyed, the health centre where they were stored having been broken into and burnt down. In the result, the board had no records relating to the deceased which had not been disclosed to the notice parties.

16. The coroner then stated that the jury needed to know the circumstance surrounding the administration of the vaccine in the 1970’s. He said that he accordingly proposed to commission a report from an independent medical expert, Dr. Karina Butler, a consultant in paediatric infectious diseases at Our Lady’s Hospital Crumlin and the Children’s Hospital, Temple Street. The inquest was adjourned from time to time pending the completion of this report which was ultimately furnished to the board on the 17th December 1998. The report is forty three pages in length and contains references to fifty seven studies carried out by experts in different parts of the world which Dr. Butler considered relevant to her report. Her conclusion is as follows:-

17. Following the receipt of the report, the inquest was again adjourned, as already noted and, on the 15th March the solicitors for the board wrote to the coroner expressing their concern as to the manner in which the inquest has been conducted. Having indicated the writer’s doubts as to the legality of the lengthy adjournments to date of the inquest, the letter concluded:-

18. The coroner on 18th March 1999 wrote to the solicitors for the board as follows:

19. There followed the initiation of the present proceedings on behalf of the board.

20. Two further points should be noted. The coroner in his affidavit said - and this was not disputed - that while aspiration pneumonia was a “proximal or terminal cause of death”, it was always the consequence of some other condition “which is the true cause of death”. While the coroner accepted that counsel on behalf of the board made “certain points” regarding the procedure to be adopted, he also said that he made no formal objection to the inquest. It would appear, however, from the affidavit of the solicitor for the board that counsel instructed by him on a number of occasions expressed his clients’ concern at the manner in which the inquest was being conducted.

21. In his judgment, the learned High Court judge, having set out the facts, dealt first with a claim made on behalf of coroner that the application for judicial review had not been made promptly or in accordance with Order 84, Rule 21(1) of the Rules of the Superior Courts. Having considered that ground of opposition, he concluded that he should not decide the issues raised in the judicial proceedings solely by reference to the time which has elapsed before those proceedings were initiated. On this appeal, his finding to that effect has not been challenged by the coroner or the notice parties.

22. The High Court judge went on to consider whether the actions of the coroner were in breach of s.30 of the 1962 Act which provides that questions of civil or criminal liability are not to be considered or investigated at an inquest and that inquests are to be confined to ascertaining the identity of the deceased person and “how, when and where the death occurred.” He referred to the decision of this court in Greene -v- McLoughlin (Unreported, Judgment delivered 26th January 1995) as to how this section should be construed and to a decision of the English Court of Appeal in R -v- North Humberside Coroner, Ex Parte Jamieson [1995] QB 1 as to the interpretation of the equivalent English legislation. He summed up his conclusions as follows:

23. He went on to refer to s.26 of the 1962 Act which he said appeared to restrict the right of the coroner to call additional witnesses and also said that it was in his view undesirable to permit an inquest before a jury to be adjourned for such a length of time for the purpose of getting fresh expert evidence.

24. The High Court judge further said that it seemed to him that the notice parties wanted the possible link with the 3-in-1 vaccine to be investigated for the purpose of “pinning fault”, but that he was also satisfied that the coroner was genuinely investigating whether there could have been a link or not, independently of any question of fault. He was, however, satisfied that the board were entitled to a declaration that the conduct of the inquest, insofar as it purported to examine or determine that issue, was ultra vires the 1962 Act.

25. On behalf of the coroner, Mr. Gerard Hogan SC and Mr. Michael Conlon submitted that the express prohibition in s.30 of the 1962 Act on the consideration or investigation of questions of civil and criminal liability was clearly intended to ensure that irrelevant issues would not be raised and examined which were outside the proper scope of the inquest : it did not mean that the investigation of facts which might have a bearing on civil liability was prohibited. That this was the rationale of s.30 and of the corresponding legislation in England was made clear by the report of a Departmental Committee on Coroners in the United Kingdom (Cmnd 5070) 1936 and this had also been made clear in the decision of the English Court of Appeal in R -v- North Humberside Coroner, Ex Parte Jamieson.

26. They further submitted that the word “how” in s.30 should not be construed as confining the inquiry to the proximal cause of death : this would have the effect of confining the role of the coroner to merely admitting the pathologist’s post-mortem report at the inquest. They submitted that, insofar as a dictum of Blayney J in Greene -v- McLoughlin suggested that the question as to how death occurred in any particular case was a medical question for a doctor to be answered, if necessary, by performing a post mortem examination it was unduly restrictive and should not be followed. They urged that such an interpretation failed adequately to take into account the purpose of the coronial system as explained by this court in Farrell -v- Attorney General [1998] 1 IR 202.

27. On behalf of the notice parties, Mr. Paul Gardiner SC submitted that, if the view taken by the learned High Court judge was correct, the same objection would have to be raised to an inquiry by the coroner into whether the 3-in-1 injection had caused the death of the deceased where the death had occurred within a matter of days from the injection being administered. That could not have been the intention of the Oireachtas in enacting s.30(1) of the 1962 Act. He also referred to the finding of the High Court judge that the Board were afraid that a misguided jury could make a recommendation not warranted on the evidence which would be “extremely damaging” to the public confidence in the vaccine practices. He submitted that this was an entirely erroneous approach to the issue in the present case : the Oireachtas had entrusted the decision of these matters to juries and had empowered them to make general recommendations designed to prevent further fatalities.

28. On behalf of the board, Mr. Peter Finlay SC submitted that under our law an inquest was a fact finding inquiry conducted by a coroner, with or without a jury, intended to establish reliable answers to four important but limited factual questions. He submitted that the language used in s.30 in defining the fourth question, i.e., “how.... the death occurred”, was wholly irreconcilable with an authority to the coroner to conduct the sort of wide ranging inquiry which he had undertaken in the present case , citing the comments of Sir Thomas Bingham, MR, as he then was, in R -v- N. Humberside Coroner, Ex Parte Jamieson.

29. Mr. Finlay submitted that, in the present case, there was clear medical evidence that the cause of death was aspirational pneumonia. There was no statutory authority for the course undertaken by the coroner of commissioning a report by an independent expert to determine whether that illness was the result of a particular condition which in turn had been brought about by the 3-in-1 vaccination : such an inquiry, as the report of Dr. Butler amply demonstrated, was necessarily lengthy and far reaching in its scope. As such, it was entirely outside the form of limited inquiry into the cause of death envisaged by the 1962 Act, an inquiry which, under the provisions of s.30, was expressly intended not to pre-empt the far more wide ranging investigation of the cause of death which might be appropriate in civil proceedings of an adversarial nature. Nor could the understandable concerns of the notice parties be any justification for converting an inquest into a form of public inquiry designed to provide definitive answers to the issues which the notice parties wish to explore.

30. Mr. Finlay further submitted that the intention of the Oireachtas to confine the inquiry into the medical cause of death was further illustrated by the provisions of s.26 of the 1962 Act which expressly prohibited the coroner from compelling the attendance of a second registered medical practitioner save in the limited circumstances provided for in the section which clearly did not arise in this case.

31. In my judgment in Farrell -v- Attorney General , I cited with approval the following description by Lane LCJ in R -v - South London Coroner, Ex Parte Thompson [1982] 126 SJ 625 of the nature of an inquest:

32. Again, in that case, I referred to the public policy underlying the requirement for the holding of an inquest as they were explained in England in the report of the Broderick Committee, i.e.,

33. Ultimately, however, the issue for resolution in the High Court and again in this court is as to the proper construction to be given to the wording of s.30 of the 1962 Act, i.e.,

34. While this provision undoubtedly lays stress on the limited nature of the inquiry to be conducted at an inquest, the prohibition on any adjudication as to criminal or civil liability should not be construed in a manner which would unduly inhibit the inquiry. That would not be in accord with the public policy considerations relevant to the holding of an inquest to which I have referred. It is clear that the inquest may properly investigate and consider the surrounding circumstances of the death, whether or not the facts explored may, in another forum, ultimately be relevant to issues of civil or criminal liability. The intention of the Oireachtas that the inquest should not simply take the form of a formal endorsement by the coroner or a jury of the pathologist’s report on the post-mortem is also made clear by s.31 which, although prohibiting the inclusion in the verdict or any rider to it of any censure or exoneration of any person, goes on to provide in s.s. 2 that

35. Since it might appear, at first reading, that the decision of this court in Greene -v- McLoughlin supports a different construction, it is necessary to examine that decision more closely.

36. The deceased was found by his mother in a toilet where he had gone to clean a rifle while she was preparing a meal. She heard a noise and on entering the toilet found him lying against the wall bleeding from the forehead. At the subsequent inquest, the verdict of the jury was :

37. That verdict was challenged in proceedings by way of judicial review brought by a brother of the deceased on the ground that the coroner had allowed the jury to investigate or consider a question of criminal liability in breach of s.30 of the 1962 Act. (It should be noted that, at the time of the hearing in the High Court and this court, suicide was still a crime.) The challenge succeeded in the High Court and an appeal to this court was dismissed.

38. It was not in dispute that the coroner had told the jury that they could inter alia bring in a verdict that the death had been due to a discharge from a rifle in accordance with medical evidence “while balance of mind disturbed”. Not surprisingly, both the High Court and this court were satisfied that what was in effect a verdict of suicide could not, in the light of s.30 of the 1962 Act, be allowed to stand.

39. However, in the course of his judgment, with which Hamilton CJ and O’Flaherty J agreed, Blayney J said

40. The decision of the court in that case was entirely reconcilable with the view that it would have been possible in law for the jury to find that the deceased had died from a self-inflicted wound, without any determination as to whether it had been inflicted deliberately or accidentally. To the extent that the dictum cited suggests that the verdict of a coroner or a jury must be confined to the medical cause of death, I am satisfied that it rests on an unduly narrow construction of the 1962 Act and, in particular, s.30 thereof. It cannot have been the intention of the Oireachtas that, in the case of a road accident, for example, the verdict should be simply confined to a finding in accordance with the pathologist’s report and that the coroner or jury would be precluded from finding that the deceased had met his death while travelling in a motor car which collided with another vehicle.

41. The law in England was stated by Sir Thomas Bingham MR (as he then was) in R -v- H. M. Coroner for North Humberside and Scunthorpe, Ex Parte Jamieson as follows:

42. I am satisfied that those principles are also applicable to the construction of s.30 of the 1962 Act.

43. The Master of the Rolls, in that judgment, also commented that

44. I do not think that there is any significant distinction to be drawn, in this context, between the words used in our Act, “how... the death occurred” and the corresponding expression in England, “how .... the deceased came by his death”. In respect of each of the four questions to which the inquest is required to provide an answer, the inquiry to be conducted is an important but limited one.

45. In seeking to ascertain the intention of the Oireachtas, it can be on occasions helpful to look at the statute under consideration as a whole, rather than examining a particular provision in isolation. In ascertaining whether the intention of the Oireachtas in enacting s.30 of the 1962 Act was to permit the form of inquiry undertaken by the coroner in the present case, three other provisions of the Act would appear to be of some relevance. Before doing so, however, I should refer to the circumstances in which the Act envisages the holding of the inquest by the coroner with a jury.

46. Clearly, in the present case, the deceased did not meet his death in a “violent manner” or “suddenly and from unknown causes”. Nor did he die in a place or in circumstances which, under statutory provisions, required an inquest to be held. Accordingly, the coroner was not required to hold an inquest in this case unless the death occurred in “an unnatural manner”.

47. That last mentioned provision must be read in the light of s.18(1) which provides that

48. In the present case, there was no question of a medical certificate of the cause of death not being procurable : Dr. MacMathuna was satisfied to provide a death certificate to the effect that the death was caused by “aspiration pneumonia due to cerebral palsy”. That, of course, would not have been a “unnatural manner” of death within the meaning of s.17 and a question accordingly might arise as to the jurisdiction of the coroner to hold the inquest in the present case. Since, however, that was not a ground on which leave to apply for judicial review was granted, I express no concluded view on the matter and I would expressly reserve for another occasion the question as to whether, in circumstances such as arose in this case, the coroner was either obliged or empowered to hold an inquest. For the purposes of the present case, it is sufficient to say that in my view the language of s.17 and s.18(1), suggesting as it does that an inquest is envisaged as being held in relatively limited circumstances, does not, at the least, support the wide-ranging construction of the expression “how....the death occurred” advanced on behalf of the coroner and the notice parties in the present case.

49. The next provision of importance is s.26 which provides as follows:-

50. It had to be said that the wording of this section gives rise to some difficulty. Literally construed, it would appear to mean that the coroner is precluded from exercising the crucial power conferred on him of summoning witnesses where, for example, a person who witnessed a motor accident happened to be a doctor and a pathologist had already given evidence at the inquest as to the cause of death. It would seem absurd to attribute such an intention to the Oireachtas. Similarly construed, moreover, it would appear to render inadmissible the evidence of a second registered medical practitioner, where the pathologist had already given evidence, even though the former’s evidence was not directed to the strictly medical cause of death, but was solely concerned with whether particular acts or omissions on the part of the hospital or medical attendants had contributed to the death and whether circumstances existed which might render appropriate the making of a general recommendation by the coroner or the jury pursuant to s.31(2). It must be remembered, in this connection, that the calling of such medical evidence may be of particular importance in a case where the coroner is not a medically qualified person.

51. It may be that a purposive construction could be given to s.26(2) which would not require its being construed so as to exclude further medical evidence in such circumstances. But the language of s.s.(2) undoubtedly strongly suggests that the draughtsman envisaged that, where a registered medical practitioner such as a pathologist had given his/her opinion as to the cause of death in purely medical terms, a second doctor should only be called where a majority of the jury consider that the cause of the death, in that sense, has not been satisfactorily explained by the first doctor. Thus, if in the present case, the only medical evidence given had been that of Dr. MacMathuna and the coroner had instructed the jury that they were entitled to return a verdict in accordance with his evidence, the jury would no doubt have been entitled to requisition a second opinion.

52. Again, it is unnecessary, in my view, to express any concluded view as to the proper construction of this somewhat unhappily worded provision. It was argued on behalf of the coroner and the notice party that, since s.s.(2) did no more than restrict the exercise by the coroner of his power to summon witnesses, there would be nothing to prevent him from notifying a particular medical witness that he wished him or her to attend the inquest and then permitting him or her to give evidence. It would be somewhat surprising if, assuming the intention of the Oireachtas was expressly to preclude the calling of a second doctor to give evidence as to the medical cause of death, presumably with the view to the more economic and expeditious holding of an inquest, that legislative intention could be frustrated by the employment of such a device. It is sufficient to say that the language of s.25(2) is a further indication of the unlikelihood of Oireachtas having intended, by the language used in s.30, to permit the form of wide ranging inquiry undertaken by the coroner in the present case.

53. The third provision which gives some guidance as to the nature of the inquiry that takes place at an inquest is s.57 which requires certain fees and expenses including “the expenses payable to witnesses at inquests” to be prescribed by the Minister for Justice after consultation with the Minister for the Environment. S.58 then empowers the coroner to issue a certificate for the payment by the relevant local authority of the sums in question.

54. The fees and expenses are at present governed by the Coroners Act 1962 (Fees and Expenses) Regulations 1996 (SI 151 of 1996). They provide for the payment of fees to registered medical practitioners for their attendance at an inquest in a professional capacity ranging from £23.45 to £72.63 depending on the time involved. They also provide for the payment of expenses on the same basis as the subsistence allowance at the highest rate for civil servants. There is no provision for the payment of fees and expenses in respect of work of the nature undertaken by Dr. Butler at the request of the coroner in the present case.

55. The fees and expenses of holding an inquest must thus be borne by the rate-payers of a particular area and the amount payable is strictly controlled by the statutory provisions to which I have referred. The contrast could hardly be more glaring with the areas in which one would normally expect a wide ranging inquiry to take place into controversial scientific and medical topics. Where the issue is raised in civil proceedings of an adversarial nature, it is open to the parties from their own resources to deploy a vast range of scientific and medical evidence relevant to those issues. If it takes the form of a public inquiry by a tribunal into a matter of public importance, the Oireachtas can make available to the tribunal whatever monies it requires to pursue its inquiry. The extremely limited resources available, in comparison, to coroners holding inquests reflect the reality that the inquests they hold, although they serve the public interest in an area of great importance, are necessarily limited and confined in their nature.

56. Ultimately, this case depends on the construction of the expression “how...the death occurred” in s.30 of the 1962 Act and, specifically, whether it authorised the form of wide ranging inquiry upon which the coroner embarked. On one view, an unarguably correct medical certificate accompanied by a full description of the circumstances in which the person met his death will not necessarily provide a comprehensive answer to the question : “how did he/she die?” A death certificate may record, admittedly not in layman's language, that a person died of a heart attack, a stroke, cancer or some other disease. There may be many explanations as to how that person came to have the fatal condition : smoking, alcohol, lack of exercise, poor diet and many other factors may have played a role. A motor car accident, perhaps in the distant past, may ultimately be seen as having predisposed the victim to the condition to which he eventually succumbed. The possibility may arise that the person’s death was ultimately due to his or her exposure to industrial processes ranging historically from coal mining to nuclear power.

57. If a coroner’s inquest were to extend its inquiries beyond the circumstances, including the proximate medical cause of the death, in which the death occurred, it would become, in my view, an inquiry of a radically different nature and one which was not envisaged by the Oireachtas in enacting the 1962 Act. The holding of such an inquiry is not merely unwarranted, having regard to the restrictive terms in which s.30 is couched : it is wholly at odds with the general policy underlying the legislation, as reflected in the definition of the circumstances in which a coroner is obliged or entitled to hold an inquest, the restrictions on his powers to summon medical witnesses and the limited financial resources available to him in conducting the inquest.

58. Then there is the question of the time scale within which it was contemplated that an inquest would be held. Given that one of the public policy considerations underlying the holding of an inquest is the laying to rest of rumours and suspicion arising from an unexplained death, it is undesirable in the extreme that inquests should be adjourned for any longer period than is strictly necessary. Such adjournments inevitably occur in certain circumstances and are expressly required under s.25 of the 1962 Act where criminal proceedings are being considered or have been instituted. I have no doubt that, absent such circumstances, the legislature envisaged that the inquest would be held as expeditiously as possible. That has not happened in the present case.

59. I emphasised at the outset that an inquest is an essentially inquisitorial process in which there are no parties and no trial takes place. What is to happen in the present case if the notice parties at the resumption of the inquest express their dissatisfaction with the report of Dr. Butler and ask for a further adjournment so as to enable another independent expert commissioned by them to produce a further report? It must never be forgotten that in adversarial litigation, however protracted and cumbersome it may become, the issues between the parties are strictly defined by the pleadings. That is not so in inquisitorial procedures and it is a matter of public knowledge that, in the case of tribunals of inquiry, it has even proved difficult to confine the inquiries within reasonable limits by an insistence on strict adherence to the terms of reference prescribed by the Oireachtas. The inquiry undertaken by the coroner in the present case is governed by no pleadings and is not constrained by any terms of reference. In my view, that is a serious, although clearly unintended, distortion of the important function which, as a matter of history, the coroner’s inquest has discharged under our law and which consists in essence of an expeditious and economical inquiry into four limited but significant issues : the identity of the deceased and where, when and how his death occurred.

60. I would dismiss the appeal and affirm the order of the High Court.

61. I concur in the Order proposed by the learned Chief Justice. I do so on a narrow ground: I cannot see that the course of action followed by the coroner is consistent with Section 26 of the Coroner’s Act, 1962. Since this section, as I interpret it, constitutes a considerable restriction on the coroner’s powers in the conduct of inquests, I wish to set out my reasons in some little detail.

62. The office of coroner is of great antiquity. It is claimed by some authorities to predate the Norman conquest (See Hallsbury, Third Edition, Volume VIII). Blackstone (Sixth Edition, Volume I page 347) says that the office “is of equal antiquity with the Sheriff, and was ordained together with him to keep the peace, when the Earls gave up the wardship of the County”. Early medieval records have many references to the office of coroner and in particular to the grant by the Crown of the power to select a coroner to the citizens of various cities. The original jurisdiction of the office was wider than its present one and it still retains some traces of the old jurisdiction. As Keane J. (as he then was) said in Farrell v. Attorney General [1998] IR 203 at 223:-

63. The relevant jurisdiction of the coroner, however, relates to the holding of inquests into the death of certain deceased persons. The modern rationale for the holding of such inquests or inquiries is in my view correctly stated in an English authority cited in the judgment just quoted. This is the report of the Broderick Committee on Death Certificates and Coroners Inquests (Cmnd. 4810). This identified the aspect of the public interest which a coroner’s inquest should serve as:-

64. The next section confers a power to hold an inquest “where a coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable.......”.

65. In relation to the form of the inquest itself, Section 30 of the Act provides:-

66. This is followed by a prohibition on any verdict or rider of an inquest containing a censure or exoneration of any person. There then follows Section 31(2) which provides that:-

67. The role of the jury at an inquest has been the subject of some comment during the hearing of this appeal. Section 39 of the Act provides that, in general a coroner may hold an inquest with or without a jury, as he thinks proper. Section 40, however, sets out five circumstances in which a jury must be sworn. The fifth and most general of these is:-

68. From the above materials it is possible, in my view, to reach certain conclusions as to the intended extent of the coroner’s jurisdiction. Where an inquest is properly convened, he, and where a jury is involved, the jury, must establish the identity of the deceased and how when and where the death occurred. He or they are debarred from considering any question of civil or criminal liability, and cannot attach censure or exoneration to any person. That is not to say that their inquiry may not properly extend to topics which would also be considered by a civil or criminal court. He or they may make recommendations of a general character designed to prevent further fatalities. From the terms of Section 40(1)(e) it appears that these recommendations may, inter alia, address circumstances which might be prejudicial to the health or safety of the public or any section of the public.

69. The construction of this phrase in Section 30 of the Act was the subject of considerable argument on the hearing of this appeal. Undoubtedly the most restrictive interpretation is to be found in the judgment of this Court in Greene v. McLoughlin ((unreported, judgment delivered 26th January, 1995). In that case Blayney J. said:-

70. It was submitted on behalf of the Appellants in this case that the approach just cited leads inevitably to the conclusion that a coroner or jury would be confined merely to admitting the pathologist’s report and adopting it as their verdict. I agree with this submission. I believe that this extremely narrow construction of the phrase quoted from Section 30 of the 1962 Act would reduce the inquest to a mere rubber stamp. Accordingly, I agree with the judgment of the learned Chief Justice, first that the passage cited is obiter and secondly that it rests on an unduly narrow construction of Section 30.

71. It is common knowledge that in very many cases the proximate cause of death is itself secondary to some other condition or process, whether medical or external. To confine an inquiry into “how..... the death occurred” to the ascertainment of the immediate or proximate cause would often be utterly uninformative. Certainly, this exercise would in very many cases fail to meet any of the purposes of a coroner’s inquest, identified above. It would not be acceptable, for instance to state merely the death was caused by cardiac arrest without distinguishing whether the arrest in itself was induced by some process of disease, or by external trauma.

72. On the other hand, the formula “how..... the death occurred” in my opinion excludes matters not causally related to the process leading to death. In R v. Northumberside Coroner, ex parte Janieson [1995] QB 1, it was held that the word “how” in a cognate but not identical phrase in the relevant English statute, meant “by what means” and not “in what broad circumstances” death occurred.

73. The case just cited, like other English authorities referred to in argument, were cases where the actual cause of death was clear but it was desired that the coroner’s inquest consider the question of want of care allowing, in the case mentioned, a person to commit suicide while in custody. This topic does not appear to me to relate to the manner of death, but rather to the broad circumstances in which death occurred.

74. These cases do not appear to me to be similar to the present one. The question of whether the three in one vaccine played any causal role in the death seems, in principle, to be within the meaning of the term “how.... the death occurred” and to be a question of a medical nature.

75. Counsel on behalf of the Notice Parties, the parents of the deceased, submitted that if he had died within a short time of receiving the three in one injection there could be no objection to the coroner inquiring into whether or not the injection had any role in the condition which led to his death. I agree with this submission and I do not consider that lapse of time places a possible causative factor outside the remit of the coroner, though it may make the establishment of causation more difficult. Counsel for the coroner submitted, convincingly in my view, that an inquest into the death of a person who died following contracting of a blood disorder would not be precluded from examining the circumstances of a transfusion had by the deceased, even if it occurred many years earlier.

76. Accordingly I do not consider that the facts that the three in one injection was administered to this deceased in his extreme infancy was in itself a factor which would preclude this examination at the inquest.

77. Accordingly, I consider that the issue of whether the death was caused wholly or in part by the administration of the three in one pertussis vaccine is within the possible scope of an inquest held pursuant to the Act of 1962. The question remains, however, of whether the steps taken by the course of his inquiries and in particular the commissioning of a further report and the calling of a further medical practitioner to give evidence are permissible having regard to the terms of Section 26 of the Act.

78. It is agreed that neither of the two exceptions which then follow apply in the present case.

79. The legislative antecedents of Section 26 are not without interest. I can trace no restriction on the power of a coroner to call any number of medical witnesses until the year 1836. But clearly coroners encountered some difficulty in securing the attendance of professional witnesses when it was not possible to remunerate them for their time and effort. By 10 Geo.4 IV Cap. XXX v. II [1829] the Coroners (Ireland) Act Section 3 provided:-

80. That provision does not appear to me to limit the number of witnesses who might be so remunerated, though it will be observed that they could not receive an order for payment unless they had been summonsed.

81. Seven years later, by 6&7 Wm IV Cap LXX IX ( “An Act to provide for the attendance and remuneration of medical witnesses at coroners inquests ”) a limitation on numbers was first imposed. This is an Act remarkable for its convoluted syntax but in so far as is relevant it provides that any doctor who is in attendance on the deceased on his last illness could be summoned and:-

82. It was then provided that the refusal of a coroner to comply with this request was a misdemeanour.

83. Unlike the 1829 Act, which applied to Ireland only, the later Act applied to the whole of the United Kingdom apart from Scotland. Both Acts were repealed by the Coroners Act, 1962.

84. From this history it appears that the power to remunerate the medical witnesses was conferred because of the difficulty of procuring their attendance without such remuneration. This occurred in 1829. Seven years later the coroners power to summon a medical witness seems to have been confined to one only, unless perhaps there was a question of medical negligence. The power of the jury, by a majority, to require the calling of additional medical evidence was conferred at the same time, and was not restricted to a single witness.

85. It is clear from the contents of the 1836 Act that the question of whether death was occasioned by negligent treatment was specifically envisaged as a matter which the jury might consider. It also seems to me clear that the jury’s power to summon additional medical witnesses either as first conferred, or as altered by the Act of 1962, was and is likely to be redundant unless the jury are informed of that power.

86. It is also clear from the history of the present inquest that the restriction contained in Section 26 was not observed by the coroner, presumably because it was not present to his mind. I do not believe that this inquest is unique in that respect.

87. In the course of the present inquest, the coroner and jury heard the evidence of Dr. Padraic MacMathuna, Professor Neil O’Doherty, Dr. Barbara Stokes, Professor Maurice Tempany as well as a Dr. Lane and a Dr. Cronin. It would appear that the latter two gave evidence in relation to records only. Three further reports from Professor Behan, Dr. John Wilson and Professor John Stephenson were submitted to the coroner: it appears that all these persons are medical practitioners. According to the coroner’s affidavit, he felt that there had been a conflict of expert opinion and formed the view that an independent medical opinion was required to assist the jury in their deliberations. He identified Dr. Karina Butler as a suitable person to supply this evidence and at his invitation she appears to have compiled a report.

88. I have considered the possibility that the prohibition contained in sub-section (2) of Section 26 extends merely to calling additional medical practitioners by summons i.e. that it does not apply to hearing the evidence of a practitioner who attends voluntarily. However, for the reasons given in the judgment of the learned Chief Justice I do not consider that it would be legitimate so to construe the section. The intention of the legislature appears to have been to place a significant restriction on the power of the coroner to require the medical evidence of a second practitioner and apparently to exclude the summoning of a third or further such person. This restriction on the power of the coroner himself seems inconsistent, on any purposive construction, with the existence of an untrammelled power in persons without any official standing to call as many medical witnesses as they can induce to attend without summons, whether by payment or otherwise.

89. Since this appears to be the effect of the section ,it does not appear possible for the coroner further to pursue his inquiries into whether the three in one injection caused or contributed to the death in this case. It appears to me an anomalous result that a restriction of this kind is placed on an inquiry into “how..... the death occurred” . The coroner has deposed:-

90. He has also deposed, having summarised the evidence of the mother that:-

91. He has also, in the passage quoted above, deposed that he considers that further medical evidence is “required to assist the jury in their deliberations” .

92. It is therefore with some regret that I conclude that he is precluded from doing so by the terms of Section 26.

93. It might be thought that Section 26 evidences a general intention on the part of the legislature to limit, in the interests of economy or otherwise, the amount of evidence that can be given. But this seems inconsistent with the power to make recommendations of a general kind and with the necessity to summon a jury if “the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public”.

94. In his judgement in this case the learned trial judge referred to the jury’s power to make general recommendations and added:-

95. In my opinion this apprehension is an inappropriate one both in law and on the basis of practical experience.

96. Firstly, the scheme of a Coroner’s Act is clearly one which envisages the consideration by a jury of circumstances of possible prejudice to the health or safety to the public or any section thereof. That such circumstances can extend to medical misadventure is illustrated by the terms of Section 18(4) which envisage the reporting of a death “in such circumstances as may require investigation (including death as a result of the administration of an anaesthetic.....)”. The acknowledged general purposes of a coroner’s inquest, set out above, tend to emphasise, inter alia, the role of an inquest in allaying public disquiet and drawing attention to circumstances which, if unremedied, might lead to further deaths, as well as to the advancement of public knowledge.

97. Secondly, it does not seem to me unreasonable that a jury should be involved in this exercise. Especially in a time when decisions in many areas are taken by professional and administrative elites whose ability to communicate meaningfully with the general public is sometimes questionable, the basis on which the Oireachtas have elected to involve a jury in matters such as those under discussion in this case, seems both clear and justifiable. Moreover, there is nothing in the history of the discharge by juries of the duties assigned to them to suggest that there is any basis for a genuine apprehension that a jury would proceed on a basis not warranted by the evidence. The apprehension itself, in my view, is wholly unwarranted by evidence or experience.

98. S26 is in my view, in contemporary conditions, a serious obstacle to the proper discharge of the statutory duty of a coroner in the more complex type of inquest, whether he or she is sitting alone or with a jury. If a coroner feels that the question of “how ........the death occurred” cannot be answered without further evidence, it seems remarkable that he cannot obtain it.

99. I conclude that the vires of the coroner do not extend to the reception of the evidence of Dr. Butler or any other medical practitioner with a view to considering whether the three in one injection caused or contributed to the death of the deceased. On this narrow ground I would dismiss the appeal.