IESC 96 · Supreme Court

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

McGuinness J.

Hardiman J.

9 & 55/00

BETWEEN

THE EASTERN HEALTH BOARD

APPLICANT/RESPONDENT

AND

BRIAN FARRELL CORONER FOR THE CITY OF DUBLIN

RESPONDENT/APPELLANT

AND

BY ORDER VERA DUFFY AND KEVIN DUFFY

NOTICE PARTIES

JUDGMENT delivered the 27th day of November, 2001 by Keane C.J.

Introduction.

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

"1. A declaration that the conduct of the inquest into the death of Alan Duffy (deceased 31/12/1995) by the respondent

insofar as it purports to examine or determine the issue of whether his death was caused wholly or in part by the

administering of the 3-in-1 pertussis vaccine in 1973 is ultra vires the Coroners Act 1962

2. A declaration that it is ultra vires the said Act of 1962 to adjourn the said hearing for a period of sixteen months in

order to conduct a medical investigation into the linkage between the pertussis vaccine and encephalopathy.”

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

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.

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.

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.

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.

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.

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

“Bilateral staphylococcal pneumonia with associated septicaemia due to aspiration.”

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.

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.

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.

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.

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.

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.

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.

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:-

“Thus, in over sixty years since the first reports of possible encephalopathy by Madsen in 1933, no consistent, unique,

clinical entity recognisable as pertussis vaccine encephalopathy has emerged. No universally accepted, reliable animal

model of pertussis encephalopathy has been established, and no child has been proven to have permanent neurological

damage caused by pertussis vaccine. Neither has the possibility that such events might very rarely occur been

conclusively excluded”.

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:-

“If it is not unlawful to resume this inquest with the same jury after such lengthy adjournment, we believe it should be

done solely for the purpose of summarising Dr. Butler’s findings and inviting a verdict consistent with the evidence,

namely that Alan Duffy died as a result of pneumonia. In view of the fact that this case is being adjourned to a date in

April where three days have been set aside, we are greatly concerned that the matter will be reopened and all the

issues revisited in circumstances where it is wholly inappropriate and ultra vires the 1962 Act to do so.”

“We therefore would be obliged if you would confirm by return within 7 days if it is your intention to recall the jury solely

for the purpose outlined above. We feel we should inform you that unless the above course is taken the Eastern Health

Board will be left with no alternative but to apply to the High Court by way of judicial review proceedings to seek such

orders and directions as the court may deem appropriate in the circumstances.”

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

“The inquest into the death of Alan Duffy will resume on Monday April 19th at 10.30 a.m. I have considered the

submissions of counsel on 9th February when the inquest was mentioned. The evidence already given will be recounted

in detail by the coroner and the said witnesses will be present in person to answer any further questions that might

arise. I also propose to call Dr. P. J. Corcy and Dr. Karina Butler who will be requested to give a summary of her report.

I will further mention the inquest on Monday 29th March at 2.00 p.m.”.

[Dr. Corcy was the obstetrician who attended the first notice party at the time of the birth of the deceased].

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

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.

The High Court Judgment.

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.

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:

“I think that it would be unwise to set down any hard and fast rule but in each case the coroner should be investigating

what is the real and actual cause of the death. This death, it appears to me, was caused by pneumonia. Any

conceivable link with the 3-in-1 objection is too nebulous and indirect to make it appropriate for an investigation by the

coroner. The very fact that the coroner ended up having to commission an independent report is somewhat indicative of

the impracticality of such an inquest and I do not believe that such an inquest was intended by the wording of s.30 of

[the 1962 Act].”

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.

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.

Submissions of the Parties.

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.

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.

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.

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.

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.

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.

The Applicable Law.

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:

“It should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The

procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be

forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no

trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal

trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring which ever

metaphor one choose to use”.

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.,

"I. To determine the medical cause of death;

II. To allay rumours or suspicion;

III. To draw attention to the existence of circumstances which, if unremedied, might lead to further deaths;

IV. To advance medical knowledge;

V. To preserve the legal interests of the deceased person’s family, heirs or other interested parties.”

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.,

“Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest

shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how,

when, and where the death occurred”.

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

“notwithstanding anything contained in s.s. (1) of this section, recommendations of a general character designed to

prevent further fatalities may be appended to the verdict at any inquest.”

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.

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 :

“Death was due to discharge of rifle in accordance with medical evidence while balance of his mind was disturbed.”

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.

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.

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

“What has to be considered here is the meaning to be given to the phrase ‘how death occurred’. Apart from ascertaining

where and when it occurred, the inquest had to be confined to inquiring into this. It seems to me that how death occurs

in any particular case is a matter to be determined in the light of medical science. It is a medical question for a doctor,

to be answered, if necessary, by performing a post-mortem examination. In the present case the answer to the

question of how death occurred was to be found in the evidence of the consultant pathologist which was that it was due

to shock, due to extensive destruction of the brain and bones of the skull due to bullet wound to the forehead.”

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.

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:

“... it may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death

must prevail over the prohibition in Rule 42 [against a determination of civil or criminal liability]. But the scope for

conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts

bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the

part of a named person nor any question of civil liability....”

“There can be no objection to a verdict which incorporates a brief, neutral, factual statement : ‘the deceased was

drowned when his sailing dinghy capsized in heavy seas’, ‘the deceased was killed when his car was run down by an

express train on a level crossing’, ‘the deceased died from crush injuries sustained when gates were opened at

Hillsborough Stadium.’ But such a verdict must be factual, expressing no judgment or opinion, and it is not the jury’s

function to prepare detailed factual statements.”

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

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

“It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far reaching

issues, but ‘how the deceased came by his death’, a more limited question directed to the means by which the deceased

came to his death.”

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.

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.

Section 39 provides that a coroner may hold any inquest either, as he thinks proper, with or without a jury. S.40(1) requires the

inquest to be held with a jury where the coroner becomes of the opinion that the death of the deceased came within one of a

number of categories set out in the subsection. Thus, the inquest must be held with a jury if he is of the opinion that

“(e).... 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.”

Sections 17 and 18 set out the general duties and powers of the coroner in relation to the holding of an inquest. Section 17

provides that

“Subject to the provisions of this Act, where a coroner is informed that the body of a deceased person is lying within his

district, it shall be the duty of the coroner to hold an inquest in relation to the death of that person if he is of opinion

that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place

or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest

should be held.”

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”.

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

“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, he may inquire into the circumstances of the death of that person

and, if he is unable to ascertain the cause of death, may, if he so thinks proper, hold an inquest in relation to the

death”.

[Emphasis supplied]

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.

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

"1. A coroner may, at any time before the conclusion of an inquest held by him, cause a summons in the prescribed

form to attend and give evidence at the inquest to be served on any person (including in particular any registered

medical practitioner) whose evidence would, in the opinion of the coroner, be of assistance at the inquest.

2. A coroner shall not exercise, in relation to the attendance at an inquest of a second registered medical practitioner,

the power conferred on him by s.s.(1) of the section unless -

(a) A majority of the jurors at the inquest, it having appeared to them that the cause of death has not been

satisfactorily explained by the medical practitioner giving evidence thereof at the inquest, have by a requisition in

writing called upon the coroner to cause a summons under that subsection to be served on another registered

medical practitioner, or

(b) That practitioner had assisted at a post-mortem examination upon the person in relation to whose death the

inquest is being held”.

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.

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.

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.

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.

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.

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.

Conclusions.

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.

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.

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.

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.

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