Appellant/Plaintiff v First Respondent/First Defendant Second Respondent/Second Defendant Intervener

1 On 30 December 2008, Mr Gary Cook was observed to collapse, whilst working in the bucket of an elevated work platform (or cherry picker). Mr Cook was taken to the Wangaratta Hospital, where he passed away on 2 January 2009. At the time he collapsed, the deceased was working in the vicinity of live electrical cables.

2 On 31 May 2010, Bryant M commenced an inquest into the death of the deceased. On 3 June 2010, having heard evidence from a number of witnesses, his Honour delivered a ruling that the deceased died as a result of coming into contact with live wires.[1] His Honour then determined to go on with the inquest and hear further evidence.

3 The deceased was employed by Thales Australia Limited at the time of his death. Following the delivery of his Honour's ruling, and the statement by his Honour that he intended to go on with the inquest, Thales Australia instituted two proceedings:

(a) an appeal, pursuant to s 83(2) of the Coroners Act 2008, against the finding that the deceased died as a result of an electrocution ("the appeal proceeding"); and

(b) a proceeding pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005, seeking relief in the nature of certiorari to quash the finding that the deceased died as a result of an electrocution, and seeking relief in the nature of prohibition preventing the Coroners Court from continuing with any further hearing of the inquest into the death of the deceased ("the Order 56 proceeding").

4 The Coroners Court of Victoria is the first respondent in the appeal proceeding and the first defendant in the Order 56 proceeding. Mrs Teena Cook is the wife of the deceased, the second respondent in the appeal proceeding and the second defendant in the Order 56 proceeding.

5 Whilst the Coroners Court initially took part in both proceedings, after giving a notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission under s 35 of the Charter of Human Rights and Responsibilities, the Coroners Court ultimately decided to abide the decision of the Court in both proceedings.[2] The Attorney-General intervened pursuant to s 34 of the Charter.

6 The appeal proceeding and the Order 56 proceeding were heard together. Consistently with its stated intention to abide the decision of the Court, the Coroners Court took no part in the hearing of the proceedings. The Attorney-General acted as a contradictor and resisted the granting of the relief sought by Thales. Mrs Cook largely adopted the submissions made by the Attorney-General.

7 Whilst there are a number of subsidiary issues in these proceedings, the central issues were:

(a) first, whether it was open to the Coroner to conclude that the deceased was electrocuted; and

(b) secondly, whether it was open for the Coroner to go on with the inquest in circumstances where, having concluded that the deceased was electrocuted, it was submitted by the plaintiff that the functions of the Coroner were exhausted.

8 After an initial discussion between the Coroner and those who appeared at the inquest, counsel assisting the Coroner opened the circumstances of the deceased's death in the following terms:

"At about 2.00pm the deceased was working in an elevated working platform, removing earthing sticks from high voltage cables directly above low voltage cables. The power had been isolated on those high voltage cables, and removing the earthing cables [sticks] is part of the process to bring the power back on line, as I understand it.

Whilst removing the earthing cables/sticks, the deceased collapsed into the bucket of the elevated working platform, unconscious. As no response was obtained from his colleagues, the platform was lowered. The deceased was found to be unconscious with his jaw locked by work colleagues. Witness Kreeck stating, 'We realised he sustained a shock'. The work colleagues are first-aid trained, so CPR began and continued until ambulance and later a local doctor arrived to care for the deceased. The deceased was conveyed to the Wangaratta Base Hospital before he passed away on 2 January 2009.

The autopsy report indicates no objective evidence of an electrocution, however it does not rule out the possibility. The cause of death is unascertained. It appears from the report that there was no illness or disease which contributed to the death, and no physical evidence of electrocution.

The issue being, was the deceased electrocuted? It appears all parties, work colleagues, hospital staff and family considered his death an electrocution until becoming aware of the autopsy report. Witness Kreeck and Mulquiney's statements indicate the deceased's jaw was locked, indicating muscle contraction; which I understand is consistent with contact from electrical current.

..."[3]

9 After the matter was opened, there was discussion between the Coroner and counsel for Thales. Counsel for Thales said:

"If there's an electrocution - and that needs to be determined before anything flows, sir - if there's an electrocution, then the next step becomes a live one of course. But if there's not an electrocution, if there's no evidence upon which Your Honour can reach that conclusion, then that really is where the matter finishes, save and except for what Your Honour wants to take from the medical records of Wangaratta Hospital."[4]

10 The first witness to give evidence at the inquest was Sarah Parsons, a pathologist. Dr Parsons performed an autopsy on the body of the deceased on 8 January 2009. Her finding was that the cause of death was "unascertained". In her autopsy report, she said:

"The cause of death following a full autopsy and ancillary tests in this 53 year old man is unascertained. There is no evidence at the autopsy of an entry or exit which one would expect to see in an electrocution however these are not always seen and there is a possibility that remains that he was electrocuted however there is no objective evidence of this."

11 The next witness was Senior Constable Nolan of the New South Wales Police. He gave evidence of inquiries he made, including inquiries with the deceased's fellow employees Mr Mulquiney and Mr Kreeck. The versions he obtained from Mr Mulquiney and Mr Kreeck were that "The victim was removing earth lines from the main power source (the victim was moving earth line), he has contact with the cherry picker and the lower line, being 250 volts. Upon this connection the victim has collapsed inside the cherry picker."[5]

12 Mr Mark Mulquiney then gave evidence. On the day of the incident, he was an acting team leader employed by Thales. Mr Mulquiney gave evidence that he believed that whilst the deceased was in the process of removing the last earth off the high voltage lines, the deceased "let out - it sounded like he said 'Shit', I don't know what he actually - actually happened. I initially looked to see where it was and he just crumpled into the bucket'".[6] Mr Mulquiney said he was positioned probably seven to eight metres below and to the south. Additionally, he gave evidence that he did not see any arcing or sparks or hear any other noise. However, he also gave evidence that the deceased's jaw was locked - describing it as "clenched tight - tight shut".[7]

13 Following Mr Mulquiney's evidence, the Coroner raised the question of whether any inability to determine the cause of death might preclude him from making a comment or recommendation. During this exchange, the following was said:

"THE CORONER: Could I just raise for your consideration overnight - and I must say it's not something that I have turned my mind to, gentlemen, until hearing the evidence today. And of course consistent with the statement that I made at the outset of this Coronial inquest, we are now governed by the new Coroners Act 2008.

The question that I pose is that if I am unable to ascertain hypothetically the cause of death, does that preclude me, or in any way prohibit me from making a comment or a recommendation? You say it does?

COUNSEL FOR THALES: I say it does.

THE CORONER: All right. Perhaps we'll hear some argument about that at the end of the inquest, as to whether or not - if I'm not able to ascertain a cause of death, whether I am still entitled in the interests of justice, and having regard to the interests of public safety and the like, to make comments and/or recommendations. I'll leave that question for you to consider.

COUNSEL FOR THALES: I'd like to say something, Your Honour, about that. I say the question needs to be asked a little sooner than the end of the inquest. It probably needs to be asked after Your Honour has heard the eye witness accounts, and based on the medical evidence as it stands - whether there's any forensic basis to continue.

Because the purpose of the inquest is not the purpose of inquiry for the purpose of making a comment. There's nothing in the new Act that excludes Harmsworth. The purpose of an inquest is for those powers and

obligations - - -".[8]

The exchange between his Honour and counsel for Thales continued, with counsel for Thales maintaining that if it could not be established that the deceased was electrocuted, then further inquiry would be beyond power or jurisdiction.

14 The next witness called was Mr Brandon Kreeck, an electrician and instrumentation tradesman employed by Thales. He gave evidence that he could see the deceased above the lid of the bucket. He could also see an earthing stick. He did not see the stick hit any of the low voltage wires. The matter was clarified by a question from the Coroner, and Mr Kreeck agreed that he saw the deceased with a stick: he did not see the stick touch the wires, but it could have touched the wires.[9] Mr Kreeck also gave evidence of what he saw when looking up at the bucket:

"I was standing there with Mark and I said something to Mark, I can't even remember what I said to him, and then I was looking up at the bucket and Gary had had two sticks off, two earth sticks taken off the south two, the south one and the middle one, he's taken them off, and he just unscrewed the north line, the earth stick to the north line, and he was bringing it down and what I seen was - it was like he - it was like it slipped, like slipped in his hand and then sort of a - you know, like he went to catch it and then he sort of slid down into the bucket and I said to Mark at that stage, I said, 'I think he might have knocked himself out with the stick', and then sort of we yelled out to him to get a response and there was no response. ...".[10]

15 Ultimately, Mr Kreeck gave evidence that he did not see any movement in any electrical line,[11] nor any occasion when the deceased's hand was near the metal clamp of an earthing stick.[12]

16 Following the evidence of Mr Kreeck, there was a further exchange between counsel for Thales and the Coroner. The Coroner again made reference to his power to make findings with respect to issues of public safety. In response, counsel for Thales said:

"No that is the fundamental question, whether it's an electrocution or a heart attack. That's an issue that's got to be resolved before any recommendation or comment about that matter is made by Your Honour. It is the foundation stage of Your Honour's jurisdiction."[13]

17 There was then a further exchange between the Coroner and counsel for Thales, culminating in the following exchange:

"COUNSEL FOR THALES: ... Clearly, with the benefit of hindsight, whether this was an electrocution or not, Thales takes the position that goes well beyond the industry practice and standard. That's not to be taken as confirming that it was an electrocution or otherwise, sir.

THE CORONER: I'm not suggesting that.

COUNSEL FOR THALES: I'm grateful to hear that, Your Honour.

THE CORONER: I can't arrive at that conclusion given the state of the current evidence.

COUNSEL FOR THALES: Your Honour, with respect - - -

THE CORONER: I think it's important for this witness to be given an opportunity to tell his story ...".[14]

18 It is unclear precisely what the Coroner was referring to when he said, "I can't arrive at that conclusion given the state of the current evidence". On one view, it was the conclusion of whether or not the deceased was electrocuted. On another view, it may be that the Coroner was referring to an inability to find that Thales took a position that went beyond industry practice and standard - there being little (if any) evidence on that issue at that time. Whatever view one takes, the Coroner's statement that he could not arrive at a particular conclusion was obviously not a considered and final conclusion from which there could be no departure or reconsideration.

19 Following this exchange, it would appear that Mr Kreeck was allowed to address Mrs Cook.[15] Mr Kreeck took the opportunity to say: "Things have changed since it happened, new procedures have come out and we're not allowed to work in the vicinity of live stuff so - - -".[16]

20 The next witness to give evidence was Mr John Walker. Mr Walker was employed as a production employee by Thales. At the time of the incident, he was standing approximately 70 metres from the cherry picker. He said there were trees in the area, but that he could clearly see the deceased and the cherry picker. His statement of 24 May 2010 was tendered as a true and accurate account of what he heard and saw on the day.[17] The statement contained the following:

"I saw Gary [the deceased] raise himself in the cherry picker. He was using the basket controls to do this. When he was in position, Gary was standing up in the bucket, between the four bottom wires of the power lines. He had ducked down and moved to the right, under the power lines to get into position.

...

Gary was partly obscured from my view by a small branch of a tree at this stage but I could still clearly see the cherry picker itself. There was a delay of some time. I'm not sure of how long but it was at least a minute. Then Gary appeared to duck down again. I thought he was just ducking down as he had before, in reverse of his earlier actions to get under the wires. Gary didn't get back up.

...

I did not hear anything like a bang or loud noise when Gary went down in the bucket."

21 Following Mr Walker, it was then proposed by counsel assisting to call a Mr Quinn. However, counsel for Thales submitted that Mr Quinn was not a witness to any of the events. Following this submission, the next witness was Mr Paul Stevens. Mr Stevens was employed by Comcare. He described himself as having an advanced diploma in occupational health and safety and an investigative background of approximately 23 years. Mr Stevens provided a detailed report, which was tendered in evidence. The report contained the following:

"171. It is noted that the Coroners Court of Victoria, autopsy report into the death of Mr Cook, has recorded the cause of death of Mr Cook to be 'unascertained'.

172. Notwithstanding the report of the VIFM which found that, 'The cause of death following a full autopsy and ancillary tests in this 53 year old man is unascertained. There is no evidence at the autopsy of an entry or exit which one would expect to see in an electrocution however these are not always seen and there is a possibility that remains that he was electrocuted however there is no objective evidence of this' (sic).

173. I find it is not unreasonable given the circumstances and the aforementioned details contained within the VIFM report, that Mr Cook initially sustained a serious personal injury whilst at work by inadvertently and unintentionally coming into contact with the low voltage power lines at the Thales Mulwala site, and whilst conducting an undertaking of the employer, which ultimately became a fatality."

22 In cross-examination, Mr Stevens gave evidence that he had had experience before of there being no signs of entry or exit points for electricity, where electrocution has been the cause of injury.[18] However, he also conceded that his inspection of the interior of the cherry picker found nothing remarkable - no burns, no evidence of flashing and no evidence of any contact between the cherry picker and any power source. Following Mr Stevens' evidence, there was then discussion about calling Dr Collins (a consultant forensic pathologist), Mr Quinn and a Mr Gehrig. Counsel for Thales says that he anticipated that Dr Collins would be called first because (as he put it) if the Coroner accepted his submissions, there would be no basis for Mr Quinn or Mr Gehrig to give evidence. This provoked further discussion between the Coroner and counsel for Thales, culminating in the following submission made by counsel for Thales:

"I actually say it [the power to comment and make recommendations] is more limited than that, it's got to be connected with the death. The legislation at s 67(3) and s 72(2) did not say comment upon a matter investigated pursuant to s 67(1). What it said was connected with the death and if Your Honour doesn't find or can't find that there was an electrocution then it's not a matter connected with the death.

If Your Honour does find it's an electrocution and it's been necessary for Your Honour to look at those systems of work to make that finding, and we say it isn't, then at that point Your Honour is empowered to make comment.

But if Your Honour doesn't find that it's an electrocution and we say Your Honour can't on the evidence and never could, then any power to comment or to make a recommendation falls away."[19]

23 A little further on in the discussion, the following occurred:

"THE CORONER: It'd be different though if I accepted your argument and said, 'Right, I am satisfied on the balance of probabilities that he suffered a heart attack as a positive finding of fact', end of story.

...

COUNSEL FOR THALES: Then in my submission it's end of story because Your Honour must make a finding as to an electrocution before all of the issues with respect to the electrical codes of practice or conduct are brought into being become operational because if Your Honour doesn't do that we don't know and we can never know whether or not the recommendation made will reduce the risk of deaths of this kind because if this was some other mechanism of death, anything Your Honour says about codes of practice, the systems of work that happened on that day have no connection with what happened to Mr Cook."[20]

24 Finally, on 3 June 2010, Dr Collins was called. Dr Collins had been retained by lawyers acting on behalf of Thales. During the course of his evidence, Dr Collins' report of 1 June 2010 was tendered. In that report, Dr Collins expressed the following opinion:

"In summary, on the information currently available, I am of the opinion there is no hard evidence to support the view that the late Mr Cook experienced the passage of electricity through his body, causing him to suddenly collapse in the basket of the ... cherry picker. Whereas, there are identifiable pathological abnormalities in his cardiovascular system, which have the recognised potential of producing sudden and unexpected collapse, particularly during physical stress."

25 Dr Collins was asked if he had to choose between electrocution or cardiac arrhythmia through natural causes, which he would choose. He said:

"I think I have to choose it being caused by natural causes because we do have some solid pathological material present in the heart or changes which can cause sudden unexpected collapse for a variety of reasons. Obviously there's some circumstantial evidence surrounding this death which may infer electrocution but I as a pathologist and neither has Dr Parsons seen anything that we can specifically associate with electrocution either at the macroscopic level or the microscopic level or at the biochemical level. There are certainly some things that are consistent with it but not where a pathologist would be happy to say in the cause of death on an autopsy report electrocution as some of us have done in the past on different evidence."[21]

26 As to the observation that the deceased's jaw had become clenched, Dr Collins said that muscle spasm was a well recognised condition in electrocution, but it was also consistent with problems associated with cerebral hypoxia (lack of oxygen to the brain).[22]

27 As to treatment of the deceased for an elevated core temperature, Dr Collins said that this was not diagnostic for electrocution, but it was "some soft evidence for electrocution".[23] As to the lack of observation of burn marks in electrocution cases, Dr Collins conceded that this was certainly well documented in text books and articles.[24]

28 Whilst Dr Collins expressed a preference for electrocution if "asked to choose between an electrocution or a cardiac arrhythmia through natural causes" during questioning, his report was a little more equivocal. In his report, Dr Collins:

(a) agreed with the cause of death as stated in the autopsy report as "unascertained";

(b) noted findings of recent myocardial infarction, which he said were a consequence "possibly of initial cardiac arrhythmia/prolonged resuscitation/electrocution";

(c) noted the serial rise and subsequent decline in serum Troponin I levels, which he said were consistent with myocardial infarction or, possibly, myocardial damage consequent upon fibre disruption due to electrocution; and

(d) stated that it was well recognised that individuals who suffer from cardiac abnormalities such as cardiomegaly and ischaemic heart disease have an increased risk of abnormal heart rhythms (cardiac arrhythmias), such as ventricular fibrillation, which may result in sudden and unexpected collapse.

29 Following the evidence of Dr Collins, there was further discussion between the Coroner and counsel. During this discussion, counsel for Thales submitted (consistently with his earlier submissions) that there was no basis for the Coroner hearing evidence from Mr Quinn or Mr Gehrig. It was submitted that the Coroner should not hear this evidence because he "could not possibly conclude on any standard of evidence whatsoever that this was an electrocution".[25] The Coroner then allowed submissions to be made on this issue. On 3 June 2010, following these submissions, the Coroner delivered what was described as a ruling.

"There is I think as has been identified by the parties in this inquest a threshold issue as to whether or not I as Coroner in charge of this inquest can be satisfied on the balance of probabilities of the existence of a relevant fact, namely that Gary Cook was electrocuted or whether or not I cannot be satisfied on the balance of probabilities that he did not suffer a cardiac arrhythmia as a result of natural causes."[26]

31 The Coroner then referred to Briginshaw v Briginshaw,[27] and accepted that it had application in this case. His Honour went on to say:

"The standard of proof is not met if the circumstances appearing in the evidence do not give rise to a reasonable and definite inference but at most give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture."[28]

32 The Coroner then summarised some of Thales' arguments as to why he could not be satisfied on the balance of probabilities that the deceased was electrocuted. These included:

(a) there was no direct evidence, or no eye witness evidence, of the deceased coming into physical contact with the power lines;

(b) none of the eye witnesses saw any of the earth sticks physically coming into contact with the wires;

(c) even if part of an earth stick came into contact with the wires, it would not have acted as a conductor - and there was no evidence that Mr Cook was holding the clamp section of the earth sticks (the uninsulated part);

(d) there is no evidence that the low voltage lines moved;

(e) there is no evidence that wind or any other atmospheric conditions played a part in the deceased accidentally coming into contact with the low voltage lines;

(f) the cherry picker was inspected and found to be in working order (and therefore could not have acted as a conductor);

(g) none of the witnesses identified any arcing or flashing or noise and smell which might ordinarily be associated with contact with low voltage wires;

(h) there were no entry or exit points on the body of the deceased; and

(i) on Dr Collins' evidence, the deceased's death was more consistent with cardiac arrhythmia, and that his collapse was sudden and due to asymptomatic or silent heart disease.

33 The Coroner then noted that the submission of Thales was "to a large extent based on an assertion that the sudden and unexpected collapse of Mr Cook was coincident with the work he was undergoing in the immediate vicinity of low voltage power lines".[29] His Honour also noted that there was no medical history of heart disease (various medical records, including the deceased's general practitioner's notes, having been tendered). As his Honour put it, "There was nothing that Mr Cook had complained of prior to his collapse on this particular day which would indicate any impending heart attack and nothing in his history that would suggest that he suffered from any of the precursors to a heart attack".[30] The Coroner then set out some of the observations of Mr Mulquiney and Mr Kreeck, before concluding that the evidence of Mr Kreeck suggested "that Mr Cook in the process of removing the final earth stick from the high voltage wire had lost some control of the earth stick and a loss of control of the earth stick in such close proximity to the low voltage power lines ... raise[d] the very real likelihood of electrocution through the loss of control of that earth stick [by] Mr Cook".[31]

34 Whilst there was some evidence that the locking of the jaw observed by Mr Mulquiney and Mr Kreeck could have been equivocal, his Honour expressed the view that the locking of the jaw supported the argument that in all likelihood, there had been contact with the low voltage wires.

"I think the evidence from the pathologists doesn't assist me in reaching a conclusion one way or the other as to the existence of electrocution. The evidence is equivocal and whilst I have the utmost respect for Dr Collins and Dr Parsons in my view whilst Dr Collins was of the view that if he was faced with a choice between cardiac arrhythmia and natural causes and electrocution he would prefer cardiac arrhythmia, that is not really the test that is applied here."[32]

"The test is the balance of probabilities and in my view the balance of probabilities in this particular case lead me to the view that on balance it is more likely than not that Mr Cook was electrocuted as a result of lowering that third earth stick in close proximity to the low voltage lines.

I do reach that conclusion on the following bases. One, there was no significant indication of prior heart disease. That he was not engaged in any particularly strenuous activity which would act as a catalyst to a cardiac arrhythmia. There was no suggestion that he was suffering to any of the symptoms prior to his arrest although I accept what Dr Collins says that people can have all the precursors to a heart attack and not know of them.

The observations of the witnesses have Mr Cook collapsing in the bucket and I accept Mr Mulquiney's evidence that there was some exclamation, it may not have been the expletive initially described but it is an exclamation in my view entirely consistent with a recognition by Mr Cook that something had happened which had put him in danger of electrocution. In my view it is unlikely if someone has suffered a spontaneous cardiac arrhythmia that an exclamation of that type in this very narrow window of time, at this particular point in time, is likely.

I don't consider that the absence of any of the signs ordinarily associated with electrocution necessarily would lead me to a definitive conclusion that Mr Cook had not suffered an electrocution. This is not a situation where Mr Cook for example had been walking down the street or had been in bed and had suffered a heart attack. He was working in a high risk situation, in close proximity to low voltage wires and he had in his possession the potential for electrocution in the guise of the earthing stick and/or consistent with what Mr Walker had observed the potential to be resting against one of the wires by moving to the corner of the bucket.

...

I am satisfied on the evidence as I have found that on the balance of probabilities that commonsense dictates that Mr Cook in all likelihood and on balance given the circumstances as I have found them died as a result of coming into contact with live wires, that is that he was electrocuted."[33]

37 Discussion then ensued between the Coroner and counsel for Thales as to whether the inquest could go on to explore codes of practice and practices which operated at the Thales factory at the time of the incident with respect to working on high voltage and low voltage electricity. Counsel for Thales said that this course was not open as the Coroner had now discharged all his duties under s 67(1) of the Coroners Act. During this discussion, the Coroner appeared to accept that he was bound by the decision of Harmsworth v The State Coroner.[34] His Honour expressed the view that the inquiry he proposed was not at odds with what the Court had said in Harmsworth, before saying:

"In my view having found that Mr Cook was electrocuted it is incumbent upon me as the Coroner to look at the circumstances of his death with a view to making recommendations which may prevent similar deaths occurring in the future."[35]

38 Notwithstanding the detail in the ex tempore reasons provided by the Coroner on 3 June 2010, the Coroner then said to counsel for Thales, "If it was a matter of great significance to your client I would be prepared at some later stage to prepare detailed reasons for [the] finding".[36] There was further discussion, and the Coroner then said:

"Although that [the provision of further reasons] would take some time for me to put those matters into a written form I am of the view that having found that Mr Cook was electrocuted that it does provide a basis upon which I can make comment or recommendation because those comments and recommendations would be necessarily connected with the death and be relevant."[37]

39 Following further discussion between the Coroner and counsel for Thales, the matter was stood down to enable counsel for Thales to seek instructions about appealing or reviewing the Coroner's decision. During the adjournment, it would appear that clothing worn by the deceased at the time of the incident was located. The Coroner expressed the view that the clothing should be provided to the informant and then access granted to Mr Stevens, Dr Parsons and Dr Collins "because it is in everyone's interest that the shirt be closely examined to determine whether or not it holds any forensic clues one way or the other as to whether or not my finding is a correct one or not".[38]

40 During the course of this discussion, counsel for Thales conveyed his instructions in relation to an appeal or review of what had occurred in the inquest to that point in time. The Coroner then said:

"Obviously if this matter is going to be now the subject of an appeal it would appear to be wholly premature to hear from those witnesses [Mr Quinn and Mr Gehrig] although it does I guess encourage a rather fragmented and piecemeal approach to a Coronial inquest and is at odds with my mandate to conduct the matter as expeditiously as possible in order to give the family some closure but that of course needs to be balanced against your client's right to appeal the rulings that I have made during the course of this inquest."[39]

41 Finally, the Coroner made clear that his offer to provide further reasons was in respect of his conclusion that he had a basis to inquire further and make recommendations and comments.[40]

42 Before proceeding further, it is necessary to consider the relevant provisions of the Coroners Act and the Coroners Court Rules 2009.

The Coroners Act

43 Section 67 of the Coroners Act sets out the matters which a Coroner investigating a death must, if possible, find. Section 67 also deals with comments that a Coroner may make. Section 67 relevantly provides:

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

(a) the identity of the deceased; and

(b) the cause of death; and

(c) unless subsection (2) applies, the circumstances in which the death occurred; and

(d) any other prescribed particulars.

(2) Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if-

(a) an inquest into the death was not held; and

(b) the coroner finds that-

(i) the deceased was not, immediately before the person died, a person placed in custody or care; and

(ii) there is no public interest to be served in making a finding regarding those circumstances.

(3) A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice."

44 Section 72 of the Coroners Act deals with recommendations. Section 72 relevantly provides:

"(1) A coroner may report to the Attorney-General on a death or fire which the coroner has investigated.

(2) A coroner may make recommendations to any Minister, public statutory authority or entity on any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice.

(3) ...

(4) ...

(5) ..."

45 Section 73 deals with the publication of findings, comments and recommendations made following an inquest. Section 73(1) provides:

"(1) Unless otherwise ordered by a coroner, the findings, comments and recommendations made following an inquest must be published on the Internet in accordance with the rules."

The expression "the rules" is defined in s 3(1) of the Coroners Act to mean, "Rules of the Coroners Court".

46 Section 76 of the Coroners Act provides for the correction of a finding, recommendation or comment, if it contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures or the like, or a defect of form. Section 77 permits the re-opening of an investigation (on application to the Coroners Court) for findings to be set aside, if the Coroners Court is satisfied that there are new facts and circumstances and that it is appropriate to re-open the investigation.

47 Section 83(2) provides that an interested party may appeal against the findings of a Coroner in respect of a death. The expression "interested party" is defined in s 3(1) to mean a person who was granted leave to appear at the inquest. The appeal permitted by s 83(2) is, by the operation of s 87(1), "an appeal on a question of law".

48 Part 2 of the Coroners Act contains provisions setting out objectives intended to give guidance in the administration and interpretation of the Coroners Act.[41] Part 2 contains ss 8 and 9. Sections 8 and 9 of the Coroners Act provide:

"8. Factors to consider for the purposes of this Act

When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following-

(a) that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;

(b) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;

(c) that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;

(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;

(e) that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;

(f) the desirability of promoting public health and safety and the administration of justice.

9. Fairness and efficiency of coronial system

The coronial system should operate in a fair and efficient manner."

49 Division 3 of Part 5 of the Coroners Act deals with the conduct of inquests. Section 62 provides that the Coroner is not bound by the rules of evidence. Section 64 provides that the Coroner holding the inquest determines the witnesses to be called and the relevant issues for the purpose of the inquest. Section 65 provides that an inquest must be conducted with as little formality and technicality as the interests of justice permit.

The Coroners Court Rules 2009

50 Section 20 of the Coroners Act 1985 required a Coroner or the Coroner's clerk to keep a record of each investigation into a death. The record was required to be kept in the prescribed form. The form was variously Form 1 under the Coroners Regulations 1996 and then Form 1 under the Coroners Regulations 2007. Regulation 8 of both of those Regulations provided for the use of Form 1. There are no equivalent provisions in the Coroners Act 2008 or the Coroners Regulations 2009. However, rule 60 of the Coroners Court Rules 2009 provides that the finding of a Coroner following an inquest into a death must be in Form 37 of those Rules. Form 37 provides for the recording of findings, comments and recommendations. Whilst rule 60 is expressed in mandatory terms, Rule 7 provides that a failure to comply with the Coroners Court Rules is an irregularity and does not render any order a nullity.

51 An issue arises as to the status of the ruling of 3 June 2010. Thales asserts that the ruling is a finding that is capable of being appealed under s 83(2). There are a number of problems with this submission.

52 First, the Coroner clearly regards the inquest as not finished. Whilst s 67 of the Coroners Act does not state explicitly the time at which findings must be made, s 83(2) provides for an appeal against findings "after an inquest".

53 Secondly, it would appear that the ruling as to electrocution was made at a time when further evidence was contemplated - albeit not from any relevant eye witness or medical practitioner. Much of the difficulty caused in the present case appears to me to have been caused by what the Coroner described as a fragmented and piecemeal approach,[42] which was acquiesced in (if not actively encouraged by) counsel for Thales. There are many authorities dealing with the dangers of separately trying different issues.[43] Whatever may be the utility in scheduling inquests so that witnesses on particular topics are dealt with at the one time, care needs to be taken to ensure that findings are made on the whole of the evidence - and not on some limited selection.

54 Thirdly, after the ruling on the issue of whether or not the deceased was electrocuted was given, it became apparent that there was further evidence that might be relevant to that issue. The inquest was conducted on the basis that the clothing worn by the deceased at the time of the incident may have been marked if the deceased was electrocuted. The acknowledgment by the Coroner of the fact that the clothing that was found on the last day of the inquest might have a bearing on whether it could (or could not) be shown that the deceased had been electrocuted[44] calls into question the status of his "finding" or "ruling". It appears to be contemplated that the issue may not be finally resolved so far as the inquest is concerned. It may be that when one examines the whole of the proceeding before the Coroner, all one can safely conclude is that on the evidence heard to date, the Coroner has made a preliminary finding[45] of electrocution - whatever might be the utility of such a finding.

55 The conclusion or ruling or finding of electrocution was not made "after an inquest", as required by s 83(2) of the Coroners Act. Further, it has not been put into any form - much less Form 37 of the Coroners Court Rules. Whilst the failure to comply with rule 60 and s 73(1) might not invalidate a finding truly made, it suggests that no final determination, carrying rights of appeal, has yet been made. That, of itself, is sufficient to dispose of the appeal proceeding.

56 Whilst it is arguable that the same reasoning is sufficient to dispose of that part of the order 56 proceeding relating to the ruling that the deceased was electrocuted, I turn, in any event, to consider the substantive ground argued by Thales that it was not open to the Coroner to conclude that the deceased was electrocuted. Thales submitted that there was no evidence upon which the Coroner could make this finding, and that the absence of any evidence upon which the Coroner could make this finding constituted an error of law (for the purposes of the appeal) and an error of law on the face of the record, or jurisdictional error, for the purposes of the order 56 proceeding.[46]

Was it open to the Coroner to conclude that the deceased was electrocuted?

57 The Coroner accepted that Briginshaw v Briginshaw[47] had application in this case. That is, his Honour accepted that he actually had to be persuaded that the deceased was electrocuted having regard to the consequences of such a determination.[48] In his ruling, the Coroner referred to the relevant evidence that had been called to date. He analysed it and correctly concluded that the medical evidence was not determinative - it remained a matter for him, based upon the whole of the evidence.

58 Remembering that one is looking at these proceedings from the perspective of whether there has been an error of law (and not whether there has been some error of fact), it is for the Coroner (and not this Court) to find the facts. Having read the Coroner's analysis, there is no question of law that arises in relation to his Honour's analysis of the facts. It was well within his Honour's province to conclude (based upon the observations of the eye witnesses and the inherent probabilities) that the deceased was electrocuted.

59 Whilst different views may have been open on the facts involving either natural causes or an inability to determine the cause of death, ultimately the question was a question of fact to be determined by the Coroner having weighed all the evidence. Reasonable minds might come to different conclusions (or indeed conclude that a particular determination was wrong in fact). However, that is not to say that a particular conclusion (in this case, electrocution) was not open. In my view, the eye witness accounts, the fact that the deceased was not doing anything particularly physically stressful[49] and the inherent improbability of suffering a heart attack without warning at just the time when the deceased was working in the vicinity of live power lines entitled the Coroner to come to the conclusion that the deceased had been electrocuted.[50] Put another way, I am not satisfied that the conclusion (if it be a final conclusion) was not open to the Coroner.

60 Thales' submissions on the issue of electrocution involve a different analysis of the evidence and factual matters than that performed by the Coroner. Whilst it might be said that the analysis performed by Thales is not wholly without substance, it is only that - an analysis of matters of fact. Further, it is to be remembered that a question of law is not involved in a decision simply because a tribunal or court makes one or more findings of fact that are not supported by evidence, nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound.[51] Like the view taken by Phillips J in Nikolic v Schultz,[52] the present proceedings seem to me to be a case where Thales has laboured to convert what was essentially a question of fact into a question of law. To use the words of Phillips J:[53]

"Such attempts have not gone unnoticed by the courts which have tended to deprecate the practice of 'attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by' some other body ...".

61 It follows from what I have said above that there is no basis for overturning the Coroner's finding that the deceased was electrocuted. However, as I have also said above, the issue may yet fall to be finally determined once the deceased's clothing is examined and any other relevant evidence is given. I turn now to consider the other major issue in these proceedings, namely whether, in giving the ruling (or making determinations or findings), the functions of the Coroner were exhausted. However, before answering that question, it is necessary to examine the course the Coroner proposed to take after the giving of the 3 June 2010 ruling.

62 On 23 June 2010, the Coroner provided written reasons for his determination to continue the inquest. These were the additional reasons foreshadowed on 3 June 2010.

63 In his Honour's reasons of 23 June 2010, his Honour noted the circumstances in which the incident on 30 December 2008 occurred, the post-mortem result and his Honour's conclusion of 3 June 2010 that on the balance of probabilities, the deceased was electrocuted. His Honour also noted:

"I found as a fact that, Mr Cook had been responsible for carrying out a safety assessment of the risks involved in the subject work, and had compiled the necessary access permits required to undertake the works. I found that his work was consistent with industry codes of practice and in accordance with the relevant industry standards."[54]

64 Further, in his reasons of 23 June, the Coroner noted his intention to continue with the inquest "to inquire into occupational health and safety standards and protocols at Thales" and "to inquire into industry standards and practices with a view to giving consideration to making comments or recommendations that may contribute to the reduction of the number of preventable deaths in similar circumstances".[55]

Have the functions of the Coroner been exhausted?

65 Thales submits that the functions of the Coroner are now exhausted. The submission was that the Coroner has found the identity of the deceased,[56] the cause of death[57] and the circumstances in which the death occurred.[58] I reject that submission. When one examines closely the circumstances of the inquest to date, one sees that the circumstances in which the death occurred have not been finally investigated or found. Specifically, there is the issue of the deceased's clothing, and whether, upon further investigation, the state of that clothing will lead to any further elucidation of the circumstances of the deceased's death (or some different conclusion from the 3 June 2010 conclusion as to causation).

66 At one level, it is true that the Coroner has found the identity of the deceased, the cause of death and various circumstances in which the death occurred. However, that is not to say that his Honour has found the circumstances as required by s 67(1)(c). A fair reading of the transcript of the hearing before his Honour suggests that his Honour is still in the process of finding the circumstances as required by s 67(1)(c). In those circumstances, there is no substance to the submission by Thales that the functions of the Coroner are now exhausted.

67 Thales makes complaint that the Coroner intends to call further evidence "solely for the purpose of making comment".[59] It may be accepted that a Coroner is not permitted to inquire for the sole or dominant reason of making comment or recommendation.[60] The power to comment arises as a consequence of the obligation of the Coroner to make findings (if possible) as to the identity of the deceased, the cause of death and the circumstances in which the death occurred.

68 In the present case, the inquest has been fragmented as a result of submissions made on behalf of Thales. If the case had been conducted as an ordinary inquest where all of the relevant evidence is called before findings are made, then it would have been open to the Coroner to call as part of his investigation into the circumstances in which the deceased died, evidence of the kind he now wishes to call. The question of what comment or recommendation might be permissible as a result of evidence that has yet to be called is not capable of determination at this stage. The complaints of Thales are premature. There is nothing in the material that suggests to me that the Coroner is contemplating continuing the inquest in a manner inconsistent with the Coroners Act or authorities relating to the earlier Act (the Coroners Act 1985). Indeed, in rejecting the submission of counsel for Thales that the Coroner could not proceed with the hearing, his Honour said:

"I believe there is a significant and compelling basis upon which I should inquire as to the circumstances of Mr Cook's death with a view to making findings which would prevent similar deaths occurring in the future."[61] (emphasis added)

69 It is trite to say that in interpreting the Coroners Act, the Act must be read as a whole.[62] Assistance in ascertaining the meaning of the Act may be obtained from the preamble.[63] The preamble of the Coroners Act provides:

"The Coronial system of Victoria plays an important role in Victorian society. That role involves the independent investigation of deaths and fires for the purpose of finding the causes of those deaths and fires and to contribute to the reduction of the number of preventable deaths and fires and the promotion of public health and safety and the administration of justice.

This role will be enhanced by creating a Coroners Court and setting out the role of the Coroners Court and the Coronial system and the procedures for Coronial investigations."

70 Further, s 1(c) of the Coroners Act provides that one of the purposes of the Act is "to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations by Coroners".

71 Thales submitted to the Coroner that if his Honour was unable to make a finding of electrocution, then the Coroner would have no power to comment or make recommendations. This submission was without substance. To the extent that it was pursued in these proceedings, I reject it. There may be many cases where the cause of death is uncertain, but that the circumstances in which the death occurred give rise to significant and substantial matters relating to public health and safety or the administration of justice. Neither the text of s 67 of the Coroners Act, nor the Act when read as a whole, limit the power of the Coroner to comment on such matters provided they are "connected with the death" which is being investigated. The same may be said of s 72(2). To hold otherwise would be contrary to the text of ss 67 and 72 and the purpose of the Act when read as a whole.

72 A good deal of the submissions of both Thales and the Attorney-General were taken up with analysing Coroners Acts in other jurisdictions and cases involving the limits of inquests permitted by those Acts in those jurisdictions. The various analyses that can be made of these Acts and those cases are of limited assistance in the present case. As presently advised, the Coroner seeks to continue the inquest which has been started, for the purpose of investigating further the circumstances (and perhaps also, the cause) of the death of Mr Cook. That course is not only permitted by the Coroners Act, it is mandated by the requirement that the Coroner must find (if possible) the circumstances in which Mr Cook's death occurred.[64]

73 It is, at this stage, hypothetical to consider whether the calling of a particular witness or particular evidence might infringe the prohibition on not inquiring for the sole or dominant reason of making a comment or recommendation. Similarly, it would be premature to speculate on whether any particular evidence that might or might not be called might or might not be "connected with the death [of the deceased]". I do not propose to embark on the dangerous course of attempting to chart the metes and bounds of what will be permissible upon any resumption of the inquest.[65]

74 There can be no doubt that the Coroner is permitted to continue the investigation into the cause of the deceased's death, and also into the circumstances in which his death occurred. Further, the power to comment and make recommendations is then engaged in respect of "any matter connected with the death".

75 Whilst the words "connected with" are capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote,[66] I agree with the interpretation given to these words by Muir J in Doomadgee v Clements.[67] In that case, Muir J had to consider s 46 of the Coroners Act 2003 (Qld), which permitted a Coroner to comment on anything "connected with a death". His Honour noted that there was no warrant for reading "connected with" as meaning only "directly connected with". His Honour went on:[68]

"Something connected with a death may be as diverse as the breakdown of a video surveillance system, the reporting of the death, a police investigation into the circumstances surrounding the death, and practices at the police station or watchhouse concerned."[69]

76 Similarly, relevant occupational health and safety standards and protocols at Thales in relation to the work the deceased was doing at the time of his death are, in my view, matters connected with the death within the meaning of s 67(3) and s 72(2) of the Coroners Act. Further, the same may be said in relation to industry standards and practices concerning the work the deceased was doing at the time he collapsed. More specifically, Thales has not persuaded me that the continuation of the investigation into the death of Mr Cook, and the circumstances of his death, is limited so as not to permit the Coroner to look at the standards, protocols and practices in place at the time and applicable to the work being performed by Mr Cook at the time of his collapse. Harmsworth v The State Coroner[70] was a very different case from the present proceedings. In Harmsworth, the Coroner sought to conduct investigations into issues not connected with the deaths he was investigating. There is nothing in the material that suggests to me that the Coroner in the present case proposes to take any such step.

77 During the course of argument, Senior Counsel for Thales submitted that "In the light of what [had] occurred [below]"[71] it would not be appropriate to simply remit this matter back to the same Coroner for an ongoing part-heard inquest. I reject that submission. To the extent that difficulty has been created by the fragmentation of the inquest, that difficulty was brought about by the submissions made by Thales. For the reasons given above, there is no basis for not permitting the inquest to be continued in accordance with the provisions of the Coroners Act. Further, there are no circumstances justifying remittal to a different Coroner.

78 It follows from what I have said above that the appeal proceeding and the Order 56 proceeding must be dismissed. I will hear the parties on the question of costs.

[2] Cf R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13, 35.

[10] Answer to question 90 of the recorded conversation between Mr Kreeck and Comcare Investigators. See further T161 - T163 of the inquest.

[27] [1938] HCA 34; (1938) 60 CLR 336.

[34] [1989] VicRp 87; [1989] VR 989.

[41] See s 6 of the Coroners Act.

[43] See for example Tepko Pty Ltd v Waterboard [2001] HCA 19; (2001) 206 CLR 1, 55 [168]-[170] and Hyder Consulting (Vic) Pty Ltd v CGU Insurance Limited [2001] VSC 449.

[45] Cf paragraph 8(c) of the outline of submissions on behalf of the Attorney-General dated 23 March 2011.

[46] Cf the actual terms of the notice of appeal and the originating motion, both of which appeared to suggest that it was sufficient for Thales to establish that the finding of electrocution was "against the weight of the evidence".

[47] [1938] HCA 34; (1938) 60 CLR 336.

[48] Cf s 140 of the Evidence Act 2008.

[49] Cf one of the foundations for Dr Collins' opinion.

[50] Cf Dahl v Grice [1981] VicRp 50; [1981] VR 513.

[51] See Transport Accident Commission v O'Reilly [1998] VSCA 106; [1999] 2 VR 436, 460 [58] (per Callaway JA).

[52] Unreported Supreme Court of Victoria delivered 22 October 1991.

[56] Section 67(1)(a) of the Coroners Act.

[57] Section 67(1)(b) of the Coroners Act.

[58] Section 67(1)(c) of the Coroners Act (and noting that there are no other "prescribed particulars" as contemplated in s 67(1)(d).

[59] Paragraph 42 of the submission on behalf of the appellant/plaintiff filed pursuant to the amended orders of Zammit AsJ made 18 February 2011, and dated 9 March 2011.

[60] Cf Harmsworth v The State Coroner [1989] VicRp 87; [1989] VR 989.

[62] Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 23.

[64] Cf s 67(1)(c) of the Coroners Act.

[65] Cf Kostas v HIH Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 417 [88].

[66] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

[67] [2006] 2 Qd.R. 352.

[69] Cf Burswood Management Limited & Ors v Attorney-General (Commonwealth) [1990] FCA 203; (1990) 23 FCR 144 wherein the Full Court of the Federal Court held that the words "in connection with" are words of wide import.

[70] [1989] VicRp 87; [1989] VR 989.