Appellant v Respondent

2 In April 2021, Deputy State Coroner English[1] found, after performing an investigation into his death, that Mr Keys died from 'extensive complications of wound breakdown following subtotal colectomy with contributing factors [of] ischaemic heart disease [and] chronic obstructive pulmonary disease.' The Deputy State Coroner said nothing to suggest that Mr Hii's decision to operate was wrong, or that he failed to conduct his operation with due care and skill, or that he failed in any way in his duty of care owed to Mr Keys. Rather, the Deputy State Coroner accepted that what occurred here was a recognised and often-unavoidable complication of the medical procedure that was undertaken.

3 Mr Hii has appealed to this Court under s 83 of the Coroners Act 2008 against the Deputy State Coroner's findings. The appeal is limited to an appeal on a question of law.[2] Mr Hii did not have legal representation. The documents he filed did not clearly identify a question of law. His amended notice of appeal filed on 3 March 2022 contained several grounds of appeal. The grounds referred in large part to factual findings with which Mr Hii disagreed. The court is obliged to consider whether the matters raised do raise a question of law.[3] Having regard to the amended notice of appeal, the various written submissions that Mr Hii filed, and what he told me at the hearing of the appeal, it seems to me that he seeks to agitate the following questions of law:[4]

(a) whether a reasonable coroner, on the evidence before her, could have found that the anastomic leak or rupture was caused by wound breakdown rather than from the administration of the enema;

(b) whether a reasonable coroner, on the evidence before her, could have found that the cause of Mr Keys' death was wound breakdown, rather than the treatment given to him at the Box Hill Hospital in December 2006; and

(c) whether the Deputy State Coroner failed in her statutory duty to investigate Mr Keys' death by failing to consider whether it was caused by the treatment given to him at the Box Hill Hospital.

4 The Coroners Court of Victoria appeared in order to assist the Court but, expressly, and in accordance with R v Australian Broadcasting Tribunal; ex parte Hardiman,[5] did not seek to present arguments against Mr Hii's appeal.

5 Before turning to the questions of law, it is worth referring to the complicated procedural background to this appeal.

B. The background to this appeal and the Deputy State Coroner's findings

6 On 20 December 2006, a pathologist with the Victorian Institute of Forensic Medicine, Dr Linda Iles, performed an autopsy on Mr Keys. She found a 'side to side enteric anastomosis ... with adjacent focus of haemorrhagic mucosa' and a 'second side to side enteric anastomosis with haemorrhagic suture line and haemorrhage into the adjacent mesentery.' She identified the cause of death as:

Extensive complications of wound breakdown following subtotal colectomy.

7 A Coroner, Dr Jane Hendtlass, investigated the death and, on 26 February 2008, found, consistently with the autopsy report, that Mr Keys died from extensive complications of wound breakdown following subtotal colectomy. There matters lay for more than 11 years. Then, on 23 April 2019, Mr Hii sought to have the Coroner's finding set aside.[6] As well as pointing out some errors in the dates recorded by her, Mr Hii contended that the Coroner had not considered the administration of the resonium enema. He wrote that he 'agreed' with the statement as to the cause of death, but considered that it was 'more likely from the complication of resonium peritonitis'. He prepared a document in which he asserted that:

I do strongly believe and agree with Dr. Linda ILES that Mr. KEYS DIED from EXTENSIVE COMPLICATIONS of WOUND BREAKDOWN as found by Dr Linda ILES but from RESONIUM PERITONIS and not from SUBTOTAL COLECTOMY...[7]

8 On 5 August 2019, Deputy State Coroner English decided to set aside the earlier findings and to re-open the investigation into Mr Key's death. In doing so, the Deputy State Coroner stated:

[Mr Hii] has correctly identified errors in the Findings and has also raised the new issue of the resonium enema and its potential impact. As this was not a matter previously considered ... I determine that the matters raised in the Application constitute new facts and circumstances under s.77 of the Act.

9 The Deputy State Coroner obtained a report from the colorectal surgeon Mr James Keck. Mr Keck identified a possible conflict of interest. The Deputy State Coroner then obtained a second report from the colorectal surgeon Professor Ian Jones. Mr Hii submitted reports from the paediatric urologist and surgeon Dr Paddy Dewan, the retired general surgeon Dr Russell Broadbent, and the general surgeon Professor Avni Sali.[8] Dr Dewan opined that the resonium enema caused the complication that led to the anastomosis breakdown and thus caused the death. Dr Broadbent opined that the administration of the resonium enema ruptured or perforated the bowel, Mr Hii 'was blameless', and that, if fault had to be directed anywhere, 'it has to be against those that ordered the enema that led to the patient's demise'.[9] He was also critical of the decision to operate in December 2006. Professor Sali was critical of the decision to administer the resonium enema, at least without first consulting Mr Hii, noted that anastomic leaks 'can occur between one to thirty percent, following intestinal surgery' and was 'a common complication' of the type of surgery performed, and that if the patient did have a small anastomic leak, it is 'quite possible' that the resonium enema 'could have made this leakage worse'.

10 Mr Hii also filed a 'statement' in which he put forward his opinion that the anastomic 'leak' found at the 28 December 2005 operation was in fact an acute rupture that had been recently caused - by implication as a result of the administration of the resonium enema - rather than being due to a failure of his anastomosis.

11 As is apparent from the above, there was, then, no dispute that by 28 December 2005 Mr Keys had developed a leak of faecal matter into his abdomen and associated infections from which he never, in substance, recovered, and accordingly that he had died from complications of wound breakdown following subtotal colectomy. But Mr Hii contended that the wound breakdown had occurred as a result of the administration of the resonium enema, and so it was the administration of the resonium enema, rather than a wound breakdown, that should have been recorded as the cause of death.

12 On 29 April 2021, the Deputy State Coroner published her findings. She found that:

(a) the anastomic breakdown and subsequent leak occurred sometime between 23 and 27 December 2005;

(b) anastomic breakdown was a recognised complication of the type of surgery performed and the administration of the resonium enema, although contraindicated, was not a cause of the anastomic leak; and

(c) the cause of death as formulated by Dr Iles remained an accurate description of the causes of Mr Keys' death.

13 In making these findings, the Deputy State Coroner expressly accepted the opinion of Professor Jones over any contrary opinions expressed by Dr Dewan, Dr Broadbent or Professor Sali.

C. Question 1: Was it open for the Deputy State Coroner to conclude that the anastomic leak or rupture was not caused by the resonium enema?

14 As noted above, Mr Hii submitted reports from the paediatric urologist and surgeon Dr Dewan, the retired general surgeon Dr Broadbent, and the general surgeon Professor Sali. The opinions of those doctors are summarised in para 9 above. Mr Hii also put forward some literature that showed that the administration of resonium enemas could cause necrosis, wound breakdown or other gastrointestinal injury and noted, among other things, that resonium was found by the pathologists in the area of the anastomic rupture. Mr Hii also noted that the 'death report to coroner' completed by Dr Harrison from the Box Hill Hospital identified in the box headed 'Opinion as to cause of death':

? CARDIAC ARREST SECONDARY TO ANAEMIA (UNCLEAR)

15 In this way, Mr Hii placed before the Deputy State Coroner material that squarely raised the question as to whether or not the anastomic rupture was caused by the administration of the resonium enema. The Deputy State Coroner was required to consider this question. She did so: she concluded that the administration of the resonium enema did not cause the anastomic rupture or leak. Her finding was a finding of fact. The issue in this appeal is not whether this Court agrees with that finding but rather is whether that finding was against the weight of the evidence to such an extent that no reasonable coroner could have made that finding.[10]

16 In my view, the finding of the Deputy State Coroner was not a finding that no reasonable coroner could have made. The finding was supported by expert opinion given by Professor Jones. That opinion extended to the following:

(a) Mr Hii had tested the anastomosis site prior to completing his 21 December 2005 operation and this indicated that the anastomosis site was intact at that time.

(b) The histology reports from the 28 December 2005 operation revealed, among other things, ulceration, necrosis and perforation, and also basophilic material that was consistent with residue of resonium preparation.

(c) An anastomotic leak is a recognised complication of the surgery that can occur in 2 to 4% of cases. A leak may develop in an 'apparently intact anastomosis' due to the development of ischaemia to the bowel ends brought together that in turn leads, over a number of days, to tissue necrosis and dehiscence. The most common time for an anastomic leak to occur is on the fifth day following surgery.

(d) Having regard to the contemporaneous records of Mr Keys' symptoms, the anastomic leak occurred sometime between 23 December 2005 and the early hours of 27 December 2005 and before the resonium enema was administered: it was 'far more likely' that the anastomotic dehiscence was established before the resonium enema was administered that day.

(e) Further, it was unlikely that the nozzle and tubing of the enema would have caused direct trauma to the anastomosis, and the volume of solution introduced was unlikely to create a rise in pressure sufficient to cause traumatic rupture. Also, the histologic findings were more pronounced than might be expected had the administration of the enema caused the anastomosis.

(f) Finally, although the literature described patients who had received resonium enemas developing pathologic features of ulceration, necrosis and perforation, this was 'very uncommon', he had not seen such a case in his 35 year clinical practice, and it was 'clearly statistically unlikely' that the resonium enema was responsible for the disruption of Mr Keys' anastomosis.

17 Professor Jones's expertise was not in dispute. He had worked as a colorectal surgeon since 1987. From 1999 to 2012 he was the head of colorectal surgery at the Royal Melbourne Hospital and remained a Clinical Professorial Fellow in the University of Melbourne Department of Surgery also at the Royal Melbourne Hospital. Between 1993 and 2011 he was a member of the executive committee of the Training Board in Colon and Rectal Surgery. From 2007 to 2012 he was the chairman of the Colorectal Surgical Society of Australia and New Zealand. He was the author of numerous reports and other learned writings, and remained in active clinical practice. His report is detailed and reveals that he gave genuine consideration to the material relied upon by Mr Hii including the contemporaneous records and the reports of Dr Dewan, Dr Broadbent and Professor Sali. It was well open to the Deputy State Coroner to accept, and act upon, Professor Jones's evidence.

18 Accordingly, Mr Hii has failed to establish that the Deputy State Coroner erred in law by doing so.

D. Questions 2 and 3: The treatment at the Box Hill Hospital

19 As noted above, Mr Hii also contended in this Court that the real cause of Mr Keys' death was the treatment given to him by the doctors or medical staff at the Box Hill Hospital. He accepted that there was bleeding at the ileostomy site, but asserted that the bleeding at the ileostomy was 'most likely coming from' anticoagulant medication that had been administered at the Box Hill Hospital, and also that the doctors there should not have performed the operations they did in an attempt to treat that bleeding. He pointed out that Mr Keys survived for the 11 months during which he and his team were responsible for Mr Keys' health, and only died after Mr Keys' care had been transferred to others.

20 These arguments were not put to the Deputy State Coroner. Indeed, they were contrary to the way he put his case to the Deputy State Coroner, where he accepted that Mr Keys' death had resulted from wound breakdown but contested the cause of the wound breakdown. He explained this change by saying that he had not previously had access to the complete Box Hill Hospital medical notes.

21 At other times Mr Hii appeared to abandon his argument that the causal connection between the events of December 2005 and Mr Keys' death was broken. For example, at one stage he told me he accepted that:

(a) Mr Keys never recovered from the 28 December 2005 operation, in the sense that the medical condition revealed at that operation was a cause of his death a year later;

(b) the appeal to this Court accordingly comes down to whether or not the Deputy State Coroner was obliged to find that the problems that were found at the 28 December 2005 operation were caused by the enema; and

(c) the Deputy State Coroner should have found that the administration of the resonium enema was the cause of death.

22 Given that Mr Hii was unrepresented, I do not consider it appropriate to hold Mr Hii to what appeared to be the abandonment of his argument, as set out in para 21 above, that the Deputy State Coroner should have found that the cause of death was the treatment given to Mr Keys at the Box Hill Hospital. However, Mr Hii accepted that there was no material before the Deputy State Coroner, or me, that established that the administration of anticoagulant medication caused the bleeding at the ileostomy site. He did not seek to have this appeal adjourned so that he could obtain some. There was, similarly, no evidence before the Deputy State Coroner, or me, that established that the decision to operate on Mr Keys made at the Box Hill Hospital, which was directed at treating the bleeding from the ileostomy site, was inappropriate or in some other way broke the causal connection between the complications revealed at the 28 December 2005 operation and Mr Keys' death in December 2006.

D.2 Question 2: Was the Deputy State Coroner, on the evidence before her, entitled to find that the cause of Mr Keys' death was wound breakdown, rather than the treatment given to him at the Box Hill Hospital in December 2006?

23 On the evidence that was before her, the Deputy State Coroner was entitled to conclude that Mr Keys' death occurred 'from extensive complications of wound breakdown following subtotal colectomy with contributing factors of ischaemic heart disease and chronic obstructive pulmonary disease.' As noted above, Mr Hii had accepted before her that the conditions found at the 28 December 2005 operation were responsible for Mr Keys' death, and the only dispute he raised was whether those conditions were due to the resonium enema, rather than a complication of the operation.

(a) the Deputy State Coroner had before her the opinion in Dr Ile's autopsy report, which stated as the cause of death 'extensive complications of wound breakdown following subtotal colectomy'. She was entitled to have regard to that opinion;

(b) it was common ground that the anastomosis performed by Mr Hii did in fact rupture. Mr Hii operated for a second time on 28 December 2005. That operation revealed that Mr Keys had 'faecal peritonitis secondary to anastomotic leak'. Mr Hii, in an endeavour to treat the rupture or leak, among other things, formed an ileostomy. Mr Keys thereafter never left hospital. The Deputy State Coroner stated that '[d]uring his admission, he developed pneumonia, multiple episodes of atrial fibrillation, foci of faeculant wound drainage, ongoing renal impairment, and high output from his enterocutaneous fistula and ileostomy.' Mr Keys later developed bleeding at the ileostomy site, and died shortly after undergoing treatment directed at treating that bleeding. There is nothing inherently unlikely or implausible in a finding that connects the wound breakdown with Mr Keys' death; and

(c) the connection between the events of December 2005 and the death in December 2006 was also supported by the opinion of Dr Dewan that 'the resonium enema caused the death'.

25 The finding by the Deputy State Coroner was that death occurred 'from extensive complications of wound breakdown following subtotal colectomy with contributing factors of ischaemic heart disease and chronic obstructive pulmonary disease.' The Deputy State Coroner said nothing to suggest that the 'wound breakdown following subtotal colectomy' would have caused the death of a young, healthy man. Her finding was made in the context that Mr Keys was elderly and had other health issues. The statutory obligation on the Deputy State Coroner was, among other things, to identify, if possible, 'the cause of death'.[11] There are usually many necessary conditions for any event, and death is no different. Presumably, there will be situations where a coroner is entitled to identify more than one 'cause of death'. The reference by the Deputy State Coroner to the complications of ischaemic heart disease and chronic pulmonary disease is an acknowledgment that the presence of those conditions contributed to Mr Keys' death. But a coroner must, ultimately, use common sense and judgment to identify which among the many necessary conditions may sensibly be identified as the cause (or causes) of death.[12] This identification takes place in a context where the coroner is also empowered to 'comment' and to 'make recommendations' on any matter connected with the death, including matters relating to public health and safety or the administration of justice.[13] For this reason, in many cases a coroner might look to identify a cause that reflects some event or action taken or not taken that has led to a deviation from the 'ordinary' course of events that would otherwise have transpired. In Causation in the Law, Professors H.L.A. Hart and Tony Honoré said that '[t]he notion, that a cause is essentially something which interferes with or intervenes in the course of events which would normally take place, is central to the common-sense concept of cause ... [T]he cause ... is a difference from the normal course which accounts for the difference in the outcome'.[14] In such circumstances, the coroner may identify that event or action or inaction as 'the cause', even if other events were necessary parts of a causal chain. Other events may not be identified as 'the cause' or 'a cause' of death even if, but for them, the death would not have occurred when it did. Unless a coroner is permitted to engage in this judgment exercise, there would in all cases be an unlimited number of 'causes' of death, depending on the level of detail to which the analysis was prepared to descend.

26 The factor that impressed the Deputy State Coroner as being a sufficiently significant event in the chain of circumstances that resulted in Mr Keys' death was the breakdown of his wound. That complication of his operation, although not uncommon, was the deviation from the expected course without which Mr Keys would not have died when he did. The approach taken was open to the Deputy State Coroner. The ileostomy site was the source of Mr Keys' bleeding. The facts that Mr Keys died following the administration of anticoagulant medication[15] and following operations in December 2006 directed at addressing the bleeding do not make unreasonable the conclusion that the wound breakdown was the cause of death.

27 Again, it is clear that the Deputy State Coroner was not in any sense 'blaming' Mr Hii for Mr Keys' death. She was simply identifying which feature or features of his medical history, applying her judgment and common sense to the evidence that was before her, she considered to be the cause or causes of his death.

D.3 Question 3: Did the Deputy State Coroner fail to perform her statutory duty to investigate Mr Keys' death by failing to consider whether it was caused by the treatment given to him at the Box Hill Hospital?

28 As noted above, the background to the Deputy State Coroner's investigation was unusual. Coroner Hendtlass had concluded in 2008, based on the autopsy report, that the events of December 2005 were the cause of death in December 2006. Mr Hii applied to the Deputy State Coroner in 2019 to have the 2008 finding set aside, but did so on the basis that the Coroner had not taken into account the administration of the resonium enema. Then, after the 2008 finding was set aside, Mr Hii provided the Deputy State Coroner with three expert reports, and a six page 'statement' dated 10 December 2020. Mr Hii's essential contention to her remained that it was the administration of the resonium enema that was 'the cause of death'.

29 The Deputy State Coroner stated that she had reviewed all the material including the evidence contained in Mr Keys' medical records. She referred to Mr Keys' treatment at the Box Hill Hospital including the administration of angiograms and an 'emergency laparotomy' at which a segment of ileum was resected, after which operation Mr Keys 'subsequently deteriorated, and treatment was withdrawn'. Accordingly, I am not satisfied that the Deputy State Coroner failed to have regard to the Box Hill Hospital records. She clearly had regard to the fact that further operations were performed at the Box Hill Hospital, but did not consider that they were, using her common sense, 'the cause of death'. I see no error of law in the Deputy State Coroner so concluding.

30 The Deputy State Coroner did not, in her reasons, specifically refer to the fact that Mr Keys had been administered an anticoagulant prior to his bleeding at the ileostomy site. But there was no obligation on her to do so, and her omission to refer to that fact is equally consistent with her not thinking it to be a matter of sufficient significance. The Deputy State Coroner did not set out all the medication that Mr Keys was taking or had taken over his prolonged period of hospitalisation. In the absence of some evidence before me that could justify a conclusion that the administration of an anticoagulant in the circumstances was of such significance that no reasonable coroner could have decided other than that it was the cause of death, or could have failed to refer to it in the report and explain why it was not a cause of death, I am not satisfied that her failure to identify the administration of the anticoagulant as the cause of death, or specifically to refer to it in her report, indicates that the Deputy State Coroner failed to perform her statutory obligation to investigate Mr Keys' death.

31 Mr Hii explained that he was pursuing this matter because he said that the Australian Health Practitioner Regulation Agency ('AHPRA'), his regulatory body, had relied on the February 2008 findings to restrict his registration. He had indicated as much to the Deputy State Coroner. As noted above, neither coroner found that Mr Hii operated when he should not have or operated without due care and skill. I am not in a position to accept or to reject Mr Hii's assertion. I make no comment on the actions of AHPRA save to say that whatever steps it has or has not taken cannot affect the outcome of this appeal.

32 For the above reasons, the appeal will be dismissed.

[1] As her Honour then was. Deputy State Coroner English was also the Acting State Coroner at the time of the decision under s 77(2) of the Coroners Act 2008 (Vic) on 5 August 2019, which is discussed at para 8 below. In these reasons, I will refer to her as the Deputy State Coroner as that was her title at the time of the decision under review.

[2] Coroners Act 2008 (Vic) s 87(1).

[3] Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, 805 [165]-[166] (Whelan JA, Santamaria JA agreeing at 815 [206]).

[4] See, eg, Coroners Act 2008 (Vic) s 87(1A).

[5] [1980] HCA 13; (1980) 144 CLR 13.

[6] Coroners Act 2008 (Vic) s 77(1).

[7] A typographical error has been corrected.

[8] Both Dr Dewan and Dr Broadbent used the title 'Dr'.

[9] Two typographical errors have been corrected.

[10] Coroners Act 2008 (Vic) s 87(1A).

[11] Ibid s 67(1)(b).

[12] See, eg, Thales Australia Ltd v Coroners Court of Victoria (2011) VSC 133 [59] (Beach J).

[13] Coroners Act 2008 (Vic) ss 67(3), 72.

[14] H.L.A Hart and Tony Honoré, Causation in the Law (Oxford University Press, 2nd ed, 1985) 29. Emphasis in original.

[15] Presumably for his heart condition.