Country Energy v Deputy State Coroner Paul MacMahon and Anor

Coroners Act 1980 LEGISLATION CITED : Coroners Act 2009 Occupational Health and Safety Act 2000

Lucas-Smith v Coroner's Court of the Australian Capital Territory [2009] ACTSC 40; (2009) 166 ACTR 42 CASES CITED : Norbis v Norbis [1986] HCA 17; (1985) 161 CLR 513 Herron v Attorney General of New South Wales and Ors (1987) 8 NSWLR 601 R v H.M. Coroner for Derbyshire (Scarsdale), ex parte Fletcher (1992) 156 JP 522

Country Energy - Plaintiff PARTIES : Deputy State Coroner Paul MacMahon - First Defendant Attorney General of New South Wales - Second Defendant

COUNSEL : Mr B Walker SC with Mr B Shields - Plaintiff Mr MG Sexton SC SG with Mr S Free - Second Defendant

SOLICITORS : Norton Rose Australia - Plaintiff IV Knight, Crown Solicitor - Second Defendant

LOWER COURT JURISDICTION : NSW State Coroner's Court

LOWER COURT JUDICIAL OFFICER : Magistrate P MacMahon

• 32 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT J

2009/30098 COUNTRY ENERGY v DEPUTY STATE CORONER PAUL MACMAHON AND ANOR

JUDGMENT 1 HER HONOUR: By amended summons filed in October 2009, the plaintiff, Country Energy, seeks orders under s 85 of the Coroners Act 2009 quashing the inquest touching the death of Christopher Alan Howlett, conducted before NSW Deputy State Coroner MacMahon in August 2009; quashing the findings reached in relation to the cause of Mr Howlett's death; and ordering that a fresh inquest be held. The application is opposed by the Attorney General of New South Wales. 2 The conclusion reached by the Coroner was: "I am satisfied that Christopher Alan Howlett died on 23 October 2007 at Burringbar NSW. The cause of this death was electrocution that occurred when he came into contact with live electrical conductors in the course of his employment." 3 Country Energy was Mr Howlett's employer. It was an interested party represented at the inquest. Other parties represented were WorkCover NSW and Mr Howlett's family. There Coroner was assisted by counsel instructed by the Crown Solicitor. 4 Evidence was called from Senior Constable Cyril John Green, who attended the site where Mr Howlett collapsed at work in October 2007; Mr Garry Waldron, the other Country Energy employee who was working that day with Mr Howlett; Mr MacColl, another Country Energy employee, who allocated the work that day; Dr William Follent, who conducted the autopsy; Mr Jim Lawson, the WorkCover electrical engineer who prepared a technical report, after attending a re-enactment of the incident conducted by Country Energy; Mrs Susan Howlett, Mr Howlett's widow; a medical and engineering expert retained by Country Energy, Dr Chris Andrews; a medical expert commissioned by the Crown Solicitor's office, Dr John Raftos; and Dr Alan David Cala, a forensic pathologist, commissioned by the Crown Solicitor to provide evidence in relation to the autopsy standards adopted.

The parties' cases 5 Country Energy's case was that the Coroner wrongly determined the cause of Mr Howlett's death. That the true cause of a death be identified and made known is a matter of public interest underpinning the Coroners Act. The interests of justice require that there be a fresh inquest, it being apparent that the Coroner made an error in determining the cause of Mr Howlett's death. Furthermore, there was new evidence which supported the view that the true cause of death had not been identified. That, too, was a basis for ordering a fresh inquest. 6 The Attorney General's case was that it had not been demonstrated that there was any irregularity or error in the Coroner's findings, of a kind which could justify the orders sought. A disagreement with the conclusion reached on the evidence, is not a sufficient basis for disturbing the Coroner's findings. The findings made were open on the evidence. The conclusions reached were a rational resolution of the conflict in the evidence as to the cause of death. 7 In determining what the interests of justice required, it was relevant to consider that the plaintiff was represented at the inquest and that there were no ongoing legal consequences from the findings made. The Coroner made no criticism of Country Energy or its work practices. The Coroner's findings thus also had no ongoing consequences for such practices. 8 The evidence on which Country Energy sought to rely was not new, within the meaning of s 85 of the Coroners Act and even if it was, did not provide a proper basis for ordering a fresh inquest, given that it dealt with matters about which there was already evidence before the Coroner.

Admissibility of new evidence 9 The plaintiff sought to lead five new reports from four experts, which the Attorney General opposed as not being admissible. I received the evidence, taking the view that it was relevant to a determination of the matters in issue between the parties, particularly in relation to the relief sought under s 85(e) of the Coroners Act. These reports went to certain matters considered at the inquest, as well as matters not there addressed. 10 I took the view that the reports were clearly relevant to the question of whether they comprised 'new evidence' in accordance with s 85(e). Unless the reports themselves were in evidence in these proceedings, there would be no evidentiary foundation for the argument which Country Energy wished to advance. 11 Having received these reports, I also received, without objection, a further report from Dr Cala. Dr Odell, Mr Blackburn and Dr Cala were also cross examined on their reports.

The Coroner's Findings 12 The Coroner noted that his function under s 22 of the Coroners Act was to 'establish, should sufficient evidence be available, the fact that a person has died, the identity of that person, the date and place of their death and the cause and manner thereof'. He observed that the main issue for the inquest was whether Mr Howlett's death from ventricular fibrillation resulted from coronary artery disease or electrocution. This issue required the Coroner's determination, because of inadequacies in the conduct of an autopsy. 13 The autopsy was conducted by Dr Follent, who concluded that the cause of Mr Howlett's death was: "1. Direct Cause: (a) Cardiac arrest, (due to) (b) Left Coronary Artery Disease. 2. Other Significant condition contributing to the death but not relating to the disease or condition causing it. (a) Electrocution." 14 After correspondence with the District Coroner, Dr Follent issued an addendum to his report, which provided:

"If the authorities deem that no electrocution was involved, it is possible that the abrasions I saw were related to minor injuries unrelated to electrocution and thus his cardiac arrest due solely to Left Coronary Artery Disease." 15 The Coroner found that the cause of death given was 'medically incorrect and illogical'. Dr Follent did not undertake the tests available and necessary to determine whether death was caused by electrocution or acute coronary syndrome. Dr Raftos and Dr Cala each provided reports, in which they agreed as to required testing in such a case. The Coroner noted that Dr Raftos' evidence was:

"if the left coronary artery, which was noted to be 75% occluded by stenotic atherosclerotic plaque, had been examined for occlusive blood clot or the heart muscle had been microscopically(sic) for evidence of recent segmental heart muscle damage indicating acute coronary syndrome. Similarly, examination of soft tissue underlaying the abrasion on the left forearm may have shown evidence of deeper thermal injury indicating the presence of electrical burn caused by contact with high voltage wires." 16 The Coroner noted Dr Cala's evidence as: "Microscopic examination of the injuries, especially of the '2cm oval abrasion upper left anterior forearm', would have been able to indicate whether this was an electrocution burn or not. Dr Raftos also makes this point. In cases of suspected electrocution, it is very important that all suspected "burns" or "abrasions" are examined microscopically to prove or disprove that they are, in fact, due to electrocution. Electrocution burns have a specific micropsic appearance that is usually diagnostic.

The narrowed coronary artery and a few sections of the heart could also have been examined microscopically. An assessment could have been made as to whether any 'clot' was in the artery and to confirm the coronary artery narrowing. Likewise, any indication of myocardial ischaemia or infarction (insufficient blood supply or actual death of tissue) might have been able to be assessed in a few sections of the heart." 17 Dr Raftos had been retained by the Crown Solicitor to advise on the cause of death. Dr Cala had been retained by the Crown Solicitor, to advise on the conduct of the autopsy. Because there was no direct medical evidence which determined the cause of death, the Coroner turned to examine other evidence, in order 'to see if the cause of death can be determined by a less direct method', a matter considered by Dr Raftos in his report. The Coroner noted:

"It was not in issue at the inquest that had Mr Howlett come into contact with the live electricity he was working near and a circuit formed that would have been sufficient to result in his death. If there were sufficient evidence to establish such contact then the cause of death would be electrocution in the alternative, having regard to the evidence of the occlusion of the coronary artery by stenotic atherosclerotic plaque an inference could be draw that the cause of death was use to acute coronary syndrome. The question that must be answered is whether or not there is evidence available to the standard required that allows a finding that such contact did occur." 18 The Coroner observed that there were a number of issues not in contention, which included that Country Energy had a number of systems and procedures designed to protect employees working in an inherently dangerous environment; that Mr Howlett was working in an EPW (an elevated bucket), which was in good safe working order; that he was wearing the personal protection equipment which Country Energy required him to wear, including gloves designed to protect up to 1,000 volts; that he was working in an environment of up to 415 volts; and that he was also using insulating mats in the live conductors on which he was working on. 19 The Coroner also noted that Mr Howlett was an experienced linesman working with Mr Waldron, the work site controller, safety observer and assistant on ground. It was Mr Waldron's job to watch what Mr Holwett was doing and to warn him of any dangers he might encounter. Mr Waldron described the work Mr Howlett was doing overhead, when he heard him fall in the bucket, 'with a mighty thud'. He was observing him at the time and did not see him come into contact with live electricity conductors. The Coroner observed that:

"Mr Waldron also gave evidence at the Inquest. He confirmed in evidence what he had earlier described. He said that he was watching Mr Howlett the whole time and did not see him come into contact with the live electricity conductors. If Mr Waldron is correct Mr Howlett could not have been electrocuted. I have no reason to think that Mr Waldron was not doing his job to the best of his ability on 23 October 2007 nor do I have any reasons to think that he was not honest and truthful when he gave his statements to the police and the WorkCover NSW investigator and when he gave evidence at the Inquest." 20 The Coroner noted that Mr Howlett was found by Dr Follent to have 'an oval shaped 2cm abrasion upper anterior left forearm'. Dr Follent took no photographs of the injury. The crime scene officer had, however, taken three photographs which showed this injury. Mrs Howlett's evidence was that this injury was not visible when Mr Howlett left home that morning. The Coroner was satisfied that the abrasion must have been sustained after Mrs Howlett delivered Mr Howlett to work that day. There was no evidence as to how the abrasion was sustained. Mr Waldron did not see anything which could have resulted in the abrasion and Mr Howlett made no complaint of having been injured. The Coroner observed:

"The cause of the injury may, of course, have no relevance whatsoever to Mr Howlett's death. If it were an electrical burn however it would be necessary to exclude it as a possible contributing factor. As no tissue samples of the area surrounding the injury were taken by Dr Follent the results of such an examination is not available to assist in determining whether or not the abrasion was electrical in origin." 21 The Coroner noted that Dr Cala's evidence was: "it is very important that all suspected 'burns' or 'abrasions' be examined microscopically to prove or disprove that they are, in fact, due to electrocution. Electrocution 'burns' have a specific microscopic appearance that is usually diagnostic." 22 Dr Raftos agreed: "examination of the soft tissues underlying the skin abrasion on the left forearm may have shown evidence of deeper thermal injury indication(sic) the presence of an electrical burn." 23 Dr Andrews disagreed: "I have yet to see any microscopic examination of an electric burn able to provide this proof." 24 The Coroner did not find it necessary to resolve this controversy. He then turned to a second conflict between the experts as to whether the abrasion was thermal in origin. Dr Andrews and Dr Cala had examined certain images. Their views were: Dr Cala

"The injury appears to be red-brown in colour, is quite linear in configuration or shape, is possibly several millimetres wide and approximately 2 cm in length (no scale included). It has tapering ends with a wider centre, which appears slightly 'shallow' or excavated below the skin surface. In my opinion, this is a typical electrocution 'burn' mark."

"The mark does not have the appearance to me of being an acute electrical burn. It is far more likely to have been derived from a previous injury if it is electrical at all." 25 The Coroner made no reference to Dr Raftos' evidence. The Coroner noted Dr Cala and Dr Andrew's respective qualifications and then observed: "During the course of their evidence both Dr Andrews and Dr Cala maintained the views that they had expressed in their reports. Dr Andrews was, however, prepared to accept the evidence of Mrs Howlett that the injury had not been present when she delivered him to work that morning and was thus not necessarily an 'old burn'. Dr Andrews was also prepared to accept that the nature of an electric burn that occurred through clothing would be different to that of one that resulted from contact between a conductor and an uncovered part of the body. Dr Andrews however reinforced his opinion that in this case the injury "did not look like an electric burn." Dr Cala for his part was also firm in his opinion that the abrasion was typical of an electrical burn and in addition thought, for reasons that he outlined, that it had been received only shortly before death. In this respect he estimated a period of "seconds to a minute."

On the evidence before me I am satisfied that at the relevant time Mr Howlett was wearing the prescribed personal protection equipment which included long sleeves and insulated gloves that appeared to cover the area of the forearm where the injury was located. That equipment should have protected Mr Howlett. Was it possible, however, for Mr Howlett to have received an electrical burn shortly before his death? During the course of the inquest a number of theories were put forward that suggested it was possible. There is no evidence available however to support any of those possibilities. In addition Mr Waldron said that he was watching Mr Howlett and did not see him come into contact with the conductors.

The evidence does not explain the injury that Mr Howlett suffered to his forearm. The existence of the injury is, however, an objective reality. Having considered the evidence of Dr Andrews and Dr Cala it appears to me that having regard to his expertise as a forensic pathologist it is the evidence of Dr Cala that I should accept as having greater credibility in the circumstances. I am satisfied that the injury that was found on Mr Howlett's left anterior forearm was in fact an electrical injury that he sustained shortly before his death.

I am also satisfied that Mr Waldron was wrong when he said that Mr Howlett did not make contact with the conductors. I accept that when Mr Waldron gave evidence he did so in an honest and truthful fashion as to what he believed to be true. His evidence cannot however be correct in the light of my finding that the injury was an electrical burn. Mr Howlett must have come into contact with the conductors in such a way as to result in the creation of a circuit that resulted in him receiving an electric shock. This is the only way he could have sustained the injury that was found. How this occurred and where the current entered and exited his body the evidence does not allow me to say. Notwithstanding this I am satisfied to the standard of proof that I am required to apply that the evidence establishes it did in fact occur." 26 The Coroner came to the finding that: "I am satisfied that Christopher Alan Howlett died on 23 October 2007 at Burringbar NSW. The cause of this death was electrocution that occurred when he came into contact with live electrical conductors in the course of his employment."

The nature of the discretion 27 The construction of s 85 of the Coroners Act must be approached in light of s 3 Objects of Act, which provides: "The objects of this Act are as follows: (a) to provide for the appointment of coronial officers, (b) to provide that Magistrates are coroners by virtue of office, (c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths, (d) to enable coroners to investigate fires and explosions that destroy or damage property within the State in order to determine the causes and origins of (and in some cases, the general circumstances concerning) such fires and explosions, (e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies), (f) to provide for certain kinds of deaths or suspected deaths to be reported and to prevent death certificates being issued in relation to certain reportable deaths, (g) to prohibit the disposal of human remains without appropriate authority." 28 Section 85 provides: " 85 Orders for fresh inquests or inquiries (cf Coroners Act 1980, s 47 (2)) The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice because of: (a) fraud, or (b) the rejection of evidence, or (c) an irregularity of proceedings, or (d) an insufficiency of inquiry, or (e) the discovery of new evidence or facts, or (f) any other reason." 29 The Attorney General's case was that the statutory scheme did not envisage that a person dissatisfied with a Coroner's findings would be entitled to seek a fresh inquest, merely in order to call further expert evidence on matters about which expert evidence had already been led at the first inquest. In order for a new inquest to be ordered, the Court would have to be satisfied that the interests of justice required that a new inquest be ordered. In coming to that view, competing public interest factors had to be resolved. 30 There was a strong public interest in ascertaining the truth about the manner and cause of a person's death. There was also a public interest in maintaining the finality of coronial findings, absent irregularities of a significant kind. Section 85 did not confer any right of appeal, or any right to a rehearing on the merits of matters determined by the Coroner. It followed that the Court's discretion to order a new inquest should be exercised sparingly, only where there was clear evidence of error, irregularity, or new evidence 'discovered' after an inquest. 31 Reliance was placed on the approach of Higgins CJ in Lucas-Smith v Coroner's Court of the Australian Capital Territory [2009] ACTSC 40; (2009) 166 ACTR 42 at [35]:

"In my view, that section applies only to those extreme cases where the entire coronial process is tainted or has miscarried or, as anticipated in the section, new facts or evidence emerge requiring a new inquiry." 32 In this case, on the evidence, there were three findings open, namely that death was the result of electrocution; that death was the result of left coronary artery disease; or that the cause of death could not be established. That the Coroner reached a conclusion available on the evidence, namely that death was caused by electrocution, did not leave open the view that the process had been tainted or miscarried. Nor had new facts or evidence emerged subsequently, which required that a new inquest be held. That the evidence before the Coroner reasonably supported other possible findings different to those made, would not warrant setting aside the findings made. 33 For Country Energy, the case advanced was that the face of the Coroner's decision made it apparent that the conclusion reached was illogical and not reasonably open on the evidence, with the result that it would be concluded that there had been an insufficiency of inquiry (s 85(d)) and that good reason had been established for ordering a fresh inquest (s 85(f)). The circumstances were such that the interests of justice required that a new inquest be held. Additionally, there was new evidence, including new evidence from Dr Cala, the witness on whose evidence the Coroner's finding had turned, which made it apparent that the interests of justice required that a fresh inquest be held (s 85(e)). 34 Reliance was placed on the Court of Appeal's judgment in Herron v Attorney General of New South Wales and Ors (1987) 8 NSWLR 601, where the predecessor to s 85, s 47 of the Coroners Act 1980 was considered. There Kirby J considered the use of the words 'interests of justice' in s 47(2), which provided:

" 47 Powers of Supreme Court to order inquest or inquiry ...

(2) Where an inquest or inquiry has been, or purports to have been, held and the Supreme Court, upon an application made by, or under the authority of, the Minister or by any other person is satisfied that, by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence, or otherwise, it is necessary or desirable in the interests of justice that the inquest or inquiry be quashed and a fresh inquest or inquiry be held, the Supreme Court may order that the first inquest or inquiry be quashed and that instead thereof a fresh inquest or inquiry be held." 35 His Honour observed at 613:

"Those words 'in the interests of justice' are plainly words of the widest possible reference. They enliven a discretionary judgement for the reasons referred but by Mason and Dean JJ in Norbis .

It is true that the "interests of justice" require consideration of the interests of a person affected as the appellant is by a decision to hold a fresh inquest so many years later. His difficulty in preparing for and dealing with all of the matters which may arise at the fresh inquest have to be acknowledged and duly weighed. But as against his difficulties must also be weighed the "interests of justice" that an inadequate or insufficient finding at the first inquest should be set aside. It is also in the interests of justice that the death of the deceased should be re-examined with the benefit of fresh expert opinion now available." 36 The reference to Norbis was to what was observed in Norbis v Norbis [1986] HCA 17; (1985) 161 CLR 513 at 518 - 519:

"The sense in which the terms "discretion" and "principle" are used in these remarks needs some explanation "Discretion" signifies a number of different legal concepts: see, eg, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp 3-10. Here the order is discretionary because it depends on the application of a very general standard -- what is "just and equitable" -- which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

The principles enunciated in House v The King [(1936) 55 CLR 499] were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal." 37 McHugh J observed in Herron at 617:

"In the forefront of matters to be considered in determining whether it is in the interests of justice to hold a fresh inquiry is the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death of Mrs Francis was erroneous. The public interest requires that the finding as to the manner and cause of death of Mrs Francis, if it be an error, should be corrected."

38 In this case, new reputable expert evidence had emerged, which confirmed that the Coroner's finding was wrong. That evidence showed that even the original photographs, on which Dr Cala's opinions had not rested, were not a forensically reliable basis upon which to form a view that the injury to Mr Howlett's forearm was an electrical burn. Additionally, Dr Cala had now examined the original photographs, with the result that while still adhering to his opinion, the basis upon which that opinion rested and the strength of his conviction, had altered in significant ways. Given the Coroner's approach to the resolution of the conflicting evidence before him, this new evidence was of such a kind that it was apparent that the Coroner's finding was erroneous and that the interests of justice required that a fresh inquest be ordered. 39 In my view, the construction of s 85 is relatively straightforward. It requires the Court to be satisfied that the interests of justice require that a fresh inquest be ordered. That satisfaction must be reached in the face of the evidence, as to the matters specified. The Court of Appeal's view in Herron, that the predecessor section contained a wide discretion, applies equally to s 85. 40 Of course such a wide discretion must be exercised on a principled basis, having in mind the competing public interest considerations which arise, whenever an application for a fresh inquest is made. Mere dissatisfaction with a conclusion reached at an inquest, or even that a different conclusion than the one reached, might have been available on the evidence, or even on new evidence subsequently discovered, which supports evidence already before the Coroner in the earlier inquest, may not provide a sufficient basis for the discretion to be exercised. As McHugh J discussed, what must be established is the real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the Coroners Act envisages, namely that the manner and cause of death be determined. 41 For reasons which I will explain, the balance between the competing interests in the finality of coronial proceedings and the establishment of the cause of a person's death, in this situation requires that a fresh inquest be ordered.

Section 85(e) 42 There was also a question raised as to what is meant in s 85(e), by the use of the word 'discovery' of new evidence. 43 The word is not defined. It must be given its ordinary meaning. In the Macquarie Online Dictionary it is relevantly defined as: " 1. the act of discovering. 2. something discovered." Law 44 'Discover' is relevantly defined as: "1. to get knowledge of, learn of, or find out; gain sight or knowledge of (something previously unseen or unknown). 2. to act so as to manifest unconsciously or unintentionally; betray. 3. to make known; reveal." 45 These meanings are consistent with the approach adopted in the authorities, that the discovery of new evidence comprehends not only evidence previously unknown, but also evidence obtained from an expert after an inquest, even in relation to matters dealt with at the inquest. 46 In R v H.M. Coroner for Derbyshire (Scarsdale), ex parte Fletcher (1992) 156 JP 522 the issue determined by the Coroner was whether Mr Fletcher had suffered from pneumoconiosis. It was concluded that he had died from natural causes. That conclusion was reached on the basis of medical evidence. The applicant later obtained other expert evidence that pneumoconiosis had contributed significantly to the death. Section 13(1)(b) of the Coroners Act there provided for a fresh inquest where:

"Where an inquest has been held by him, that (whether by reason, of fraud, rejection of evidence, irregularity of proceedings, insufficiency of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held." 47 It was held by Beldan LJ at 527:

"The effect of the evidence before the coroner was that pneumoconiosis was not a contributory cause of the death. There was thus no evidence to cause him to believe that it was. In that sense the opinions which the applicant has obtained into the course of preparing for her claim against the deceased's employers is clearly new evidence, though I would hasten to add that not every different opinion subsequently expressed by an expert witness upon materials which are available would necessarily qualify for that description.

In my judgment evidence will qualify as new evidence if it was not available at the time of the original inquest, would have been admissible had it then been available, is credible and relevant to an issue of significance in the inquisition. It must also be shown that it might have made a material difference to the verdict recorded at the original inquest. I would hold that the evidence of Dr Rudd and Dr Baithun in the present case qualifies as new evidence."

48 I am satisfied that under s 85(e) there is no necessity that the new evidence discovered be something secret, or unknown at the time of the inquest, or that it deal only with matters or issues not dealt with at the inquest. While not every difference of opinion expressed by another expert after an inquest may lead to the conclusion that a fresh inquest is required, opinions later expressed by an expert about matters dealt with at the inquest, may amount to new evidence 'discovered', subsequently. 49 I accept that in a case where a finding as to the cause of death involves a consideration of conflicting experts' opinions, that a person dissatisfied with the findings made, who is later able to marshal opinions from other experts, which support the views of an expert whose opinion was not accepted by the Coroner, might, in a particular case, be able to establish the 'discovery of new evidence', within the meaning of s 85(e). Whether such new evidence provides a sufficient basis for the conclusion that it is necessary or desirable to order a fresh inquest, in the interests of justice, will require satisfaction that there is a real possibility that the original finding as to the manner and cause of death was erroneous. 50 It may be accepted, as was submitted for the Attorney General, that this involves a reasonably stringent test. 51 Fletcher is an example of a case where an expert's opinion obtained after inquest in relation to a matter about which expert evidence was received at the inquest, was accepted as new evidence which required that there be a fresh inquest, because the new evidence was accepted as being an opinion of a kind which might have made a material difference to the verdict reached. That difference was of such a kind, that the interests of justice required a new inquest. Section 85(e) also leaves open the possibility of a new inquest being ordered in the face of such new evidence. 52 In this case, I am satisfied that the evidence relied on by Country Energy, is new evidence discovered after the inquest, relevant to be considered in determining whether the interests of justice require that a new inquest be ordered.

The case advanced under s 85(d) and (f) 53 The case advanced for Country Energy, that the Coroner's reasoning was palpably illogical and that he fell into a number of patent errors in the conclusions reached, must be accepted. 54 The finding that the cause of death was electrocution, rested on the conclusion that the abrasion on Mr Howlett's arm was a burn. That conclusion rested on the Coroner's view that Dr Cala's evidence was more credible than that of Dr Andrews, because of their respective qualifications. In so resolving the question of the cause of the burn, the Coroner fell into a number of errors, including:

• failing to deal with Dr Cala's own evidence that any conclusion as to the cause of the abrasion had to rest on an examination of photographs taken at the scene. Dr Cala had not examined those photographs.

• determining the cause of the abrasion on the basis of a consideration of the views of only two of the three medical experts who were called to give their opinions on that matter.

• resolving the question of the cause of the abrasion by selecting between the opinions of two of the experts, based on their qualifications, rather than by considering whether any of the expert opinions were persuasive, in light of all of the evidence received at the inquest.

The images on which the opinions rested 55 Dr Cala had been retained by the Crown Solicitor to provide an opinion about the conduct of the post mortem. He agreed with views expressed by Dr Raftos, as to tests which ought then to have been conducted, in order to determine the cause of death. In responding to the Crown Solicitors' question 'whether you consider there are any other relevant matters', in his report Dr Cala volunteered his opinion that images of the injury to the forearm showed that it was 'a typical electrocution "burn" mark.' This opinion rested on the three images with which he had been briefed. They were not original photographs. 56 In his report Dr Cala also expressed the view that a minimum standard for an autopsy involved pathologists themselves taking photographs, as well as those taken by police; that photos should have been taken at this autopsy; that it is very important that all suspected 'burns' or 'abrasions' are examined microscopically to prove or disprove that they are, in fact, due to electrocution; that electrocution 'burns have a very specific microscopic appearance that is usually diagnostic' and that given the deficiencies in the autopsy, a diagnosis of electrocution could now only be made by examination of the relevant photographs. 57 Despite these observations, Dr Cala did not himself examine the original photographs of the injury. He only had access to the copies with which he had been briefed and rested his opinions on them. The difficulty with placing any reliance on Dr Cala's opinions was thus apparent on the face of his report. Dr Cala was not physically present in Court when he gave his evidence and so was not able to be examined on what the original photographs showed. 58 Despite these problems, at one point in his evidence, Dr Cala said that: 'I would have frankly no hesitation in saying that this man in my opinion died as a result of electrocution'. 59 Dr Cala agreed in cross examination, however, that his view did not preclude the possibility that other evidence might discount electrocution as a cause of death, because 'you've got to look at the totality of the situation of the circumstances' and that the events leading to the death had to be considered. Thus the evidence of Mr Waldron that Mr Howlett had made no consideration with live conductors had to be considered, as did the evidence that Mr Howlett was wearing gloves which would have prevented electrocution, if his forearm had made contact with the conductors. 60 Dr Cala also said: "Q. So your conclusion in your report about the cause of death of Mr Howlett is not a conclusion that you put forward to the Coroner as being a conclusion that he can rely upon but rather a mere possibility and that his Honour would have to look at other evidence that is before his Honour, such as the circuitry for example that would need to be present in order for that electrocution to occur.

61 Later Dr Cala said that the injury was an entry wound and that if the gloves were covering Mr Howlett's forearms, it would appear that the injury had not been caused by contact with a live wire. Mr Howlett's arms were also covered by the sleeves of his shirt. If electrocution were excluded, Dr Cala's view was that the injury was a graze of some sort, which was caused by the arm coming up against or striking something. A rope burn from a thin rope was also a possibility, but not a likely one, in his experience. 62 Dr Andrews had been retained by Country Energy to provide an opinion as to the cause of death. His view was that the mark did not have the appearance of an acute electrical burn. He agreed with Dr Raftos' opinions. He also commented on Dr Cala's report, expressing surprise that Dr Cala had reached the conclusion that the injury was a 'typical burn mark', given that Dr Cala had earlier said that a diagnosis required examination of the photographs. 63 The Coroner plainly did not consider that any difficulty arose from Dr Cala not having examined the original photographs taken at the crime scene, nor that he could not be cross examined about what those photographs showed. Nor did he accept Dr Cala's own evidence as to the use which could be made of the opinion which he had expressed. The Coroner preferred Dr Cala's opinions over those of Dr Andrews, on the basis of their respective qualifications, without reference at all to Dr Raftos' opinions. The result of the approach adopted was that Dr Cala's opinion was effectively the sole basis of the Coroner's conclusion that the cause of the injury to the forearm was a burn. That became the foundation for the conclusion that the cause of Mr Howlett's death was electrocution. 64 In adopting that approach, the Coroner fell into error. The expert's opinion which he accepted had no reliable basis, given that Dr Cala had never examined the original photographs taken at the scene.

Failing to consider Dr Raftos' evidence as to the cause of the abrasion 65 The Coroner approached the question of the cause of the abrasion as requiring him to make a choice between Dr Cala's evidence and that of Dr Andrews. Of itself, this approach involved error. 66 Dr Raftos, an expert in emergency medicine, had been retained by the Crown Solicitor to provide an opinion as to the cause of death. His view was that the injury could have been an entry wound resulting from electrocution, or an abrasion caused by something else, but he was unable to come to any conclusion, on the information available. His opinion was that in the circumstances, it was not possible to differentiate conclusively between the two possible causes of death and that on the 'circumstantial evidence', 'acute coronary syndrome was a more likely cause than electrocution'. That was a view to which he adhered in cross examination, where he agreed that the mark on Mr Howlett's forearm could have been an abrasion which resulted from contact with timber, or a rope. 67 The acceptance of Dr Cala's evidence, in preference to that of Dr Andrews, was not explained, other than on the basis that Dr Cala's evidence was more 'credible', given his qualifications. Dr Raftos' opinions were not considered by the Coroner in resolving the difference of opinion between Dr Andrews and Dr Cala, even though Dr Raftos had also been called by the Crown Solicitor, as had Dr Cala. The conflict in their opinions was not considered. Nor did the Coroner consider Dr Raftos' evidence as to the cause of the abrasion, or the possibility that in the face of all of the evidence, its cause and the cause of death, could not be reliably established. 68 In adopting this approach, the Coroner fell into further error. 69 Even in an inquiry not bound by the rules of evidence, a determination of whether or not an expert's opinion is persuasive and should be accepted, depends on a consideration of the facts, assumed or otherwise, on which the opinion rests; whether or not such facts are established by some means at the inquiry; as well as the expert's reasoning process, in relation to the views which are reached. The expert's training, qualifications and experience will also be relevant to a consideration of what weight the opinions expressed should be given. Other facts or opinions which may cast doubt on the views reached by the expert, must also be considered and weighed in the balance, in reaching any conclusion about a matter in issue. An expert's opinion ought not to be accepted, without such consideration being given. 70 In a case such as this, where the cause of an injury is the subject of contested views by medical experts, an acceptance of one expert's opinion over that of another, based solely on that expert's qualifications, risks the result that there is no reliable foundation for the conclusion reached as to the cause of the injury. A failure to consider another medical expert's opinion, also touching on the cause of the injury, can only compound the resulting difficulty.

The approach adopted to the experts' opinions 71 It appears that it was not appreciated that Dr Cala's opinions did not rest on a consideration of the photographs taken at the scene, photographs on which Dr Cala himself had said that any view as to the cause of the injury had to rest, given the absence of photographs taken at the autopsy, or tests having been undertaken, which would have established the cause of the injury. That was a difficulty to which Dr Andrews drew attention in his report, but it was not addressed by the Coroner. 72 Dr Cala also accepted in his own evidence, that his opinions could not provide a reliable basis for the conclusions which the Coroner had to reach as to the cause of the injury to Mr Howlett's forearm, without a consideration of other, more direct evidence. This was also not considered by the Coroner. 73 There was a deal of such other evidence which it was necessary to consider, in determining whether Dr Cala's opinions could be accepted as providing a reliable foundation for the conclusions he had reached, both as to the cause of the abrasion and the cause of Mr Howlett's death. 74 Of themselves, Dr Cala's opinions could not provide a reliable foundation for the rejection of the evidence given by Mr Waldron, as to what he saw. Nor could they provide a reliable foundation for conclusions to be reached about Mr Howlett's forearm having made contact of a kind which permitted a circuit to be formed, with the result that he was electrocuted; or that the protection provided by the gloves Mr Howlett was wearing, when such contact was made, failed. 75 The Coroner expressly accepted that on the evidence, Mr Howlett was wearing safety equipment, insulating gloves, which would have kept him safe from injury, even if his forearm had made contact with a live conductor. His forearm was also covered by a long sleeved shirt. The Coroner noted Mr Waldron's evidence that he was watching Mr Howlett and did not see him come into any contact with any live conductors. While Mr Waldron was on the ground and Mr Howlett was working overhead, there was no suggestion that from his position, Mr Waldron could not have seen Mr Howlett's arm make contact with a conductor, if that had occurred. 76 Mr Waldron's evidence was that immediately before he collapsed and fell backwards in the bucket, Mr Howlett was moving forward in the bucket with his arms out, Mr Waldron thought to move a toolbox inside the bucket out of the way. That was Mr Howlett's practice. The tool box would have been in his way, for the work he had to do next. Mr Howlett would have been able to reach the live conductors from the bucket, but Mr Waldron did not see him working on them, or reaching towards them, before he collapsed. Mr Waldron could see Mr Howlett's arms. Mr Howlett's actions before he collapsed were moving his arms forward, with his hands held out horizontally in front of him, above his waist and below the shoulder, as he moved towards a toolbox in front of him, which was clipped to the side of the waist high bucket. Mr Waldron did not see Mr Howlett move towards the wires outside the bucket. His arms were not extended beyond the edge of the bucket. Mr Waldron did not see Mr Howlett move the toolbox before he collapsed backwards. 77 The evidence was that in order for electrocution to have occurred, it was necessary for Mr Howlett to have made contact with two live conductors, outside the bucket, in order for a circuit to be created. The Coroner accepted that if there were sufficient evidence to establish such contact having occurred, then the cause of death would be electrocution. He concluded that the evidence did not allow him to say that such contact had occurred. Despite this express conclusion, the Coroner implicitly later came to the view that such contact must have occurred, given his acceptance of Dr Cala's opinion that the injury to Mr Howlett's forearm was an electrical burn. Dr Cala's opinion was unquestionably not a reliable basis for such a conclusion to have been reached. 78 The Coroner was also unable to come to any conclusion as to how Mr Howlett could have made any contact with a live conductor, given the gloves which he was wearing. He expressly found that none of the evidence supported any of the theories advanced as to how such conduct could have occurred. Again, despite this finding, having accepted Dr Cala's opinion that the injury to Mr Howlett's forearm was an electrical burn and that the cause of death therefore was electrocution, the Coroner also plainly came to the view that the gloves had failed to protect Mr Howlett, in some unknown fashion. Dr Cala's opinion could not provide a reliable basis for such a conclusion. 79 The eye witness, Mr Waldron, saw Mr Howlett collapse, but did not see any prior contact with any conductor. Again, having accepted Dr Cala's opinion, the Coroner came to the view that Mr Waldron must have been wrong, when he said that Mr Howlett had made no contact with conductors. While Mr Waldron had been truthful in the evidence he gave, the Coroner concluded that it could not be correct 'in light of my finding that the injury was an electrical burn'. 80 As was submitted for Country Energy this was a patently illogical approach to a resolution of what the evidence established as to the cause of the abrasion on Mr Howlett's arm. Dr Cala's opinion could not be accepted as a reliable basis for the conclusion that Mr Waldron was mistaken in the evidence which he gave. 81 Having observed that while the evidence did not explain the injury to Mr Howlett's forearm, the Coroner observed that it was an 'objective reality'. Earlier he had accepted that the cause of the injury might have had no relevance to Mr Howlett's death. The Coroner had accepted Mrs Howlett's evidence, concluding that the injury must have been sustained at work. Mr Waldron's evidence was that he saw nothing that could have caused the injury and Mr Howlett did not mention it to him. Mr Howlett's forearm was covered by a long sleeved buttoned shirt, as well as by the gloves, when he collapsed. 82 The Coroner dealt with the 'objective reality' of the abrasion which he had identified, by accepting Dr Cala's opinions as to its cause, even though those opinions had no reliable basis; were inconsistent with other expert opinions; and also with the evidence of the eye witness Mr Waldron, as to Mr Howlett having been wearing protective gloves which would have protected him from sustaining a burn if he had made contact with a live conductor and there having been no such contact. 83 There can be no question that in so approaching his consideration of the expert evidence, the Coroner fell into further error, with the result that it must be accepted that the interests of justice require that a fresh inquest be ordered. The finding reached had no reliable basis. That conclusion is reinforced by a consideration of what the new evidence shows.

New evidence s 85(e) 84 The new experts' reports deal with matters not considered at the inquest, as well as some matters which were. At the inquest Dr Cala expressed opinions as to the cause of the injury, based on photocopies of the photographs taken by police at the scene, having expressed the view that any opinion could only rest on the photographs. While that was a difficulty to which Dr Andrews drew attention, it was not one dealt with by the Coroner. 85 New evidence as to the unreliability, for forensic purposes, of even the original photographs, is now available. That is clearly new evidence which would have been admissible, had it been available at the inquest. It is also clearly relevant to an issue of significance in the inquest. 86 Dr Ranson practices in forensic medicine. His evidence is that the photographs are substandard and given their deficiencies, he cannot conclude that the features of the injury to Mr Howlett's forearm are typical of an electrocution burn mark. In his view, the cause of death cannot be ascertained on the available medical evidence. 87 Dr Porter is a senior lecturer in forensic medicine, who teaches digital forensic photography, crime scene investigation and complex forensic case studies. He was asked to consider whether the photographs were of a sufficient quality and accuracy to permit reliable photo interpretation of the wound. His examination of the photographs led him to the view that the photographs lacked the critical attributes necessary for accurate forensic photography and posed significant accuracy problems, when used exclusively in an analytical or diagnostic examination. There were significant ambiguities present that could significantly affect the reliability of photo interpretation of the wound. 88 There is also other new evidence, based on the photographs themselves, both from Dr Odell and from Dr Cala, who were given access to the photographs in responding to Dr Odell's first report. This is also new evidence, admissible and relevant to an issue of significance at the inquest, namely what the photographs actually reveal. 89 Dr Odell is also a forensic physician. He concluded that the injury to Mr Howlett's forearm was unlikely to have been an electrical burn, commenting on the absence of features such as charring of the skin surface; thermal damage to surrounding hair; gradation of discolouration which results from the variable temperature distribution that occurs in electrical burns; redness around the central area; and evidence of thermal effects around fine striations crossing the main lesion, which suggested fine abrasions, or scratches, not burns. 90 Dr Cala responded to this report, maintaining his opinion that the injury was caused by electrocution. Having examined the photos, however, his view altered from one that the injury was 'a typical electrocution 'burn' mark', to one that it is not a 'textbook' injury, in which there is superheating of the skin, resulting in a depressed or crateriform central area with raised hardened edges and charring of the skin, although not universally. 91 In cross examination, it became apparent that while still of the view that the injury was caused by electrocution, the certainty which Dr Cala expressed at the inquest as to the cause of the injury and the death, was no longer present. He also agreed that the conclusion expressed in his new written report, might overstate the case. 92 It also became evident that the differences in opinion between Dr Cala and Dr Odell as to what the photographs showed, particularly whether or not striations or scratches across the wound could be seen in the photographs, which would suggest that the injury was caused by a graze, rather than a burn, was the result of the quality of the photographs, or their lack of quality. 93 Mr Blackburn is an Associate Professor from the School of Electrical Engineering & Telecommunications at the University of New South Wales. His report considers what evidence supported the conclusion that Mr Howlett had made any contact with a live wire. His conclusion is that the balance of the evidence for and against possible electrocution led to the conclusion that there was no possibility that Mr Howlett could have been electrocuted by contact with overhead lines. This required evidence that Mr Howlett had had direct contact with two separate electrical lines operating with a differential voltage, so as to cause an electric current to flow through his body. Such contact would have resulted in a severe muscular reaction, given the size of the current to which he would have been exposed, breaking the contact within a fraction of a second. The orientation of the mark on Mr Howlett's forearm, was not consistent with the orientation of any such contact. 94 This evidence is concerned with the possibility of Mr Howlett having made contact with a live wire, and the physical consequences of such contact, including the possibility of a mark on the forearm, of the orientation of the injury which Mr Howlett sustained. This is also new evidence, admissible and relevant, if it had been available at the inquest. 95 In this case, given the basis of the Coroner's findings, it has to be accepted that the use to which the Coroner put Dr Cala's evidence cannot have been anticipated, as Country Energy submitted. That the approach adopted has resulted in the pursuit of new evidence, including as to the reliability of the photographs taken at the scene and the possibility of any contact with a live wire having occurred in the circumstances of the work which Mr Howlett was undertaking, is not surprising, given the conclusions reached by the Coroner. 96 Dr Cala's evidence was used by the Coroner to reject Mr Waldron's direct evidence as to what he saw. Mr Waldron's evidence would be supported by Mr Blackburn's evidence. The other new evidence throws light on whether the Coroner's approach to the resolution of the question of the cause of Mr Howlett's death, could reliably rest on the opinion of Dr Cala. Like the circumstances considered in Fletcher, this case is one where it must be accepted that the new evidence would have made a material difference to the findings to which the Coroner came and that there is a real possibility that the original finding as to the manner and cause of death was erroneous. 97 In the circumstances, the new evidence discovered after the inquest reinforces the conclusion that the public interest in the cause of Mr Howlett's death being accurately established, must outweigh the public interest in the finality of coronial proceedings. While this a conclusion which will never be lightly reached, in this case it is apparent that the interests of justice require that there be a fresh inquest.

Other considerations 98 That regrettable, but to my mind, unavoidable conclusion is reinforced by a consideration of the effect of the Coroner's observations that 'this accident might have been avoided by a number of possible changes in procedures', and that there was always a risk of accidental electrocution whilst so ever the work that was undertaken was done in a live electrical environment. 99 The conclusion which the Coroner reached is a conclusion of the most serious kind, which carries with it potentially serious consequences for Country Energy and others. 100 The Coroner's observations must rest on views formed as to the failure of the safety equipment and work procedures in operation on the day of Mr Howlett's death. The views which the Coroner expressed were not explained further in his findings. It must follow, however, that the Coroner came to the view that Mr Howlett's death from the electrocution occurred as the result of an accident, which different work practices might have prevented. 101 If Mr Howlett's death was not caused by electrocution, but was the result of a heart condition, the other possible cause of death, there was no accident at all. 102 The Coroner's observations make it appear that Country Energy, and perhaps others, were in breach of their obligations under the Occupational Health and Safety Act 2000. In s 8 for example, employers are required to ensure, amongst other things, that systems of work and the working environment of their employees are safe and without risks to health. Section 20 imposes relevant obligations on employees and s 26 deals with the obligations of directors and persons concerned in Country Energy's management. 103 Section 107, Time for instituting proceedings for offences, requires that prosecutions under the Occupational Health and Safety Act be instituted within 2 years of the act or omission alleged to constitute the offence. There is an exception in s 107(3), which provides:

"(3) If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded."

104 Notwithstanding the difficulties with the views to which the Coroner came, the result of his acceptance of Dr Cala's opinions, was not only the view that Mr Howlett died as the result of electrocution, but seemingly, also that his death would have been avoided, had different work practices been in place. It is unlikely that such views would have been reached, if the finding that Mr Howlett's death was the result of electrocution, had not been reached. That the result of the conclusions reached as to the cause of death and Country Energy's work practices, is that it, and others, may now potentially be at risk of prosecution for offences under the Occupational Health and Safety Act, must be accepted. 105 It was submitted for the Attorney General that it was unlikely that any such prosecution would result, given the basis on which the Coroner's conclusions rested. That, it seems to me is difficult to judge, given the discretions which the WorkCover Authority has as to whether nor not to prosecute. It was submitted for Country Energy that it had been advised that there would be a prosecution, but there was no evidence to support that submission. 106 To my mind nothing turns on this. It is the legal consequences of the conclusions reached by the Coroner, which must be considered in weighing the public interest considerations which here arise for consideration. 107 The consequences of the views expressed by the Coroner, in light of s 107 of the Occupational Health and Safety Act, supports the conclusion which I have otherwise reached, that the public interest lies in a fresh inquest being ordered, given that there is here a real possibility that the Coroner's finding as to the manner and cause of Mr Howlett's death and that it would have been prevented, by changes in Country Energy procedures, was erroneous.

Costs 108 The parties did not address on the question of costs. If there is any issue between them as to that matter, they have liberty to approach.

Orders 109 For these reasons, I make the following orders:

1. The inquest touching the death of Christopher Alan Howlett is quashed.

2. The finding reached in the inquest in relation to the cause of Mr Howlett's death is quashed.

3. A fresh inquest into Mr Howlett's death be held.

4. Liberty to approach in relation to costs.

03/11/2010 - error in quote - the word 'contest ??' replaced with 'honest' - Paragraph(s) [19]

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