Merrick v Milledge

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10886/02 - Raymond Walter MERRICK v Jacqueline MILLEDGE

JUDGMENT 1 HIS HONOUR: I have had the opportunity to reflect on this matter overnight, being mindful of its urgency. I think I should state at the outset that I propose to make the order sought in the plaintiff's summons. The plaintiff, Raymond Walter Merrick, was the husband of the late Pauline Margaret Merrick, who died at their home sometime after she retired to bed on 24 March this year. Mrs Merrick had suffered for many years from insulin dependency. She had been treated by her general practitioner, although it appears that his function had been mainly to prescribe her medication. 2 She and the plaintiff had attended over the years seminars conducted by an organisation called Diabetes Australia and also had obtained extensive information about the condition on the Internet. They decided that they would manage her condition themselves and it is probably for this reason that the general practitioner's records over the years contain very few references to any hypoglycaemic attacks of the kind to which diabetics are prone. Nevertheless, it is the plaintiff's evidence that the deceased suffered regularly from what he described as hypoglycaemic fits. It is also his evidence that these were sometimes quite severe, such that he believed they would be life threatening if he were not present to assist her through the event. 3 The deceased had maintained a daily routine of checking her blood sugar level and taking insulin. Both of them worked and, when they were not together, the plaintiff would telephone his wife regularly during the day to ensure her well being. 4 In March of this year they travelled to New Zealand. The deceased returned to Australia on 24 March because of her work commitments. The plaintiff had no choice but to remain in New Zealand, because of his business commitments, although he did wish that the deceased would stay with him. He became aware that something was wrong when he found that he was unable to contact her by telephone. This led to him contacting neighbours, who went to the home and found the deceased on the morning of 25 March. 5 The death comes under the jurisdiction of the Coroner by virtue of s 13 of the Coroners Act 1980. The applicable provisions in the present case are found in s 13(1)(b), that is, that the deceased died of a sudden death the cause of which is unknown, and also (d) that a medical practitioner has not given a certificate as to the cause of death. Despite her long standing diabetic condition her death could be fairly described as sudden. She was only 47 years old and it does seem that, with the assistance of the plaintiff, she had managed her condition quite well. Accordingly, by virtue of the provisions of s 13 of the Act the Coroner has jurisdiction to hold an inquest. By s 14 the Coroner may, nevertheless, dispense with an inquest in most circumstances. However, the present appears to be a case where there must be an inquest because of s 14B(1)(d), as this does appear to be a case in which the manner and cause of death of the deceased has not been sufficiently disclosed. 6 The defendant to these proceedings, Ms Jacqueline Milledge, is the Senior Deputy State Coroner. Pursuant to s 48 of the Act she directed that a post mortem examination of the deceased be performed. The plaintiff objects to that post mortem examination and brings the present proceedings pursuant to s 48A(6) of the Act. That sub-section enables the "senior next of kin" of the deceased to apply to this Court for an order that no post mortem examination be performed. The plaintiff is the deceased's senior next of kin within the meaning of s 4 of the Act. 7 By s 48A(8) I have a discretion to order that there be no post mortem examination, or only a partial post mortem examination, if I am satisfied either of those courses is desirable in the circumstances. 8 The bases of the plaintiff's objections to the post mortem examination are several. Firstly, in his view, that the cause of death is clear. It seems the deceased suffered from no other known medical conditions and the plaintiff himself has no doubt that it was a serious hypoglycaemic attack which brought about her death. Unfortunately, this was an occasion when he was not able to be with her, if such an attack had occurred. 9 Secondly, he relies on the deceased's stated wish that there be no interference after her death with her heart or brain. According to him, she said on many occasions, "My heart and my brain is where my soul is and that is where my love for you is." 10 Thirdly, he relies upon his own desire that his wife's body not be subject to the mutilation which a post mortem examination necessarily involves. It is his intention that her body be embalmed and for a time she be laid in the bed at their home so that he could farewell her. He wishes her body to be available for viewing at an appropriate venue, following which he proposes that she be cremated. This, he says, is an essential part of his grieving process. I say no more than that one can well understand those sentiments. 11 In opposition to the order sought the defendant relies upon the evidence of Dr Peter Ellis, an experienced and well-known forensic pathologist. Dr Ellis observed that the general practitioner's notes did not contain a history of deterioration of the deceased's condition or difficulty in her controlling her diabetes. As I have said, this may be due in a large part to the fact that she and her husband had determined to manage the condition themselves and the general practitioner may well have been ignorant of many incidents which might have been medically significant. 12 On the other hand, Dr Ellis notes that, for the very same reason, there is no scientific basis upon which it can be said that the fits which the deceased underwent were hypoglycaemic attacks brought about by her diabetic condition. The doctor noted that they could have been the result of epilepsy or, indeed, other causes. 13 In particular, the doctor said there was no scientific basis upon which to conclude that her death was the direct result of her diabetic condition. He observed that death from a hypoglycaemic fit is not common. He enumerated a number of possible causes of death, not all of which I need refer to. For example, he mentioned heart disease, to which diabetics apparently are more prone than the general community; a stroke, again to which diabetics are more prone than others. He raised the possibility of pulmonary embolus arising from her being confined on an aircraft on the flight from New Zealand, although he noted that was not a particularly long flight. 14 He raised the possibility of poisoning, accidental or deliberate, for which it would be necessary to examine various bodily fluids of the deceased. I pause here to note that the plaintiff does not object to the taking of bodily samples from the deceased by non-invasive means, such as a catheter, but the evidence of Dr Ellis is that that is unlikely to be sufficient to enable him to undertake the investigation which would be necessary. 15 The discretion conferred upon this Court by s 48A of the Coroners Act is a broad one and there appear to be relatively few cases on it. 16 I was referred to Abernathy v Deitz (1996) 39 NSWLR 71. That case was decided before s 48A was enacted. It concerned the discretion of the coroner to order a post mortem and in that context Mahoney JA, who gave the leading judgment, had this to say (at p 708): "It is, in my opinion, proper for a coroner, in determining whether to direct a post-mortem, to take into account the legitimate wishes of the person to whom the body has been committed by law, namely, the legal personal representative and, at least in some cases, the members of the deceased's immediate family. The legislature could not have intended that their wishes be ignored. Ordinarily it is not necessary that the coroner seek out the wishes of others in this regard. But where those wishes are known to him, it will ordinarily be appropriate that he take them into account. Where, for example, a post-mortem would provide only marginal assistance in the discharge of the coronial functions, the fact that a post-mortem would cause deep distress to the legal personal representative or relevant family members may be sufficient to warrant the coroner not directing a post-mortem."

17 I have also been referred to the Victorian decision in Green v Johnstone (1995) 2 VR 176, a case dealing with a Victorian provision analogous to s 48. More significantly, I have been referred to a decision of Wood CJ at CL dealing with s 48A. That is the decision of Krantz v Hand [1999] NSWSC 432. 18 None of these cases is on all fours with the present case. In particular, Green v Johnstone and Krantz v Hand were concerned with objections to the conduct of a post mortem based upon strongly held cultural or religious beliefs. That is not the present case. Nevertheless, they provide some guidance in the exercise of the discretion conferred upon me. Of significance, in my view, is a passage in the judgment of Wood CJ at CL in Krantz v Hand at para 41. His Honour noted that it was proper to have regard to the views of the family of the deceased, although they could not be determinative of the question at hand. His Honour went on to say: "In some circumstances, it may be that there is evidence pointing to foul play, which would need to be investigated, in order to ensure execution of the due process of the law. In other circumstances there may be evidence of a possibility of an outbreak of a serious infection which would need to be investigated in order to cater for public health interests. Additionally there may be cases where it could be in the interests of the immediate family of the deceased to determine whether there is some genetic predisposition to serious disease, that might possibly be treated or detected in its early stages if the possibility of its onset is known."

19 Of course, there may also be cases where the proper investigation of the cause of death is necessary because the death is a matter of public concern, such that the coroner's recommendation might prevent other deaths of the same kind. In that regard Ms Pinch, who appears for the defendant, raised two such possible issues in the present case: firstly, the desirability of self-management of diabetic conditions, and secondly, the possibility of pulmonary embolus resulting from a relatively short flight, such as that from New Zealand to Australia. I can see the force of those matters but they do not dissuade me from my conclusion that it is desirable in the present case that no post mortem examination be performed. 20 I have reached that conclusion primarily because there is, on the material before me, no suggestion of foul play, nor, I might add, is there any material suggesting suicide. The only question which a post mortem might answer is which of a number of possible natural causes was the cause of Mrs Merrick's death. It may well have been a hypoglycaemic attack, but I accept one could not be confident of that without a post mortem examination. 21 I do not suggest that determination of the precise cause of death is not an important matter. Nevertheless, it appears to me that the balance falls in favour of observing the wishes of the deceased herself, and of the plaintiff, in the peculiar circumstances of this case. Accordingly, within the terms of the sub-section, I am satisfied that it is desirable, in the circumstances, that no post mortem examination be performed. 22 I make the order set out in para 1 of the summons.

(No application for costs) 23 I express my appreciation to counsel on both sides for the responsible and sensitive way in which they have argued a very sad and difficult case.

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