Plaintiff v Defendants

1 The plaintiff seeks judicial review of the finding of Coroner Caitlin English ('Coroner'), then the Deputy State Coroner, delivered on 2 September 2021 ('second finding') following an investigation and inquest into the death of Robena Lloyd, aged 58 years, at Angliss Hospital on 7 August 2009, conducted under the provisions of the Coroners Act 2008 (Vic) ('Act').[1] The plaintiff is a former registered nurse, and was Ms Lloyd's elder sister and full-time carer from 2003. Ms Lloyd was intellectually disabled and required continuous care. She had been institutionalised for much of her life, and had a history of medical and psychiatric involvements including treatment for schizophrenia.

2 Ms Lloyd's death was originally investigated by a previous coroner resulting in a Finding into Death Without Inquest in June 2013 ('first finding').[2]

3 The plaintiff has made a number of applications to the Coroners Court and this Court seeking to set aside the two coronial findings.

4 In December 2013, the plaintiff applied to set aside the first finding. This was refused by the previous coroner in June 2014. In July 2014, the plaintiff appealed to the Supreme Court to set aside the first finding. The appeal was dismissed in April 2015.[3] An appeal from the April 2015 decision was also dismissed.[4]

5 In March 2016, the plaintiff made a second application to set aside the first finding. This was again refused by the previous coroner. An appeal by the plaintiff against the decision to refuse to reopen the first finding was dismissed in May 2017 by a Judge of the Trial Division.[5] The plaintiff then appealed to the Court of Appeal. The appeal was successful.[6]

6 The principal medical findings of the previous coroner which were of concern to the Court of Appeal may be summarised as:

(a) the finding that the medical management of Ms Lloyd on 5 August 2009 was reasonable in what the previous coroner described as a very difficult setting of chronic behavioural disturbance and chronic medical illnesses ('primary finding');[7]

(b) the finding that it cannot be concluded that checking Ms Lloyd's urine for infection would have prevented her re-presenting in septic shock and the tragic outcome ('secondary finding');[8] and

(c) the finding that following Ms Lloyd's discharge from the Angliss Hospital on 5 August 2009, and with the knowledge of her past medical history, there was no indication that Ms Lloyd would re-present just 40 hours later with overwhelming sepsis and in renal failure.[9]

7 The Court of Appeal made extensive reference to the opinion and evidence of Dr Patrick Dewan who challenged the previous coroner's findings. The Court of Appeal referred to Dr Dewan's opinion at length concluding that his report was not merely a competing medical opinion that simply recorded a disagreement on medical issues, but, as a matter of substance, it served to shift the weight of the evidence about the treatment of Ms Lloyd and the basis on which the findings had been made. The reopening of the investigation would allow a new coroner to test whether the primary and secondary findings were made on an accurate and fully informed basis.[10]

8 The Court of Appeal delivered a joint judgment. In a concluding paragraph, it said:

We consider that the refusal of the Coroner, made on 24 June 2016, to re-open the investigation should be set aside, pursuant to s 84 of the Act, on the ground that it involved an error on a question of law, under s 87, involving a misconstruction, and misapplication, of the statutory criterion under s 77(3)(b). We also consider that the refusal to re-open the investigation should be set aside, pursuant to s 87A of the Act, in that it is desirable, in the interests of justice, that the investigation be re-opened, in particular to resolve the factual dispute with respect to the circumstances of Ms Lloyd's discharge from the Hospital and the regime to be followed at her home, including the clarity of the communications involved. It will also be necessary to gauge whether the 'setting of chronic behavioural disturbance' affected Ms Lloyd's treatment, and, if so, to what extent it did so.[11]

For the purpose of re-opening the investigation, all the findings of the Coroner should be set aside, including the primary and secondary findings, so that the investigation is not pursued within a restricted framework. Many of the findings made by the Coroner are inter-mingled and, directly or indirectly, bear upon the issue of the reasonableness of the care given to Ms Lloyd, especially in relation to her discharge from the Hospital on 5 August 2009. This is not to say that any of the findings were wrong in that they were made against the weight of the evidence but rather to conclude that all of the findings should be set aside to allow an open fresh investigation to take place. It may be that after a comprehensive re-investigation some or all of the findings made by the Coroner to date are confirmed. In any event, the aim should be to ensure that whatever findings are made, upon the re-opening of the investigation, they are made on an accurate and fully informed basis.[12]

10 By an order made on 2 August 2018, the Court of Appeal relevantly ordered:

1. The appeal to the Supreme Court under s 84 of the [Act] is allowed.
2. The refusal of the Coroner, made on 24 June 2016, to re-open the investigation into the death of Robena May Lloyd ... is set aside.
3. Pursuant to s 87(4) of the [Act], the matter is remitted to the Coroners Court of Victoria, with a direction that all of the findings of the investigation be set aside and the investigation be re-opened.
4. The re-investigation is to be constituted by a different coroner from the coroner who undertook the investigation.

11 Following the decision of the Court of Appeal, the Coroner undertook a fresh investigation. In the second finding, her Honour observed that:

In the light of the Court of Appeal's comments about a fresh investigation, the factual disputes regarding medical care and communication, as well as the potential impact of Robena's 'behavioural disturbance' on her receiving medical care, a new coronial brief was compiled.[13]

12 A good deal of work was done to expand and enhance the coronial brief. New or additional witness statements were obtained from the plaintiff and other witnesses including medical practitioners. Expert medical reports were obtained including reports from an experienced emergency physician, consultant nephrologist, forensic pathologist, and paediatric surgeon with expertise in paediatric urology. An expert report was obtained from Professor Julian Troller, a neuropsychiatrist with experience in treating people with intellectual or developmental disabilities and complex health needs. Information was obtained from the Department of Health and Human Services and the National Disability Insurance Scheme as to the services available for people with intellectual disabilities, and an expert report was compiled addressing the possibility of a link to neuroleptic malignant syndrome.[14]

13 As part of the fresh investigation, the Coroner determined to hold an inquest. Her Honour considered that forensic examination was required to determine factual discrepancies, and to hear evidence concerning Ms Lloyd's medical care and treatment as well as expert medical evidence about whether the care was reasonable and appropriate. The Coroner also called expert evidence regarding issues surrounding the care and treatment of people with intellectual disabilities in mainstream medical settings.[15]

There were many factual discrepancies raised in the course of the evidence. I have referred to them under headings 'factual discrepancies'. Some are noted for the record, and where these discrepancies are relevant to the circumstances of Robena's death I have made findings, according to the weight of the evidence. As [the plaintiff] was both witness and advocate, all of the factual discrepancies were important to her, however not all were relevant to my statutory duty to make findings pursuant to section 67 of the Act.[16]

15 The Coroner conducted directions hearings on 29 September and 21 December 2020. The plaintiff was represented by counsel at the first hearing, but subsequently represented herself. The Coroner distributed a draft scope of the inquest and draft witness list in advance and heard submissions from the plaintiff as to her views on the scope of the inquest and the witness list.[17]

16 At the directions hearing on 29 September 2020, the Coroner made the following introductory remarks:

I have had the carriage of this investigation since late 2019, I am particularly mindful of the Court of Appeal's decision, not only regarding the error of law, but that, and I quote 'It is desirable in the interests of justice that the investigation be reopened, in particular to resolve the factual dispute with respect to the circumstances of Ms Lloyd's discharge from hospital and the regime to be followed at her home, including the clarity of communication involved. It will also be necessary to gauge whether the setting of chronic behavioural disturbance affected Ms Lloyd's treatment and if so to what extent it did so.'

The Court of Appeal acknowledged the distress occasioned by the refusal to reopen which involved an error of law and that the finding should be set aside in the interests of justice. The decision recognised that effective relief was not realised by referring the case back to the court for the correct statutory test to be applied, but to reopen the investigation by someone with fresh eyes for justice to be seen to be done.

Further, the court noted that the original finding having been set aside any findings made should be made on an accurate and fully informed basis. So as part of the fresh investigation I took into account what the Court of Appeal has said. First of all in respect of the benefit of the expert, the court's expert Dr King, having the benefit of reading Dr Dewan's report. Unfortunately Dr King has now retired but I will just summarise the investigations that have taken place.

Dr Jason Harney, an emergency physician at Sunshine Hospital, has provided an expert report regarding Ms Lloyd's presentation to Angliss Hospital. Psychiatrists Professor Newton has provided an expert report regarding neuroleptic malignant syndrome and whether that played a role in Ms Lloyd's death. A further statement has been obtained from Michael Brand via Leading Senior Constable Ross Treverton.

In light of the reports that have been provided to the court from Mrs Mortimer's expert Dr Dewan, I am now seeking an expert report from an expert nephrologist. In respect of the concerns raised by Dr Dewan regarding matters in the medical examiner's report, the Deputy Director at the Victorian Institute of Forensic Medicine, has been asked to provide a further updated medical examiner's report, and a public interest issue that has been championed by Mrs Mortimer and noted by the Court of Appeal regarding the extent to which Ms Lloyd's chronic behavioural disturbance affected her treatment has been identified as warranting further investigation as a result of the coronial investigation.

And the question has been posed, how does the medical profession respond to people with an intellectual disability or combined disabilities so that they can access equitable medical care in mainstream health settings such as emergency departments.

To that end I am seeking advice from the Department of Health and Human Services, the National Disability Insurance Scheme and also an expert report, [from] a specialist in the area from New South Wales.

(i) Was the medical care reasonable and appropriate in the circumstances of Robena's presentation?

(ii) Was it reasonable not to admit Robena to hospital?

(b) 5 August 2009:

(i) Was the medical care reasonable and appropriate in the circumstances of Robena's presentation?

(ii) Was it reasonable not to admit Robena to hospital?

(iii) What were Robena's carers told regarding care for Robena and the regime to be followed at home?

(iv) What was the impact, if any, of Robena's intellectual disability upon her care and treatment?

(i) Was the medical care reasonable and appropriate in the circumstances of Robena's presentation?

(ii) What advice did Dr Agaskar provide Mrs Mortimer in respect of Robena's condition?

(i) What was Robena's presentation on the morning of 7 August 2009?

(i) What are the risks and barriers for people with an intellectual disability accessing mainstream health services and receiving equitable care and treatment?

(ii) What are the current advances in this area, and what advice can be provided about ways to improve access to services and the quality of care experienced by people with an intellectual disability and their family/carers?[18]

18 The inquest was heard over five days commencing on 8 February 2021. Evidence was heard from 12 witnesses. The Coroner observed that the examination of the facts was not assisted by the passage of time as it was more than 11 years since Ms Lloyd's death.[19] The inquest heard concurrent expert evidence from three experts who considered a set of prepared questions regarding Ms Lloyd's medical care.

19 The Coroner found that the identity of the deceased was not in dispute and did not require investigation.[20]

20 As to the cause of Ms Lloyd's death, her Honour accepted the forensic pathologist's report and concluded that a reasonable cause of death was 'enterococcus faecalis sepsis and acute renal failure'. There was no dispute about the cause of death.[21]

21 The Coroner made extensive findings as to the circumstances in which the death occurred in accordance with the scope of inquest.[22] The findings were arranged in a structured manner. For each day of treatment, her Honour set out a summary of the evidence, pointing out factual discrepancies and competing arguments, and then stating conclusions and reasons.

22 The Coroner made two recommendations under s 72(2) of the Act, that:

(a) the Secretary of the Victorian Department of Health [give] consideration to formulate an action plan to mandate skills training for health professionals in the private and public health care sectors about the health needs of people with intellectual and other cognitive disabilities to address the lack of specific content around the health needs of people with intellectual disability in nursing and medical courses in this State, given Professor Troller's evidence ... that a recent audit revealed over 20 years there had been no improvement in content, and in some instances it had gone backwards; and

(b) the Victorian Health Minister give consideration to the establishment of a 15-bed facility (possibly as part of the Victorian Dual Disability Service), for in-patient services for people with dual disabilities, including intellectually disabled adults like Robena, along the lines originally announced so that their medical needs can be addressed when they are ill.[23]

23 The plaintiff seeks an order for certiorari quashing the second finding, and an order in the nature of mandamus remitting the matter back to the Coroner.

24 The plaintiff contends that the Coroner made an error of law on the face of the record, in that she failed to investigate properly, or at all, matters which had been referred to her by the Court of Appeal, in particular:

(a) the Coroner failed to investigate properly, or at all, whether the setting of chronic behavioural disturbance affected Ms Lloyd's treatment, and, if so, to what extent it did so ('Ground 1'); and

(b) the Coroner failed to investigate properly, or at all, the factual dispute with respect to the circumstances of Ms Lloyd's discharge from the hospital and the regime to be followed at her home, including the clarity of the communications involved ('Ground 2').

25 The plaintiff made it clear that the proceeding was solely an application for an order for certiorari for error on the face of the record under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). As such, it is a proceeding of the type discussed in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw.[24] The plaintiff did not allege jurisdictional error, or that the Coroner had acted unreasonably in the sense discussed in Minister for Immigration and Citizenship v Li,[25] or had failed to take into account relevant considerations, or had taken into account irrelevant considerations as discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[26] The plaintiff also made it clear that the proceeding was not an appeal to the Supreme Court under pt 7 of the Act.

26 The second and third defendants were joined as defendants in the proceeding by order made on 17 May 2022. Dr Agaskar, the second defendant, attended Ms Lloyd on the evening of 6 August 2009. Eastern Health, the third defendant, is the operator of Angliss Hospital, where Ms Lloyd was a patient prior to and at the time of her death.

27 The plaintiff relied on her own affidavits filed 22 October 2021 and 10 November 2021. Lindsay Spence, a principal in-house solicitor of the Coroners Court, deposed in three affidavits as to the coronial investigation and inquest, producing the inquest brief, transcript, exhibits, and written submissions made to the Coroner. The second and third defendants relied on affidavits of their solicitors to establish their interest in this proceeding.

The coroner holding the inquest determines -

(a) the witnesses to be called; and

(b) the relevant issues for the purposes of the inquest.

29 Section 67(1) of the Act sets out the findings required of a coroner investigating a death:

A coroner investigating a death must find, if possible -

(a) the identity of the deceased; and

(b) the cause of death; and

(c) ... the circumstances in which the death occurred ...

30 Section 67(3) of the Act provides that a coroner 'may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.'

31 Section 69(1) of the Act relevantly provides that a coroner 'must not include in a finding or comment any statement that a person is, or may be, guilty of an offence.' Similarly, findings should not be based on possible or probable civil liability.[27]

32 As to recommendations, s 72(2) of the Act provides that:

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

33 Section 87 of the Act concerns appeals to the Supreme Court. Concerning the Supreme Court's power of remitting a matter to the Coroners Court for re-hearing, it provides that:

(4) Subject to section 88, after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the matter for re-hearing to the Coroners Court with or without any direction in law.

(5) An order made by the Supreme Court on an appeal under this Part, other than an order remitting the matter for re-hearing to the Coroners Court, may be enforced as an order of the Supreme Court.

34 The plaintiff placed great store on the fact that in an application for an order of certiorari for error of law on the face of the record, the Court is confined to a consideration of the record. As no other claim for relief was made, the plaintiff submitted that most of the documentation before the Coroners Court could not be considered by this Court, as it did not form part of the record.

35 The remedy of certiorari is available for any error of law on the face of the record, even one which does not go to jurisdiction.[28] However, relief in the nature of certiorari remains discretionary.[29]

36 The remedy of certiorari can be traced as far back as the fourteenth century. The primary function of the remedy of certiorari in this context is to enable a superior court to quash the legal effect of an order or decision made by a lower court where it can be established that that order or decision was affected by a non-jurisdictional error of law 'on the face of the record'. Determining precisely which documents constitute the record for the purposes of an application for such relief is critical. However, as the High Court observed in Kirk v Industrial Court (NSW), '[t]he decided cases reveal a degree of uncertainty about ... what is the "record" on the face of which error must appear.'[30]

37 In Craig v South Australia, the High Court analysed and set out the position at common law:

The determination of the precise documents which constitute "the record" of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that "[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication". Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record.[31]

38 Any material beyond this, including the transcript of proceedings, exhibits or the reasons for decision, will not ordinarily form part of the record.[32] However, the lower court or tribunal is not precluded from choosing to incorporate the transcript and its reasons into the record by reference.[33] Documents may be incorporated into the record where a formal order or decision cannot be adequately understood without reference to them.[34] Incorporation in this manner is confined to that part of the document referred to in a way which brings about its incorporation as an 'integral part' of the order and the record.[35] A mere introductory or incidental reference to such a document is insufficient.[36]

39 The High Court outlined the rationale for so confining the content of the record as being to prevent the transformation of certiorari into a discretionary general appeal for error of law 'upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error.'[37]

40 The position in Victoria is broader than that at common law, due to s 10 of the Administrative Law Act 1978 (Vic) which provides that:

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

41 This expanded definition of the record also applies in proceedings brought under the common law or pursuant to ord 56 of the Rules.[38]

42 The statutory definition can include statements made by a lower court or tribunal during the course of argument if such statements are in the nature of reasons for decision, regardless of whether formal reasons are provided later or not.[39] However, a distinction must be drawn between statements of this nature and statements made or views expressed by a judge or tribunal member while 'engaging in a discussion with counsel with a view to ultimately formulating [his or her] final decision.'[40]

43 It has been observed that the statutory expansion of the record in Victoria must not be understood as providing a mandate for courts to 'scour' evidence and exhibits from lower courts.[41]

44 A statement in the reasons of a court or tribunal to the effect that it is satisfied or not satisfied of a fact does not incorporate the evidence relating to that fact into the reasons. In Kuek v Wellens, the Court of Appeal held that the record for the purposes of judicial review of a decision of the County Court could not be expanded to include all of the evidence which was before the County Court for the purposes of challenging a conclusion reached by the County Court.[42]

45 Additional documents may be incorporated into the record by reference where necessary to enable a proper understanding of the reasons.[43] In O'Connor v County Court (Vic), Kaye J observed the following in the context of a judicial review of a decision of the County Court:

[O]rdinarily, a reference by a lower court or tribunal, in its reasons, to particular aspects of the evidence before it, does not, of itself, constitute that evidence as part of the record of the lower court or tribunal. However, in this case, the judge's ruling was expressed in a manner which assumed a knowledge by the persons, to whom it was addressed, of the contents of the three items of evidence to which I have referred. In that way, the reference by the judge, to those three items of evidence, was, I consider, a shorthand method by which the judge specifically incorporated them into the reasons, and thus into the record of the court.[44]

46 In oral argument, I was referred to the decision of the New South Wales Court of Appeal in HCCC v Abou Hatoum,[45] where Meagher JA referred to the need for a plaintiff seeking to invoke the procedure for judicial review under the New South Wales equivalent of ord 56 of the Rules to prove either that there has been jurisdictional error, or that there has been non-jurisdictional error on the face of the record.[46]

47 Handley JA considered the question of whether the Court was entitled to look at the expert evidence before a medical tribunal in exercising its jurisdiction to review the record of the tribunal for legal error on its face.[47] His Honour held that the relevant passage in the Tribunal's reasons was ambiguous and on one interpretation would involve legal error. The ambiguity could be resolved by reference to the relevant expert report. If this were done, it became clear that the tribunal did not make the error alleged.[48] Handley JA held that this process did not involve impermissible resort to an extrinsic document which had not been incorporated into the record to identify legal error in the document which was then sought to be used to attack the record. Rather, the process involved the interpretation of the reasons of the tribunal by reference to surrounding circumstances known to the tribunal and the parties.[49]

48 In the present case, the plaintiff objected to the receipt into evidence of all documents relating to the Coroners Court proceedings except for the second finding. I uphold the plaintiff's objection, and hold that the record for the purposes of the plaintiff's application should relevantly be confined to the second finding. It was not suggested by any party that the second finding suffered from any lack of clarity or ambiguity, or incorporated extrinsic material by reference. Nor was it suggested that the second finding in some way required resort to extraneous material such as the transcript of evidence of the inquest, or statements, exhibits or submissions before the Coroner. I will not have regard to any of this material.

Ground 1: Did the Coroner fail to investigate properly, or at all, whether the setting of chronic behavioural disturbance affected Ms Lloyd's treatment and if so to what extent it did so?

49 The Coroner described Ms Lloyd's mental health as deteriorating sharply in 2009 and her weight as dropping dramatically, compounded by bowel problems. The plaintiff described Ms Lloyd's psychiatric illness at the time as shocking.[50] It was against this backdrop that the coronial investigation considered Ms Lloyd's medical care from 31 July 2009 until her death on 7 August 2009.[51]

50 The Coroner made factual findings as to the decision not to admit Ms Lloyd to the Angliss Hospital on 31 July 2009. The Coroner noted the plaintiff's evidence that Ms Lloyd was unwell and very distressed and that the plaintiff agreed with the statement in the hospital records describing Ms Lloyd as aggressive and hitting at staff.[52] Dr Phiri who treated Ms Lloyd on 31 July 2009 in the Emergency Department of Angliss Hospital said in a statement to the coronial investigation that on examination Ms Lloyd did not appear distressed. He said that there was no need for Ms Lloyd to be retained for a trial of void, noting that given she had an intellectual disability it is likely that she would have been more comfortable in her home with her family.[53]

51 The Coroner made a series of factual findings as to the extent of Ms Lloyd's chronic behavioural disturbance on 5 August 2009 when she attended the Emergency Department at Angliss Hospital. They embraced:

(a) the evidence of Ms Gramaticu, a registered nurse, who described Ms Lloyd as 'calm and quiet' during her shift between 10:00am and 11:15am;

(b) the evidence of Ms Goode, a registered nurse, who was then responsible for Ms Lloyd until about 1:00pm. She could recall a few things about Ms Lloyd and did not recall having any concerns about the way she presented; and

(c) the evidence of Ms Lancaster, who was the registered nurse responsible for Ms Lloyd until her discharge at 4:30pm. She observed Ms Lloyd to be restless and wandering around the department in an agitated manner. She found it difficult to assess Ms Lloyd due to her disability and the fact she was in an agitated state. At 2:30pm, Ms Lloyd appeared more settled. Ms Lloyd was co-operative at 3:15pm when a bladder scan was performed. Ms Lancaster said that she could visualise Ms Lloyd in her agitated state as she walked around the department. Although Ms Lloyd did not void at all during her stay, the doctor was happy for her to leave, noting that she was producing urine despite not having voided.[54]

52 The Coroner noted the factual discrepancies in the evidence about Ms Lloyd's symptoms and demeanour. They included:

(a) Ms Young, Ms Lloyd's carer, described Ms Lloyd as being agitated. Dr Pearson, the staff specialist in the Emergency Department at Angliss Hospital, noted in the record 'calm for Robena'. There was no description of agitation in the nursing or medical notes. The Coroner observed that Ms Young's description accorded with that of Ms Lancaster who also described Ms Lloyd as agitated.

(b) Ms Young said that 'both Gary & I had to walk [Ms Lloyd] round for at least 5 hours as she was very agitated, the reason for that was she was in agony [and] it was her way to show us how sick she was'.

(c) Ms Young stated that because Ms Lloyd was intellectually challenged and showing aggression her concerns were ignored.[55]

53 The Coroner observed that Dr Pearson did not recall Ms Lloyd presenting in the way described by Ms Young. There were no notes in the medical or nursing record to this effect. Dr Pearson expressed extreme surprise that the carers stated that Ms Lloyd was distressed. He said that certainly was not his impression or that of the nursing staff.[56]

54 The Coroner also made factual findings about Ms Lloyd's situation when she was attended by doctors on 6 August 2009. Mr Brand, who was one of Ms Lloyd's carers, recalled that around 7pm when the locum doctor arrived Ms Lloyd was awake, yelling and screaming rather than in bed. He said he cleaned out Ms Lloyd's stoma bag and showered her. In her evidence, the plaintiff denied that Mr Brand had done so. She denied that Ms Lloyd was screaming and stated that she had been a lot quieter after her medication was changed.[57]

55 The Coroner found that Ms Lloyd's condition rapidly deteriorated between Dr Agaskar's assessment on the night of 6 August 2009 and her collapse on the morning of 7 August 2009, reflecting the potentially rapid and irreversible nature of her disease.[58]

56 The Coroner then considered the impact of Ms Lloyd's intellectual disability and her medical care. Her findings were as follows:

Mrs Mortimer expressed her concern during the evidence that some of the medical records, (encompassing Robena's medical treatment at the Alfred, Maroondah and Angliss Hospitals during 2009) referred to Robena having 'social admissions' to hospital. Mrs Mortimer was of the view these references suggested Robena was not admitted to hospital for a medical purpose and carried an imputation that both she, as carer, and Robena were a 'nuisance' to the hospital staff. Mrs Mortimer referred to work Dr Dewan had [compiled] confirming that all Robena's admissions to hospital had a valid medical basis.

Mrs Mortimer's other concerns related to Robena not being given pain medication, but rather sedatives instead of pain relief, and the imputation in some of the medical records that Mrs Mortimer did not always adhere to Robena's medical management plan. As far as the evidence traversed some of these topics, I took it into consideration with regards to the inquest scope as it related to a consideration of the treatment of people with intellectual disabilities within mainstream medical practice.

In his evidence Dr Pearson apologised for any perception Mrs Mortimer had that she was seen as a 'pest' or that her concerns were dismissed, '... it's not the values of Eastern Health. And we do put the patient first and obviously try and provide great care everywhere all the time.' Further, when Mrs Mortimer described Robena as in pain from a torted bowel, Dr Pearson expressed his disappointment she was not given adequate pain relief. Mrs Mortimer stated Robena was given so many sedatives she ended up with pneumonia.

In another example, Mrs Mortimer believed she had been accused of telling lies because a nurse (Gwen) rang the Crisis Assessment and Treatment Team that was visiting Robena every day and stated to them that Robena was not in urinary retention. Further, Mrs Mortimer stated Dr Koolstra (on an earlier presentation) referred to Robena's bowel problems as 'all in her mind' and that she was 'perserverating' about her bowels. Mrs Mortimer also stated Dr Koolstra said he would contact the Guardianship Board to have her removed as Robena's guardian and wrote that he had to 'reinstate' Robena's medication.

None of the evidence from Dr Phiri, Dr Pearson or Dr Agaskar indicated their treatment of Robena was sub optimal or influenced negatively by the fact she had a dual disability namely a mental illness and an intellectual disability.[59]

57 The Coroner's conclusion was that the treatment of Ms Lloyd was not sub-optimal or negatively influenced by the fact that she had a mental illness and an intellectual disability. The Coroner based this conclusion on the evidence of Dr Phiri, Dr Pearson and Dr Agaskar, each of whom had treated Ms Lloyd.[60]

58 The Coroner then made findings as to the risks and barriers for people with an intellectual disability accessing mainstream health services and receiving equitable care and treatment. These findings reflected the evidence of Professor Troller, who had 25 years of clinical experience treating people with intellectual or developmental disabilities and complex health needs. I will set out some of the Coroner's findings as to the risks and barriers for people with intellectual disabilities:

Professor Julian Troller prepared an expert opinion at the request of the court. Dr Troller is a neuropsychiatrist, with 25 years of clinical experience treating people with intellectual or developmental disabilities and complex health needs, and over 30 years' experience as a medical practitioner. Professor Troller's evidence set out the areas where services provided to those with intellectual disabilities and their families can be vastly improved.

Professor Troller's report noted Australians with intellectual disability have a reduced life expectancy and elevated comparative mortality rates that exceeds other groups in society with health disadvantage. Most of the health disadvantage is unrelated to aetiology of the intellectual disability and in NSW the average life expectancy is 54 years, versus 81 years for the general population, representing a 27-year life expectancy gap. Professor Troller also noted younger onset frailty, in that those over 50 with intellectual disability have similar rates of frailty as the general population over the age of 75.

Relevant to this case, Professor Troller noted Australians with intellectual disability are overrepresented in the health service system, with:

'1.6 times the rate of emergency department use compared to people without ID and were more likely to present into the health system via emergency department presentation suggesting poorly managed primary care needs.'

He also raised relevant issues including the absence in mainstream health and mental health services of clearly defined clinical care pathways, a lack of skills or resources to make 'reasonable adjustments' to support inclusion of the persons with a disability in their health care journey, inadequate training for student nurses and doctors in understanding the specific health care needs of people with intellectual disability and little formal training for ED registrars and physicians. Professor Troller also referenced poor access by people with intellectual disability to preventative health care, hampered by models of practice in primary care, such as inadequate Medicare Benefits remuneration for GP's when they see people with intellectual disability and complex conditions in prolonged consultations.

Professor Troller noted people with an intellectual disability experience one of the greatest health disadvantages of any population group in Australia. He quoted the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a disability which has made the substantive finding:

'the evidence justifies the Royal Commission finding that people with a cognitive disability have been and continue to be subject to systemic neglect in the Australian health system. We make that finding.'

In his evidence Professor Troller noted:

'that overall a very high proportion of deaths for people with intellectual disability were potentially avoidable and that the proportion of deaths that were potentially avoidable was about double that of the general population.'

A 'potentially avoidable death' is one occurring for people under the age of 75 when medical intervention or access to healthcare could have prevented the death occurring.

Professor Troller also gave evidence about 'overshadowing,' which means when a person's disability is seen first, and health needs remain unrecognised. This may be because the health care professional has had little or no training in the area and may not know how to adjust their clinical approach to communicate effectively. Pain might be expressed as heightened distress, or self injury or irritability and someone who is inexperienced 'may conclude that this change in behaviour relates to the disability, and not to her health condition.'

This issue was reflected in evidence from Mrs Mortimer that she often felt Robena was sedated rather than receiving appropriate pain relief.

With respect to training Professor Troller stated there was very little specific content around the health needs of people with intellectual disability in nursing and medical courses nationally, and a recent audit revealed over 20 years there had been no improvement in content and in some instances gone backwards. Further, despite a higher proportionate representation in emergency departments, staff would have received little or no content in their professional training directly relevant to people with intellectual disability. His data shows people with intellectual disability have to wait longer to be seen for similar acuity conditions and are more likely to leave before being seen.

Professor Troller estimated 40% and up to 60% of people with intellectual disability also have a mental illness, so it is two to three times as common compared to the general population including core mental health conditions such as schizophrenia with a slightly earlier onset in people with intellectual disability. He also noted overall there seemed to be a greater vulnerability to infection, however this might be related to context factors such as general frailty or living conditions.

Mrs Mortimer gave evidence that she was treated as a nuisance, 'They treated me as if I'd tell a lie about her health, that I wasn't credible. They referred to the admissions as social admissions.'

The other effect of feeling like a nuisance was that Mrs Mortimer stated it made it difficult to return to the hospital and Professor Troller agreed this happens often reflecting lack of skills and training of health staff.

Mrs Mortimer reiterated her desire for a designated 15 bed facility at the Dual Disability unit at St Vincent's hospital 'so no other person with a dual disability or their family is ever treated like this again.'

...

In light of Professor Troller's evidence, the Royal Commission's finding and the experience detailed by Mrs Mortimer as feeling 'like a nuisance' when seeking medical assistance for Robena, I intend to make recommendations regarding training for health professionals. Professor Troller reported to the Royal Commission that 'Three audits highlight that at present, the majority of future nurses and doctors will graduate with inadequate or no understanding of the specific health care needs of people with intellectual disability. Without the development of targeted strategies to address this issue, the health inequalities experienced by this population are likely to continue.'

I also take into account Mrs Mortimer's evidence and written statement referring, at the time of de-institutionalisation some thirty years ago, to the promise of a 15-bed in-patient facility for intellectually disabled people with dual disabilities to receive appropriate medical care. Whilst I have not been able to locate the relevant announcement from the time, I note when Mrs Mortimer raised it, Professor Troller was approving, and I intend to make a recommendation to the Health Minister to re-visit this proposal.[61]

(a) the Coroner did not expand on the findings as to Ms Lloyd's distress and behavioural condition during her attendance on 31 July 2009 at the Angliss Hospital;

(b) the Coroner did not attempt to reconcile the difference in evidence as to Ms Lloyd's presentation on 5 August 2009 and whether it would have made any difference whether to admit her to hospital;

(c) the Coroner failed to assess the doctor's opinions as to whether the medical treatment of Ms Lloyd was sub-optimal or negatively influenced by Ms Lloyd's disabilities in the context of Professor Troller's evidence;

(d) the Coroner failed to investigate whether:

(i) there was an absence of clearly defined clinical care pathways;

(ii) there was a lack of skills or resources to make reasonable adjustments to support inclusion of persons with a disability;

(iii) the doctors and nurses who treated Ms Lloyd had any training in understanding the specific healthcare needs of people with intellectual difficulties; and

(iv) the treating doctors and nurses agreed with Professor Troller's evidence that:

(1) persons with mental and intellectual disabilities had a greater vulnerability to infection;

(2) if the hospital staff knew that the carer felt that she was being treated as a nuisance it would make it more difficult for the carer to return Ms Lloyd to the hospital; and

(3) when dealing with people with mental and intellectual disabilities, physical signs can be absent or different when evaluating the severity of infection or risk of sepsis.

60 The Coroners Court appeared to assist this Court on the basis described in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[62]

61 Counsel for the Coroners Court drew attention to the Coroner's observations at the directions hearing held on 29 September 2020, and the subsequent definition of the scope of inquest. Counsel referred to the findings of the Coroner concerning the impact of Ms Lloyd's intellectual disability and her medical care.

(a) the inquest was thorough - it was conducted over five days and heard evidence from twelve witnesses;

(b) although the plaintiff sought findings critical of the care provided by the second and third defendants, the panel of experts was not critical of the medical care provided to Ms Lloyd. The Coroner accepted the expert panel's view and found that Ms Lloyd's treatment by the second and third defendants was reasonable and appropriate;

(c) the Coroner plainly investigated the issues and was well aware of the need to make findings about the matters raised by the Court of Appeal;

(d) the issues were adequately addressed by the Coroner in her findings;

(e) the grounds assert that the investigations were not done 'properly, or at all', and are not proper grounds of review;

(f) the Coroner did not accept the contention that Ms Lloyd's care was adversely impacted by her disability;

(g) this does not mean that the Coroner did not consider the issue;

(h) all parties were well aware of the scope of inquest which included the significance, or not, of Ms Lloyd's disability to the care that she received; and

(i) there is a need for closure in this matter including for the medical practitioners who have faced serious allegations for over thirteen years.

63 The plaintiff did not suggest that the Coroners Court had not complied with the remitter. The order for remitter had been acted upon. All of the findings of the previous investigation had been set aside, and the investigation reopened. A new coroner had conducted the fresh investigation. Although the Court of Appeal did not order that an inquest was to be undertaken, the Coroner determined that an inquest should be conducted, and did so.

64 I conclude (and the contrary was not suggested) that the Coroner complied with the order for remitter and the direction in it in all respects.

65 The plaintiff did not suggest that the Coroner did not comply with the provisions of the Act. The Coroner investigated Ms Lloyd's death,[63] and held an inquest under the Act.[64] The Coroner determined the witnesses to be called, heard submissions and decided the scope of the inquest.[65]

66 The Coroner made findings as to the identity of the deceased, the cause of death and the circumstances in which the death occurred.[66] The Coroner also made recommendations for the appropriate authorities concerning matters connected with Ms Lloyd's death.[67] There was no complaint that there had been a failure in procedural fairness.

67 I conclude (and the contrary was not suggested) that the Coroner complied in all respects with the Act and with the requirements of procedural fairness.

68 In submitting that the Coroner had erred in law, the plaintiff relied on the passages in the reasons of the Court of Appeal set out above,[68] and said that the Coroner had not complied, or sufficiently complied, with the reasons. This raises the question of whether, on remitter, non-compliance with guidance or dicta in the reasons of a superior court is an error of law in circumstances where the inferior court or tribunal complied with the order for remitter in all respects. I will return to this question later.

69 It is important to examine what the Court of Appeal said in its reasons. It held that it was desirable in the interests of justice that the investigation be reopened to resolve the factual dispute with respect to the circumstances of Ms Lloyd's discharge from the hospital and the regime to be followed at her home, including the clarity of the communications involved. The Court of Appeal added that it would also be necessary to gauge whether the setting of chronic behavioural disturbance affected Ms Lloyd's treatment, and if so, to what extent.

70 The reference to 'chronic behavioural disturbance' was a reference to a finding of the previous coroner who had concluded that:

Overall the medical management was reasonable in a very difficult setting of chronic behavioural disturbance and chronic medical illnesses.[69]

71 The Court of Appeal was not suggesting, and should not be taken as suggesting, that the reopening of the investigation would give rise to any predetermined result. Rather, the Court said that the setting aside of the previous coroner's findings did not imply that any of the findings were wrong in that they were made against the weight of the evidence. The Court observed that it may be that after a comprehensive reinvestigation some or all of the findings of the previous coroner would be confirmed. The Court added that the aim should be to ensure that whatever findings were made upon the reopening of the investigation they were made on an accurate and fully informed basis.[70]

72 The Coroner was acutely aware of the reasons of the Court of Appeal. At a directions hearing on 29 September 2020, she described herself as 'particularly mindful' of the Court of Appeal's decision, including the passages set out at paragraph [8] of this judgment, which she read out. The Coroner listed the steps which were being taken to address the Court of Appeal's concerns.

73 In the second finding, the Coroner set out extracts from salient paragraphs in the Court of Appeal's decision.[71] She stated that the new coronial brief was compiled in light of the Court of Appeal's comments about a fresh investigation, the factual disputes regarding medical care and communication, as well as the impact of Ms Lloyd's behavioural disturbance on her medical care.[72]

74 To examine the medical issues, an extensive questionnaire was prepared for the panel and for Dr Dewan. The panel gave its opinion on the prepared questions. Dr Dewan gave his evidence separately and responded to the same set of questions.[73] Under examination by the plaintiff, Dr Dewan gave new evidence that the ileostomy surgery conducted in July 2009 was the cause of Ms Lloyd's ill health. This was based on the interpretation of an X-ray from 5 August 2009, which he said showed gas suggestive of a problem with the surgery.

75 The Coroner ultimately reached the significant conclusion that the expert panel's evidence was to be preferred to that of Dr Dewan, setting out the reasons for this conclusion in the second finding.[74] The reasons arose from factual matters and the Coroner's observation and impressions of the witnesses. They were not challenged before me.

76 Having preferred the expert panel's evidence to that of Dr Dewan, the Coroner found that Ms Lloyd's medical treatment and the tests conducted on 31 July 2009 were reasonable and appropriate in the circumstances of her presentation and that it was reasonable to discharge her home and not admit her to hospital. This finding resolved one of the principal conflicts in the medical evidence before the Coroner.

77 I will briefly summarise some of the other conclusions relating to the treatment of Ms Lloyd in the second finding.

78 The Coroner resolved a factual dispute about whether Dr Phiri examined Ms Lloyd, holding that he did.[75] The Coroner also accepted the plaintiff's evidence that Ms Lloyd was unwell and very distressed, which was consistent with the hospital records describing Ms Lloyd as aggressive and hitting at staff.[76] After reviewing the evidence, the Coroner concluded that Dr Phiri's treatment of Ms Lloyd on 31 July 2009 was reasonable and discharge was appropriate for follow up by a general practitioner.[77]

79 The Coroner summarised the evidence relating to Ms Lloyd's treatment on 5 August 2009, analysing the factual discrepancies in the evidence.[78] She also dealt with a factual dispute as to whether the carers asked for a urine sample to be taken.[79] After reviewing whether the carers were told about Ms Lloyd's care plan when she was discharged on 5 August 2009,[80] evidence about Ms Lloyd's blood results,[81] Dr Pearson's diagnosis and treatment plan, and various other matters relating to Ms Lloyd's treatment, the Coroner accepted the view of the panel that Ms Lloyd's medical treatment on 5 August 2009 was reasonable.[82] The Coroner agreed with the expert panel that the clinical indicators were not sufficient to show that Ms Lloyd should have been admitted to hospital.[83]

80 The Coroner reviewed Ms Lloyd's treatment by the locum doctor, Dr Agaskar, on 6 August 2019, accepting the contemporaneous record entered on the evening of his consultation with Ms Lloyd as the best evidence.[84] The Coroner accepted the clinical details entered in Dr Agaskar's record and his medical opinion that nothing recorded in the examination indicated or warranted urgent or different treatment.[85]

81 The Coroner then examined the evidence concerning Ms Lloyd's presentation and treatment at the Angliss Hospital Emergency Department on 7 August 2009.[86] The Coroner accepted the panel's opinion that after 5 August 2009 Ms Lloyd had developed a blood borne infection, septicaemia, although the precise source of the septicaemia could not be determined.[87] The Coroner concluded that the rapid deterioration between Dr Agaskar's assessment on the night of 6 August 2009 and Ms Lloyd's collapse in the morning of 7 August 2009 reflected the potentially rapid and irreversible nature of E.coli septicaemia.[88]

82 The Coroner reviewed the impact of Ms Lloyd's intellectual disability on her medical care, referring to the plaintiff's evidence and the evidence of the treating medical practitioners.[89] The Coroner observed that a number of the plaintiff's concerns had been considered when determining the inquest scope which included a consideration of the treatment of people with intellectual difficulties within mainstream medical practice.[90]

83 As to the impact of Ms Lloyd's intellectual disability on her medical care, the Coroner concluded that none of the evidence from Dr Phiri, Dr Pearson or Dr Agaskar indicated that the treatment of Ms Lloyd was sub-optimal or influenced negatively by the fact that she had a dual disability, namely a mental illness and an intellectual disability.[91]

Improvement of services for intellectually disabled people

84 The Coroner then turned to Professor Troller's expert opinion as to the services provided to persons with intellectual difficulties and their families. The Coroner adopted much of Professor Troller's evidence in her finding.[92] The Coroner also noted the plaintiff's evidence and written statement referring, at the time of de-institutionalisation thirty years ago, to the promise of a 15-bed in-patient facility for intellectually disabled people with dual disabilities. The 15-bed inpatient facility had not eventuated, and the Coroner requested that the Victorian Health Minister give consideration to its establishment.[93]

85 Ground 1 would ordinarily be regarded as raising factual rather than legal matters. It can only assume a legal character if treated as an allegation that the Coroner did not do what was required of her Honour by the Court of Appeal. This is what the plaintiff submits.

86 Turning to the matters raised by the plaintiff, the Coroner accepted the plaintiff's evidence, consistent with the hospital records, that Ms Lloyd was distressed and aggressive. The Coroner also found that Dr Phiri's treatment on 31 July 2009 was reasonable and that discharge was appropriate. More generally, the Coroner found that the treatment of Ms Lloyd was not sub-optimal or influenced negatively by her disabilities.

87 One matter raised by the plaintiff is the evidence as to Ms Lloyd's presentation on 5 August 2009, and whether it would have made any difference if Ms Lloyd had been admitted to hospital. The Coroner made findings as to Ms Lloyd's presentation at the hospital on 5 August 2009, and discussed the factual discrepancies relating to the evidence. The Coroner also noted Professor Cade's opinion that 'it seems obvious in hindsight that [Ms Lloyd] would probably have survived if she had been in hospital at the time'. However, Professor Cade was not of the view that her admission to hospital was indicated.[94]

88 The plaintiff criticises the Coroner's investigation of the clinical care provided to Ms Lloyd. However, the scope of the inquest, the comprehensive array of witnesses, and the use of a panel of specialists to assess clinical care on each day of treatment were all appropriate and thorough. The Coroner appears to have done everything which could have been done to unearth the truth in circumstances where the events in question occurred over eleven years earlier. It is not the role of the Court in this proceeding to make a qualitative evaluation or overall assessment of the Coroner's work, but rather to discern whether the second finding suffered from error of law on the face of the record as alleged by the plaintiff, and if so whether relief should be granted.

89 As the Coroner correctly noted, all coronial findings must be made based on proof of relevant facts on the balance of probabilities, and, in determining those matters, the principles enunciated in Briginshaw v Briginshaw apply.[95] There are important limitations on what the Coroner can do and find.

90 The Coroner did all the things which the Court of Appeal requested but not always with the outcome that the plaintiff sought. It is not to the point that some of the conclusions of the Coroner might be viewed as accepting of the actions and diagnoses of the medical staff who treated Ms Lloyd.

91 The conclusions to be drawn from the evidence are quintessentially to be drawn by the Coroner who saw the witnesses and heard the evidence. As the Court of Appeal appreciated when it set aside the first finding and provided the opportunity for a more comprehensive coronial investigation, the ultimate findings were still open, and might be the same or different from those in the first finding. Again, I stress that the ultimate findings of the investigation and inquest are for the Coroner who exercises statutory authority to decide, and not for this Court on an application such as the present one.

92 Having reviewed the second finding in some detail, I find no error of law in what the Coroner found or did. I am not satisfied that Ground 1 is established by the plaintiff. The Coroner extensively reviewed Ms Lloyd's treatment, including the setting of behavioural disturbance, making specific findings as to whether Ms Lloyd's treatment was affected by the setting of behavioural disturbance as well as findings and a recommendation concerning the future treatment of persons with dual disabilities. The Coroner gave detailed consideration to the submissions and evidence at the inquest and made findings of fact and recommendations as considered appropriate on the available evidence.

Ground 2 - Did the Coroner fail to investigate properly, or at all, the factual dispute with respect to the circumstances of Ms Lloyd's discharge from the hospital and the regime to be followed at her home, including the clarity of the communications involved?

94 The Coroner specifically addressed the factual dispute concerning Ms Lloyd's discharge from hospital, including what her carers were told when Ms Lloyd was discharged to home on 5 August 2009. She described this as the 'other significant factual dispute'.[96]

95 The Coroner summarised the evidence of Dr Pearson, the staff specialist in the Emergency Department of the Angliss Hospital, who authorised Ms Lloyd's discharge. Dr Pearson said that it was not his practice to write detailed care plans at discharge and that 'it would have been a verbal care plan'. He said that his usual practice would be to say that the carers should:

(a) make sure she passes urine;

(b) watch out for signs of bladder distension, which might be distress or pain caused by pressure from the bladder; and

(c) bring her back to hospital if she did not pass urine or became distressed.[97]

96 Ms Lloyd's two carers at the time of her discharge were Mr Leeworthy and Ms Young. Mr Leeworthy could not recall Ms Lloyd's discharge. In a statement made in 2013, Mr Leeworthy stated that there were no instructions given to supervise trial voiding and they were not told to tell the plaintiff about this. When asked about discharging Ms Lloyd, Mr Leeworthy stated that 'I think that they were wanting us to do like trial walking her around and do trial voiding or something like that', adding that 'I really don't know what that meant at that time.'[98]

97 The Coroner observed of Mr Leeworthy's evidence that he struggled to have an independent recollection of what he was told in the Emergency Department on 5 August 2009. She noted that in his statement he said that the carers were not told about 'trial voiding', but in evidence he stated that he was told about trial voiding but did not understand what it meant at the time. In cross-examination before the Coroner, he agreed that trial voiding meant passing urine.[99]

98 In her statement, Ms Young said that the carers were not told about trial voiding. She said in substance that she did not know the term. She could definitely say that no one asked the carers to do that because she would have queried what it was. By the time of the inquest, Ms Young had died. Her evidence could not be tested at the inquest.[100]

99 On the available evidence, the Coroner made the following factual finding:

With respect to what Robena's carers were told regarding her care and the regime to be followed at home, I find it most unlikely Dr Pearson used the phrase 'trial voiding' as indicated in Sue Young's statement, she had never heard of the phrase and Mr Leeworthy stated the same in his 2013 statement. In evidence, Mr Leeworthy, was quite vague, which was not surprising given the passage of time. I accept Dr Pearson's evidence he gave the carers some oral instructions regarding Robena's care. However whilst there is a note to 'encourage oral', a plan is not recorded in the medial records and communication was not sufficient to constitute a verbal care plan.[101]

(a) the findings are so vague that it is difficult to extract any clear finding at all; and

(b) the Coroner failed to investigate properly, or at all, a matter specifically referred to the Coroners Court by the Court of Appeal.

101 The first defendant submitted that the Coroner made findings on the disputed facts relating to Ms Lloyd's discharge. The Coroner made a finding based on the evidence presented at the inquest.

102 The second and third defendants submitted that the Coroner addressed the question about communication with Ms Lloyd's carers prior to her discharge. She noted the uncertainty about the facts given the passage of time, and concluded by accepting Dr Pearson's evidence that he gave the carers some instructions regarding Ms Lloyd's care.

103 Like Ground 1, Ground 2 would ordinarily be regarded as raising factual rather than legal matters. It can only assume a legal character if treated as an allegation that the Coroner did not do what her Honour was required to do by the Court of Appeal.

104 By the time of the inquest, over eleven years had passed since Ms Lloyd's discharge from the Emergency Department at the Angliss Hospital on 5 August 2009. The evidence available as to what passed between Dr Pearson and the carers at the time of her discharge was vague and uncertain. Mr Leeworthy did his best, but could not remember the discharge at all. The second carer, Ms Young, had died, although she had prepared a statement prior to her death. The discharge doctor was Dr Pearson, whose recollection was also very limited.

105 The Coroner's conclusions were fair and balanced. The Coroner accepted what Ms Young had said in her written statement, that it was unlikely that Dr Pearson had used the phrase 'trial voiding'. This was supported by Mr Leeworthy's earlier statement. The Coroner noted that Mr Leeworthy was quite vague in evidence, which was not surprising given the passage of time. The Coroner also accepted Dr Pearson's evidence that he gave the carers some oral instructions regarding Ms Lloyd's care, but not a detailed care plan. The medical records did not contain a detailed care plan, and the communication made by Dr Pearson to the carers was not sufficient to constitute a verbal care plan.[102]

106 I am not satisfied that the plaintiff has shown that the second finding contains any error of law, or any error as alleged in Ground 2. The Coroner considered the submissions and limited evidence available as to what Ms Lloyd's carers were told on her discharge on 5 August 2009, and made a careful and balanced finding of fact.

Is it an error of law not to comply with the reasons of the Court of Appeal?

108 There is no doubt that a court or tribunal to which a proceeding is remitted is required to act in compliance with the remitting order and any directions of the appellate court which heard the appeal and made the remission. In the present case, the Court of Appeal remitted the investigation to the Coroners Court under s 87(4) of the Act.

109 As Pritchard J said in Investments (WA) Pty Ltd v City of Swan:

The scope of the authority of a court to deal with a matter remitted to it has been examined in several cases in the context of remittals from the High Court to State Supreme Courts pursuant to s 37 of the Judiciary Act 1903 (Cth). Those cases have established that the court to which the matter is remitted cannot make any order nor undertake any task inconsistent with the order of remittal...[103]

110 However, the question arises as to whether a court or tribunal to which a proceeding has been remitted commits an error of law if it fails to act in accordance with the observations contained in the reasons of the judges who constituted the appellate court, in circumstances where the observations were not embodied in the remitting order or directions. In the present case, the reasons were joint reasons of all members of the Court. The issue is simpler in the present case, but becomes more complex if the members of the appellate court give different or conflicting reasons.

111 The researches of counsel did not uncover any appellate authority where this issue has been comprehensively examined. However, in Harvard Nominees Pty Ltd v Tiller (No 4), Jackson J considered the principles which apply in the conduct of remitters, and held:

The obvious and important qualification is that the remitter is to be conducted in light of the decision of the Full Court in which the remitter is ordered. That has at least three implications. The first is that the court on remitter must act consistently with the Appeal Judgment. That includes not only the ultimate orders made, which may give express direction to the court on remitter, but also the reasons for decision. The authorities for this basal proposition tend to be in the context of s 37 of the Judiciary Act 1903 (Cth), which imposes on courts to which the High Court remits a cause an express obligation to execute the judgment of the High Court in the same manner as if it were their own judgment: see the authorities collected by Pritchard J in Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 at [35]. The power to remit under s 28(1)(c) of the Federal Court Act is not accompanied by any similar express requirement, although the different power under s 28(1)(g) is: see s 28(2). But none of the parties here suggested that this made any difference; where an appellate court, higher in the hierarchy that a primary court, determines a matter in a certain way, it must follow that the primary court cannot depart from that determination on remitter.[104]

112 The question of whether in construing a court order regard may be had to the accompanying reasons for decision has been comprehensively discussed in many decisions. Recent decisions have determined that reference may be had to the reasons for judgment as an aid to the interpretation of a court order whether or not the court order is ambiguous.[105]

113 In the event, I do not need to consider this issue further as I have found that the Coroner did not depart from the order of the Court of Appeal or the guidance contained in the joint reasons of the Court of Appeal. To the contrary, the second finding addressed the relevant issues. There was no error of law on the face of the record.

114 The final issue is that of discretion. There is a compelling need for closure and finality for all parties, including the plaintiff. Over thirteen years have passed since Ms Lloyd's death. The recollection of key witnesses has dimmed considerably or been lost, and at least one witness has died. There has now been a detailed investigation and examination of the treatment afforded to Ms Lloyd and the advice given to her carers at the time of her discharge by a panel of medical experts resulting in an inquest. The inquest continued for over five days and heard from twelve witnesses including concurrent evidence from three medical experts. The Coroner has done all that can be done to call evidence and ascertain the facts. The facts have been found and recommendations made by the Coroner in a comprehensive and careful finding. There have also been multiple proceedings in this Court. They resulted in the reopening of the coronial investigation and the conduct of a thorough investigation and inquest which have now been completed. There is a serious question whether there is any utility in seeking to do more. In the event, it is not necessary for me to determine whether relief should be granted and a new coroner appointed to reopen the investigation and inquest given that the Coroner has since been appointed as a judge of the County Court and may not be available.

115 For the reasons given, Grounds 1 and 2 both fail. The proceeding must be dismissed.

[1] Finding Into Death With Inquest for Robena Lloyd, 2 September 2021.

[2] Finding Into Death Without Inquest for Robena Lloyd, 24 June 2013 (amended 26 June 2013).

[3] Mortimer v West (in his role as Deputy State Coroner) [2015] VSC 150 (Randall AsJ).

[4] Mortimer v West (in his role as Deputy State Coroner) [2016] VSC 11 (Rush J).

[5] Mortimer v West (in his role as Deputy State Coroner) [2017] VSC 293 (Macaulay J).

[6] Mortimer v West (in his capacity as Deputy State Coroner) (2018) 56 VR 608 (Tate and McLeish JJA, McDonald AJA) ('Mortimer').

[11] Ibid 647 (emphasis added) (citations omitted).

[24] [1951] EWCA Civ 1; [1952] 1 KB 338.

[25] [2012] HCA 61; (2013) 249 CLR 332.

[26] (1986) 162 CLR 24.

[27] Chief Commissioner of Police v Hallenstein [1996] VicRp 51; [1996] 2 VR 1, 15-6 (Hedigan J).

[28] Melton City Council v Minister for Planning [2022] VSCA 144, [45]-[46], citing Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1, 23-31 (Gageler J), 36-40 (Edelman J); R v Northumberland Compensation Appeal Tribunal; ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338, 342, 348.

[29] Melton City Council v Minister for Planning [2022] VSCA 144, [46], citing Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1, 41-2 (Edelman J).

[30] (2010) 239 CLR 531, 567 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[31] [1995] HCA 58; (1995) 184 CLR 163, 182-3 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) (citations omitted) ('Craig').

[33] Ibid; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338, 352; see also Goldberg v Stocker [2016] VSC 20, [61] (Lansdowne AsJ) and Davey v Costanzo Lawyers Ltd [2021] VSC 449, [40] (Quigley J).

[34] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305, 343 (Dowsett , Tracey and Katzmann JJ).

[35] Craig (n 31), 181-2. See also Matson v Racing Appeals Tribunal [2001] VSC 264, [99]-[101] (Gillard J).

[36] Craig (n 31), 182; Matson v Racing Appeals Tribunal [2001] VSC 264, [99]-[101] (Gillard J).

[37] Craig (n 31), 181. See also Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 577.

[38] Priest v West [2012] VSCA 327; (2012) 40 VR 521, 562 (Tate JA, Maxwell P and Harper JA agreeing).

[39] Tural v Potter [2000] VSC 80; (2000) 110 A Crim R 475, 481 (Eames J); see also Wilson v County Court of Victoria [2006] VSC 322; (2006) 14 VR 461, 469-70 (Cavanough J).

[40] O'Connor v County Court (Vic) (2014) 67 MVR 66, 75 (Kaye J); see also Harvey v County Court (Vic) [2006] VSC 293; (2006) 164 A Crim R 62, 66.

[41] O'Connor v County Court (Vic) (2014) 67 MVR 66, 74 (Kaye J); see also Giurina v DPP [2017] VSC 289, [35].

[42] [2002] VSCA 31; (2002) 35 MVR 543, 546.

[43] Frugtniet v Victoria Legal Aid (Supreme Court of Victoria, Hedigan J, 11 September 1997); Corrado v Gebhardt [1999] VSC 35, [19] (Hedigan J); O'Connor v County Court (Vic) (2014) 67 MVR 66, 74 (Kaye J); Cemino v Cannan (2018) 56 VR 480, 488 (Ginnane J).

[44] (2014) 67 MVR 66, 75.

[45] [2004] NSWCA 30 revised 1/03/2004.

[59] Ibid [237]-[241] (references omitted).

[61] Ibid [242]-[257] (references omitted).

[62] [1980] HCA 13; (1980) 144 CLR 13.

[95] Ibid [25], referring to Re State Coroner; ex parte Minister for Health [2009] WASCA 165; (2009) 261 ALR 152 and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[103] [2012] WASC 278; (2012) 190 LGERA 205, 212-3, referring to Peacock v DM Osborne & Co [1907] HCA 42; (1907) 4 CLR 1564, 1567-8, R v Weiss (No 2) [2006] VSCA 161; (2006) 164 A Crim R 454, 472 and R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45, 52.

[104] [2022] FCA 105, [45].

[105] See, eg: Ganesh v National Australia Bank Limited [2021] VSCA 45, [74]; Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180; (2018) 359 ALR 159, 165 (Ferguson CJ, Whelan and McLeish JJA); Yates Property Corporation v Boland [1998] FCA 1605; (1998) 89 FCR 78; White v Biscan [2021] VSC 799, [19]. But see: Verde Terra Pty Ltd v Central Coast Council (No 9) [2022] NSWLEC 29, [158], [161]; Ellison v Sardini [2018] FCAFC 44; (2018) 263 FCR 460, 500; Laming v Jennings [2018] VSCA 335, [123]; Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34, 42.