Coronial Causation

18 March 2019 by Dominic Ruck Keene

The Divisional Court in R (Chidlow) v HM Senior Coroner for Blackpool [2019] EWHC 581 has given a concise and authoritative judgment reiterating and summarising the current common law concerning causation in inquests. Given the ever increasing importance of inquests and their conclusions as preliminaries to civil litigation, as well the growing number of inquests being held into historical deaths, the judgment will doubtless be frequently cited over the coming months and years.

Mr Childlow brought the judicial review following the inquest into the death of his brother (Carl Bibby). Mr Bibby died from a cardiac arrest in circumstances where an ambulance had been called, but there were admitted delays in the ambulance attending. At the inquest, the jury heard evidence from a consultant in Critical Care & Emergency Medicine that had paramedics attended Mr Bibby before he suffered cardiac arrest, he would, on the balance of probabilities, have survived. Nevertheless, the coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby’s death to the jury. Mr Chidlow sought a declaration that the coroner acted unlawfully, an order quashing the record of inquest and an order that a fresh inquest be held before a different coroner.

The ambulance in question had been called by the police following a suspected attempted suicide. A follow up call to the ambulance service had been made when Mr Bibby started fitting, however, this had not led to the call out being re-prioritised. The inquest heard evidence that this should have led to an ambulance arriving 36 minutes earlier than was the case.

Investigation by a number of pathologists had been unable to establish a medical cause of death.

At the conclusion of the evidence, the coroner refused to leave to the jury either a possible conclusion of neglect by reason of the ambulance service delay in attending upon Mr Bibby or a possible causal link between such delay and death. This was based on the lack of a confirmed medical cause of death, meaning

it would be unsafe to put before this jury the possibility of returning any neglect rider. It cannot be established, in my judgment, that the rendering of care would have prevented the death if we do not know what the cause of death was.

Further he held that there was no conduct capable of amounting to failure for the purposes of neglect.

The Divisional Court began its analysis of the relevant law by noting that Article 2 was engaged, and hence the inquest had of course to investigate the circumstances in which Mr Bibby had died.

It then noted at [33-35] that when sitting with a jury, a coroner must give the jury directions as to the conclusions and findings that are properly open to it upon the evidence in accordance with the ‘Galbraith Plus Test’. It held that

There are two components to the test: First, the coroner is required to apply an evidential filter and ask whether there is evidence upon which the jury properly directed could properly reach the particular finding…Secondly, the coroner is also required to consider whether it would be safe for the jury to reach the conclusion or finding upon the evidence.

The Divisional Court cited the observation of Haddon-Cave J in R (Secretary of State for Justice) v. HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin), that the second limb arguably provides a “wider and more subjective filter” and that “this extra layer of protection makes sense in the context of a coronial inquiry where the process is inquisitorial rather than adversarial, the rights of interested parties to engage in the proceedings are necessarily curtailed and coronial verdicts are at large.”

With respect to causation, the Divisional Court cited at [36-37] the earlier Divisional Court judgment in R (Tainton) v. HM Senior Coroner for Preston & West Lancashire [2016] EWHC 1396 (Admin) to the effect that:

the question is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death… It follows that the question of a causal link between the delay in the attendance of the ambulance service and death should have been left to the jury in this case if there was sufficient evidence upon which the jury could safely find that, on the balance of probabilities, such delay had more than minimally, negligibly or trivially contributed to Mr Bibby’s death. For completeness, a coroner also has a discretion, but not a duty, to leave to the jury causes of death that are merely possible but not probable: R (Lewis) v. Mid & North Shropshire Coroner [2009] EWCA Civ 1403, [2010] 1 WLR 1836, per Sedley LJ at [28].

The Divisional Court also noted that as there had been expert medical evidence looking at the statistical chances of survival of patients with cardiac arrest, the inquest into Mr Bibby also raised the issue as to whether or not causation could be proved by statistical evidence as to the prospects that Mr Bibby might have survived had he received expert treatment in good time. The Court identified at [39] that in R (Khan) v HM Coroner for West Hertfordshire [2002] EWHC 302 (Admin) Richards J. had observed that without appropriate expert evidence as to the difference earlier treatment might have made, it would be wrong to leave any associated matter as to causation to the jury – “Any attempt by the jury to reach conclusions on this issue in the absence of such evidence would be based not on legitimate inference and common sense but on impermissible speculation.”

Interestingly, the Court also stated that it was ‘instructive’ to look at the common law concerning causation in clinical negligence, observing at [46] that “a claim for clinical negligence must be proved on the balance of probabilities and, if it cannot be, no separate action lies upon proof of a reduced chance of a positive outcome.”

The Court concluded at [52] that:

1 In deciding whether to leave an issue of causation to a jury, a coroner should consider both limbs of the Galbraith Plus test. Causation should be left where there is evidence upon which the jury could properly and safely find that, on the balance of probabilities, the event or omission had more than minimally, negligibly or trivially contributed to death. That is the crucial test.

2 In considering whether it is safe to leave such an issue to the jury, a coroner must have regard to all relevant evidence. In addition to evidence relating to the particular deceased and the circumstances of his or her death, that may include general statistical evidence drawn from population data such as the rate of survival in a particular group.

3 Such general statistical evidence alone is, however, unlikely to be sufficient. For example, even where the rate is over 50%, a raw survival rate for the group into which (without the relevant event or omission) the deceased is said to fall is unlikely to be sufficient because, without evidence supporting the proposition derived from the population data , a jury could not safely conclude that he or she would have fallen into the category of survivors. As Croom-Johnson LJ put it, being a figure in a statistic does not of itself prove causation.

4 In most cases, there will be other evidence as to whether the deceased probably would or would not have fallen in the group of survivors. Where there is apparently credible additional evidence of causation which, if accepted, together with the general statistical evidence could properly lead the jury to find on the balance of probabilities that the event or omission more than minimally, negligibly or trivially contributed to death then it will usually be proper and safe to leave causation to the jury.

In the circumstances of Mr Bibby’s death, the Court held that the expert in question had considered the specific individual circumstances of Mr Bibby and his death “in order to determine in his professional opinion whether Mr Bibby was more likely than not to fall into the 80% of severely unwell patients who are expected to survive with prompt treatment.” Further, the coroner had erred by considering that the absence of an agreed medical cause of death prevented the jury from being able to consider the possible causal effect of any delay in treatment. Accordingly, the matter should have been left to the jury.

Dominic Ruck Keene is a barrister at One Crown Office Row.