Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE SILBER
Between :
THE QUEEN (on the application of KATE CAIRNS) | Claimant |
- and - | |
HM DEPUTY CORONER FOR INNER WEST LONDON JOAO PEDRO CORREIA LOPES TRADEX INSURANCE COMPANY LIMITED | Defendant 1st Interested Party 2nd Interested Party |
Anna Morris (instructed by Levenes Solicitors) for the Claimant
Jonathan Hough (instructed by The Solicitor, Westminster City Council) for the Defendant
The Interested Parties were neither present nor represented.
Hearing date: 18 October 2011
Judgment
MR JUSTICE SILBER:
I. Introduction
Eilidh Cairns was tragically killed in a road traffic accident on 5 February 2009 when her cycle was struck by an HGV driven by Mr Joao Pedro Lopes. An inquest was held by Her Majesty’s Deputy Coroner for West London (“the Coroner”). The claimant, who is the sister of Eilidh Cairns, now seeks to quash the verdict and have a fresh Inquest because the Coroner:-
acted unreasonably in deciding not to adjourn the inquest;
should have ordered that the Inquest should have summoned a jury;
unreasonably restricted the scope of her inquiry; and
should have made recommendations so as to prevent a repeat of this tragic accident.
Permission to pursue the claim was given by Mr Rabinder Singh QC (as he then was) on 24 September 2010. The defendant to the judicial review application is the Coroner while Mr Lopes is an Interested Party. He lodged an Acknowledgement of Service contesting this claim and filed amplified grounds on 13 July 2011 but he was not represented at the hearing. Tradex Insurance is also an Interested Party but it indicated that it would not appear or be represented at the hearing.
II. The Factual Background
Elidh Cairns, who was born on 12 June 1978, was an enthusiastic and proficient cyclist, who cycled to and from work along the same route on a daily basis. On 5 February 2009, she was cycling to work as usual and her route took her along the westbound carriageway of Notting Hill Gate, which is a dual carriageway.
As she was approaching a pelican crossing, the heavy goods vehicle (“HGV”) driven by Mr Lopes was in the left of the two lanes in heavy traffic and he stopped at a red traffic light behind another HGV at around 13 metres back from the “stop” line.
When the lights changed to green, Mr Lopes pulled away and drove forward. At a point shortly before the “stop” line, there was a collision between the front off side corner of the HGV and the cycle of Ms Cairns. Mr Lopes heard a noise and began to brake with his HGV coming to a halt 23 metres from the point where it had set off. Distances and speed were later calculated using the HGV tacograph, which showed the peak speed reached by the HGV had been 8-9 miles per hour in the area of the “stop” line.
Ms D’Anillo, a witness, did not recall seeing Ms Cairns’ cycle behind the HGV before the collision. There was no direct evidence as to the movement of the cycle from that point. PC Rathie, who was the police collision investigation expert, concluded from the physical evidence that the cycle had been just ahead of the HGV in the moment before the collision and that the rear wheel had been struck by the corner of the HGV causing it to fall to the right.
It is noteworthy that in the approach to the “stop” lines, the left hand kerb of the road tapers to the right thus causing vehicles to move to the right. At the point of the “stop” line, the lane width was 3 metres whereas the width of the HGV was 2.5 metres. The collision expert concluded from markings left in the road by the braking of the HGV that it had been had been fully in its own lane at the point of collision. Mr Nelson, who was driving his cab behind the HGV, gave evidence that the HGV had moved to the right as the nearside kerb angled right.
The lack of direct evidence of the movement of the cycle in the moments before the collision meant that it could not be said with certainty precisely when Ms Cairns would have been in front of the HGV or in the view of its driver. According to the collision expert, in the moment immediately before the impact, Ms Cairns would have been in view of the proximity mirror of the HGV but he said that a driver would not be expected to look into that mirror while he was driving along.
III. The Investigation and Inquest
When the police investigation into the accident was completed, its report was submitted to the CPS for a decision on prosecution on 7 July 2009. The CPS later decided to prosecute Mr Lopes for driving with defective eyesight and after the Inquest, he was convicted of that offence.
On 13 July 2009, the Cairns family met the senior investigating officer (Police Sergeant Simpson), who explained to them the findings of the investigation and the family reviewed a copy of the collision report. On 26 July 2009, Ms Kate Cairns submitted a set of detailed questions to the investigating officer with citations from his report. On 16 November 2009, the Coroner’s officer notified members of the public that an inquest would be held on 22 January 2010. On 21 December 2009, solicitors for the Cairns family informed the Coroner that they were instructed and they asked for the inquest to be adjourned because the counsel of their choice could not attend on the inquest date. No other reasons were given for the request for the adjournment but two alternative dates for the Inquest in January 2010 were suggested when their counsel would be able to attend. It was also pointed out that Ms Kate Cairns was expecting a baby in March 2010 and that the family of Ms Cairns were anxious for matters to proceed.
After the Coroner had received the letter from the solicitors of 21 December 2009, she telephoned to say that the dates which had been suggested as convenient for the family’s counsel could not be accommodated and so the inquest would not be adjourned.
On 18 January 2010, the solicitors for the Cairns family wrote to the Coroner again requesting an adjournment first because the trial of Mr Lopes was yet to take place, second because their estimate was that the inquest would take two to three days and not just the one day allocated, third because additional disclosure was required and finally because the calling of additional witnesses should be considered. On the same date, the Coroner replied declining to adjourn the inquest and stating that full disclosure of the relevant documents would be given. On the following day at the request of the Coroner, PS Simpson provided to the solicitors for the Cairns family a full set of witness statements and a copy of the collision report.
On the same day, counsel for the Cairns family lodged a written submission asking for an adjournment on the grounds that first the prosecution of Mr Lopes was yet to take place and second that the local authority should be recognised as an interested party and given time to prepare.
On 20 January 2010, solicitors for the Cairns family wrote again to request an adjournment on the basis that first the Coroner should consider sitting with a jury and second the prosecution of Mr Lopes had yet to take place. On the following day, the Cairns’ solicitors sent an email to the Coroner noting that five other accidents had occurred in the same area in recent years and asking that the local authority be provided with a collision report and then be given time to consider its contents. In response, the police family liaison officer contacted the local authority which confirmed that it had no wish for the inquest to be adjourned.
On 22 January 2010, the inquest started and at the outset, the Coroner heard an oral adjournment application from the Cairns family but she decided not to adjourn the inquest.
At the inquest hearing, the Coroner called Ms Kate Cairns, the Senior Investigating Officer, the eye witnesses to the accident, the collision investigation expert (PC Clark) and Mr Lopes. At the end of the hearing, she recorded a verdict of traumatic road death.
The Coroner also produced an Inquisition which recorded that verdict and the following entry of the time, place and circumstances of the accident, namely:-
“On Thursday 5 February 2009 at 8:58 Miss Eilidh Jake Cairns was involved in a collision with a tipper lorry while riding a pedal cycle along Notting Hill Gate, W11. She was conveyed to the Royal London Hospital where she subsequently died of her injuries at 10.49”.
The injury causing death was occasioned as “1a Multiple Injuries”.
IV. The Issues
The issues raised on this application are whether the Coroner:-
acted unreasonably in deciding not to adjourn the inquest;
should have ordered that the Inquest should have been held in front of a jury;
unreasonably restricted the scope of her inquiry;
should have made recommendations so as to prevent a repeat of this tragic accident; and
should hold a fresh Inquest.
Miss Anna Morris counsel for the claimant submits that I should consider the complaints (a) to (d) both individually and then cumulatively which I will do.
Before considering the issues, it is necessary to stress three features about my role of which the first is that first that my role on this application is limited as this is not an appeal on a question of fact. Indeed as was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QBin passages which were expressly approved on appeal in that case by Lord Phillips MR. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that:-
(a) "37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ." and that
.
(b) "43. Of course, the issue in the present case is not one of procedural fairness but concerns the proportionality of the penalty imposed. To my mind, however, that underlines the importance of recognising that the court's role is supervisory rather than that of a primary decision-maker. The test of proportionality requires the striking of a balance between competing considerations. The application of the test in the context of penalty will not necessarily produce just one right answer: there is no single 'correct' decision. Different decision-makers may come up with different answers, all of them reached in an entirely proper application of the test. In the context of the European Convention on Human Rights it is recognised that, in determining whether an interference with fundamental rights is justified and, in particular, whether it is proportionate, the decision-maker has a discretionary area of judgment or margin of discretion. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests".
Second, there are further limitations on the ability of this court to intervene on a judicial review application like the present one because of the inquisitorial nature of an inquest and the powers which are given to the Coroner. Section 11(2) of the Coroners Act 1988 (“the Act”) governs the calling of evidence and it provides that:-
“The Coroner shall, at the first sitting of the inquest, examine on oath concerning the death all persons who tender evidence as to the facts of the death and all persons having knowledge of those facts whom he considers it expedient to examine.”
Any decision as to what witnesses to call involves a two-limb test of relevance and expediency. A Coroner’s selection of witnesses may only be challenged if unreasonable in the Wednesbury sense: R v HM Coroner for Western District of East Sussex, Ex Parte Homberg (1994) 158 JP 357 at 374D-F.
Third, the purpose of an Inquest is limited, as section 11(3)-(4) of the Act requires that an inquest (whether heard with or without a jury) produce an Inquisition. Section 11(5)(b) states what an Inquisition must contain:-
“An inquisition –
…
(b) shall set out, so far as such particulars have been proved-
(i) who the deceased was; and
(ii) how, when and where the deceased came by his death…”
Rule 36 of the Coroners Rules 1984 (“the Rules”) regulates the scope of inquiry and provides in similar terms (with emphasis added):-
“The proceedings and evidence at an Inquest shall be directed solely to ascertaining the following matters:
(a) who the deceased was;
(b) how, when and where the deceased came by his death; and
(c) the particulars for the time being required by the Registration Acts to be registered concerning the death.
2. Neither the Coroner nor the jury shall express any opinion on any other matters”
Rule 43 of the Rules gives a Coroner the power to make a report if he believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held and I will return to consider this in paragraph 72 below.
In R v HM Coroner for North Humberside, Ex Parte Jamieson [1995] QB 1 at 23G-26C, the court characterised an inquest as a statutory inquiry established to determine the answers to “four important but limited factual questions”: who the deceased was, and how, when and where he came by his death. The “how” question was to be interpreted as meaning “by what means the deceased came by his death”, a question directed to the immediate physical means of death. Short-form verdicts such as “accidental death” were commonly used to answer this question, but there could be no objection to a very short and non-judgmental narrative verdict.
It has long been recognised that the scope of inquiry at an inquest can extend wider than is strictly required for the production of the verdict. It may do so in order to consider all possible verdicts, and in order to provide foundations for any Rule 43 Report. The courts will only interfere in decisions of Coroners regarding scope of inquiry in rare cases. In R v Inner West London Coroner, Ex Parte Dallaglio [1994] 4 All ER 139 at 155b, Simon Brown LJ said:-
“The inquiry is almost bound to stretch wider than strictly required for the purposes of the verdict. How much wider is pre-eminently a matter for the Coroner whose rulings upon the question will only exceptionally be susceptible to judicial review.”
Sir Thomas Bingham MR made the same point at 164j:-
“It is for the Coroner conducting an inquest to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of his investigation. That question, potentially a very difficult question, is for him”
Those passages have repeatedly been endorsed by the higher courts and they show the latitude given to a Coroner to decide how far, if at all, to permit the Inquiry to extend beyond the statutory requirements set out in paragraphs 24 and 25 above.
V. Issue 1: The Adjournment Issue
I have already explained in paragraphs 10 to 15 above that the Coroner received a number of requests to adjourn the inquest for different reasons. There are certain circumstances in which the Coroner must adjourn. Such cases are, for example, where a person is charged with murder or manslaughter of the deceased (section 16(1)(a) of the Act). None of those circumstances apply in this case and it is common ground that the Coroner had a discretion as to whether to grant an adjournment, but the case for the claimant is that the Coroner in refusing to adjourn the Inquest reached decisions which she was not entitled to reach and which were Wednesbury unreasonable.
The Coroner in her witness statement has explained that when considering each request for an adjournment she took into account the fact that an adjournment was likely to lead to the hearing being delayed for several months. Such delays are likely to cause recollections to fade as well as causing distress and inconvenience to witnesses. There may also be difficulties in securing the presence of witnesses at the subsequent hearing. In those circumstances, the Coroner was entitled to refuse to agree to an adjournment unless there was a good reason to reach a different decision.
The first request of 21 December 2009 was based solely on the unavailability of the selected barrister and his availability on limited dates in January 2010. In my view, the Coroner was quite entitled to refuse that request because the preferred dates of the barrister could not be accommodated by the Coroner and it would always be possible (and indeed was in fact possible) to instruct another competent barrister, which is what the family of Ms Cairns did.
The second request for an adjournment of 18 January 2010 was received just four days before the inquest and after witnesses had been warned. There was also a request for disclosure by arranging provision of reports and statements which the Coroner complied with within 24 hours. In my view, she was quite entitled to refuse the adjournment bearing in mind the appropriate witnesses had been warned and that in her expert view, the time estimate was sufficient. There is indeed no suggestion even at this stage that insufficient witnesses of fact were called concerning the incident and that in particular that there were any witnesses, who could and should have been called, but were not going to be called.
The third request of 20 January 2010 was based on the suggestion that the Coroner should adjourn the case pending the prosecution of Mr Lopes and that she should consider summoning a jury. As I have explained, there was no statutory obligation to adjourn pending the kind of prosecution that Mr Lopes was likely to face and did indeed face for driving with defective eyesight. There would have been no benefit in doing so because in any event, whether he was prosecuted or not for that offence, Mr Lopes would retain a privilege against self-incrimination for offences such as causing death by dangerous or careless driving because he would always remain at risk of being prosecuted for a more serious offence than that which was under consideration at the time which was driving with incorrect eyesight. So in my view, nothing would have been gained by adjourning the matter. By the same token, I do not consider that the suggestion that the Coroner should have summoned a jury as being a ground for an adjournment because as I will explain in paragraphs 39 to 56 below the Coroner was not obliged to summon a jury.
The final request of 21/22 January 2010 contains the additional argument that the local authority should be allowed to participate because there had been other incidents at the scene. The Coroner had quite properly ascertained that none of those accidents were factually similar to the one with which this Inquest was concerned and also that the local authority had no wish to assist at the inquest nor did they wish for it to be adjourned for that reason. In those circumstances, the Coroner was quite entitled, if not obliged, to refuse an adjournment for that reason.
It has been also suggested that the inquest should have been adjourned because of late disclosure this and that prevented the family from exploring the evidence or obtaining expert evidence. I am unable to accept this criticism first because the Coroner was entitled to take the view that first the family had received a full account of the investigation from the police, second because when they asked for disclosure, it was provided within 24 hours and third nothing has been put forward to show that this was an unreasonably short period to consider the material.
A second reason why the inquest should not have been adjourned on grounds of late disclosure is because there is no general requirement for Coroners to give or to arrange disclosure of documents for Interested Parties. Irwin J explained in Ahmed v HM Coroner South East Cumbria [2009] EWHC 1653 (Admin) “there is no hard and fast obligation on the part of the Coroner to disclose any witness statements or material: it is a matter of the exercise of discretion” [48]. In this case, the Coroner initially took the view that the family had received a full account of the investigation, but when she was asked for further disclosure, she ensured that it was provided within 24 hours. I am satisfied that if the material had been requested earlier, it would have been provided.
Third, there can be no serious suggestion that the legal representative of the claimants did not have the opportunity to digest the few statements in the report before the hearing. Indeed the way in which the witnesses were cross-examined and submissions were made by Miss Morris, who then appeared as she does now for the claimant show that all points of detail had been properly mastered. It has not been suggested that there were any further points that could have been pursued if further documents had been made available especially as the family had been fully aware of the circumstances of the accident and the police investigation report from July 2009 and they had asked many proper detailed questions in relation to it.
As to the contention that further expert evidence might have been adduced if disclosure had taken place earlier, I cannot accept that submission for three reasons. First, no reason was put forward as to why such evidence might differ from the very comprehensive evidence put forward in the police collision report. Second, if the family had felt that another expert might have come to a different view, they could have obtained a short supportive report and served it for the present hearing but this has not been done. Third, there was no reason why if the family of Ms Cairns had wanted an expert report, they could have obtained one earlier in the second half of 2009. Thus I do not consider there is any merit in any of those points.
The Coroner was entitled to refuse the requests for the adjournment and I reject this ground.
VI. Issue 2: The Coroner’s Failure to Consider whether to summon a Jury
The case for the claimant is that the Coroner was asked to sit with a jury, but that she failed to consider the issue. It is said that the first request came from the claimant’s solicitors of 21 December 2009 and reliance is placed upon the words “this is an important case with potential matters of public interest as regards for .. cyclists in the City”. To my mind, this very general comment does not constitute a request for a jury.
It is true that in their letter of 20 January 2010 the claimant’s solicitor did state:-
“we emphasise the Coroner’s duty to sit with a jury when the death occurred in circumstances the continuance or possible occurrence of which is prejudicial to the health or safety of the public or any section of the public. There is a private, political and media interest involving collisions as in this case between an HGV and cyclist especially in busy city centres”.
Further in a document entitled “Submissions For The Inquest On Friday 22 January 2010 To Be Adjourned Or Listed As A Pre-Inquest Review & Request For Further Information And Documentation”, it was suggested that a hearing on 22 January 2010 could be used for a pre-inquest review, at which “counsel can.. discuss whether a jury is appropriate”.
The circumstances in which a jury can be sworn and which might be relevant to this case are set out in section 8 (3) of the Act, which states insofar as is material that :-
“It appears to a Coroner either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect –
………
(d) that the death occurred in circumstances the continuance or possible reoccurrence of which is prejudicial to the health or safety of the public or any section of the public, he shall proceed to summon a jury in the manner required by subsection (2) above.”
In support of the contention that a jury should have been called, the claimant relies on the comments of the Coroner at the end of the Inquest that:-
“Now this is a terrible, terrible tragedy that unfortunately is not an uncommon occurrence in London where a cyclist and a large vehicle come into contact with each other, and invariably the cyclist will suffer very serious or fatal injuries, and it wasn’t said in anything other than a serious manner to Police Constable Clark, how do we prevent this happening? I think Mr Clark’s answer was that if he knew that then he wouldn’t be standing here. It’s a huge problem that I think the government and cyclists and safer cycling groups are going to be grappling with for quite a considerable time, but there’s nothing here today that convinces me or persuades me, or in any way leads me to believe that this was anything other than a tragic accident.”
Miss Morris also points out that the Coroner referred at the outset of the hearing to the existence of her powers under Rule 43 and the possibility of making a report. As I will explain in paragraph 72 the test under Rule 43 requires consideration of whether “the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future”. It is said that this wording is clearly closely linked to the wording of section 8(3)(d) so that if a report under rule 43 is a possibility, as the Coroner thought, then it is said by Miss Morris there must be “reason to suspect” that the condition in section 8(3)(d) is fulfilled.
To fortify her submission, Miss Morris points out that the issues of first the risk to cyclists coming into fatal contact with HGVs together with second the question of whether the City’s roads are compatible with both types of road users being able to co-exist safely, should have been the focus of the inquest. It is stressed that in the case of R (Paul and Ritz Hotel Limited) v Deputy Coroner for the Queen’s Household [2008] QB 172, Smith LJ giving the judgment of the Divisional Court explained the low threshold that applies to the mandatory requirement of section 8(3)(d) when she said that:-
“For the provision to apply, the circumstances need not "cause the death".. The prospect of recurrence required for the section to be applicable is low; it is the possibility of recurrence and not any higher chance. For the provision to apply, only a section of the public needs to be at risk from recurrence.”
Thus the thrust of Miss Morris’ case is based substantially but not solely on the comment of the Coroner that it “is not an uncommon occurrence in London where a cyclist and a large vehicle come into contact with each other and invariably the cyclist will suffer very serious or fatal injuries”. This shows that the Coroner had reason to suspect more than the possibility of a recurrence. Thus it is said that the Coroner erred by failing to even consider invoking the mandatory provisions of section 8(3)(d) in the circumstances where she ought to have concluded that the Paul threshold had been crossed.
I am unable to accept these submissions because as Mr Jonathan Hough counsel for the Coroner points out for a jury to be summoned there has to be a prospect that some action could be taken to prevent the recurrence of the accident. In R v Her Majesty’s Coroner of Hammersmith ex Parte Peach (Nos 1 & 2) [1980] QB 211, it was held that a Coroner was not obliged to sit with a jury under the statutory provisions which are similar to those in section 8(3)(d), where the deceased, who was watching a demonstration was struck a violent blow on the back of his head from which he died.
Lord Denning MR explained at page 226 B-D that a jury must be summoned when:-
“the circumstances are such that similar fatalities may possibly occur in the future, and it is reasonable to expect that some action should be taken to prevent their concurrence”.
Bridge LJ explained at pages 227 A-B that “the circumstances”, the recurrence of which is referred to are those which:-
“may reasonably and properly be avoided by the taking of appropriate steps which it is in the power of some responsibility to take”.
Sir David Cairns explained at page 228 that:-
“The difficulty is to find a meaning which does not do violence to the words of the Act and which gives effect to what may be taken to have been the intention of Parliament. The reference to "continuance or possible recurrence" indicates to my mind that the provision was intended to apply only to circumstances the continuance or recurrence of which was preventable or to some extent controllable. Moreover, since it is prejudice to the health or safety of the public or a section of the public that is referred to, what is envisaged must I think be something which might be prevented or safeguarded by a public authority or some other person or body whose activities can be said to affect a substantial section of the public.”
This case was considered in the case of Paul in which it was held that there was likely to be a recurrence of the type of the events in which the paparazzi pursued the Princess of Wales and her companion because in the words of Smith LJ “it is possible that this danger could be prevented by legislation or some other means”.
In the present case, PC Clark explained that he as a collision investigator could not answer the question which in the Coroner’s words was “what can we do to prevent the recurrent deaths of cyclists who’ve .. come into close proximity to large vehicles?”. So the Cairns family could not satisfy that pre-condition for summoning a jury that it is possible that this danger to cyclists form large vehicles could somehow be averted in the future. That means that this ground of challenge must fail because even if the Coroner had considered summoning a jury, she would have had to conclude that this pre-condition could not be satisfied.
There are two other reasons why this court should not intervene. First, this is a case which has no unusual features which distinguishes it from many other road accidents. In R v HM Coroner for the Eastern District of the Metropolitan County of West Yorkshire ex parte National Union of Mineworkers (1985) 150 JP 58, a picket had been knocked down by a lorry and it was of crucial importance that the facts of the case did not have:-
“any particular feature which distinguishes it from any other kind of road accident to the circumstances of which courts, time and time again, have to listen in order to reach a determination be it in criminal or civil proceedings” (per Watkins LJ at page 62 with whom the other members of the Court agreed).
Although the present case is tragic, similar reasoning could apply to it. It is very different from the Paul case where there was the unusual element of the paparazzi causing the accident. So the approach in the NUM case is another reason why the Coroner could not have been obliged to summon a jury.
A second reason why the verdict cannot be quashed because of the failure of the Coroner to summon the jury is that this court will only take that action if no reasonable Coroner could have refused to summon a jury (R v HM Coroner ex parte Wright [1996] 35 BMLR 57, 59 per Aldous LJ). The failure to summon a jury in the present case could not fall into that category.
Irrespective of whether the coroner considered whether to summon a jury, I reject this complaint and the weakness of this complaint might well explain why Miss Morris did not ask the Coroner to summon a jury at the start of the hearing.
VII. Issue 3: Unlawfully Restricting the Scope of the Inquest
Introduction
Miss Morris complains that the Coroner unlawfully limited the scope of the Inquest:-
in relation to the trajectory of the HGV lorry prior to the accident;
by failing to consider whether Miss Cairns could have been in any blind spot of the HGV lorry immediately leading up to the accident;
limiting the questioning of Mr Lopes regarding when he checked his mirrors prior to the collision;
precluding questioning on the eyesight of Mr Lopes; and
curtailing the questioning of Mr Lopes.
Questioning on the trajectory of the HGV lorry before the collision
Miss Morris points out that in the report prepared by PC Ewan Rathie the Collision Investigator he considered a number of matters in trying to reconstruct what happened and he came to the conclusion that the HGV might have made a “slight movement to the rightwas the lorry positioning itself towards the centre lane because of the narrowing lanes” [246]. When PC Clark was being questioned by the Coroner, he explained that the HGV was predominantly in one lane although slightly angled towards the second lane but “most likely to be wholly in lane one” (page 97).
The evidence given by Mr Nelson the cab driver who was following the HGV, was that the lorry “I thought... was veering right” [64]. The complaint that is made is that this matter was not pursued properly with Mr Lopes. When Miss Morris counsel for the Cairns family asked him about it, his counsel objected on the basis of his privilege against self incrimination and this was upheld by the Coroner.
PC Clark, who gave evidence relating to the report of PC Rathie were of the view that the HGV was entirely in one lane. In the light of the evidence of Mr Lopes, the Coroner checked matters with PC Clark who explained that lane one was only 3 metres wide but the HGV was only 2 ½ metres wide [138].
The evidence from Mr Nelson was that he had believed the lorry was “careering out to the right” but later he said of the lorry driver “I thought he was careering slowly out that way but obviously from the picture it wasn’t,” [70]. PC Clark said in evidence that he would not use the word “careering” of the lorry because “it looks like it has very gently veered towards lane two” [110]. In cross-examination by Miss Morris, Mr Lopes was asked if he manoeuvred his vehicle to the right and the Coroner upheld an objection by Mr. Lopes’ counsel. It was not suggested nor could it be that this ruling was wrong bearing in mind that Mr. Lopes could then have been prosecuted for causing death by dangerous or by careless driving.
In my view, the complaints of the claimant that the questioning of Mr. Lopes on this issue was unfairly curtailed have to be seen against the context that the product of an inquest is the Inquisition and the requirements of that are that it should answer four statutory questions namely “who the deceased was and when, where and how the deceased came by his [or her] death” (section 11(5) (b) of the Act). Rule 36 of the Rules states that “the proceedings and evidence at an inquest should be directed solely” to answering those questions and as I explained in paragraph 25, the Inquisition satisfies this requirement. It is not suggested, quite correctly, that article 2 of the ECHR is engaged because this is not a case where the State bore any responsibility for the death of Miss Cairns. In consequence, I agree with Mr Hough that the principal obligation of the Coroner was to determine by what means Miss Cairns came to her death and the Inquisition provided satisfactory conclusions according to that test.
In my view the Coroner allowed the witnesses to give their account and to be questioned subject to the obvious right of Mr Lopes to rely on the privilege against self incrimination. In any event, if I had been in any doubt about this I would have concluded that this issue was considered correctly and fully in the light of the obligations of the Coroner to which I referred in paragraphs 24 to 27 above. In addition, as I have already explained, Simon Brown LJ has stated that although the inquiry at an Inquest “is almost bound to stretch wider than strictly required for the purposes of a verdict. How much wider is pre-eminently a matter for the Coroner whose rulings upon the question will only exceptionally be susceptible to judicial review” (R (Dallaglio) v Inner West London Coroner [1994] 4 All ER 139, 155b per Simon Brown LJ).
Insufficient Inquiry in Relation to the Blind Spot
PC Rathie explained in his report that there was a blind spot measuring 1.2 metres long by 1.3 metres wide of the front off-side corner of the lorry where he could stand without PC Pledge seeing him. He explained that PC Pledge was 6 foot tall, while PC Rathie was 5ft 11 inches tall and the driver was 5ft 6 inches tall. [243]
The evidence of PC Clark was that blind spots are quite idiosyncratic, because they depend not only on the height of the driver but also on the driving position of the driver, the seat position and posture. He accepts that mirrors properly adjusted according to regulations are supposed to reduce blind spots [103]. He explained that a driver cannot be looking in all his mirrors at the same time and therefore he cannot say whether Miss Cairns would have been in a position on her bike prior to the impact where he would have expected a lorry driver to be looking. It seems to me that there has been perfectly adequate inquiry on this issue especially in the light of the duties of the Coroner in relation to the Inquisition to which I have referred in paragraphs 24 to 27 above.
Curtailing the Discussion on Mirror Checking
Mr Lopes was asked about the mirrors in which he was looking, his answers were really based on what he would have done rather than what he actually did, but he did say that he cannot look in two directions at once namely looking at the mirror and also looking at the road [129]. Miss Morris also questioned him about this, but after her questioning which occupied much of about 9 pages of the transcript, the Coroner said that Miss Morris could not go much further with that questioning and she asked Miss Morris to move on [141].
This criticism of the Coroner for curtailing this cross-examination has to be considered against the fact that Mr Lopes had started his evidence by reading out his statement in which he explained that before he drove off having stopped at the traffic lights, he looked at his left mirror, the front mirror and the right mirror and he did not see a cyclist [128].
Miss Morris then cross-examined him about this and when the Coroner objected to Miss Morris’ questioning in the way I described in paragraph 66, her response was “I’ve dealt with it as much as I need to” [142] and that indicates to me that she was content for the questioning on that issue to stop. I do not think that there is any merit in the complaint.
Proper Inquiry Relating to Mr Lopes’ Eyesight
Miss Morris did ask Mr Lopes about his eyesight but counsel for Mr Lopes pointed out that it was relevant to the criminal proceedings and the Coroner ruled that Mr Lopes was not required to answer it [141]. There can be no valid objection to that decision. In any event, it was clear in evidence given by PC Clark that Mr Lopes failed a police eyesight test [105] and I cannot see what further questioning was required.
Guillotine
Miss Morris complained that the Coroner cut matters short such as with the comment to which I referred in paragraph 66 above. She also stresses that the Coroner had explained that it was not an uncommon occurrence for cyclists and large vehicles to come into contact with the cyclist almost invariably suffering serious or fatal injuries. As I have explained in the case where the Coroner asked Miss Morris to move on then her reaction, which, with respect I think was correct was “I have dealt with it as much as I need to” [142].
I do not think there is any justifiable complaint that can be made against the Coroner for the way she handled the inquest to be conducted. She permitted all the relevant witnesses give evidence and they dealt with all the critically important issues. It must not be forgotten that it is not the purpose of the Inquest to apportion civil or criminal liability, but merely to answer the questions to which I referred in paragraphs 24 to 27 above that is what has been achieved.
VIII. Issue 4: Failure to make a Rule 43 Recommendation
Rule 43 provides in so far as is material that:-
“Prevention of future deaths
43.—(1) Where—
(a) a coroner is holding an inquest into a person’s death;
(b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and
(c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner may report the circumstances to a person who the coroner believes may have power to take such action.”
The case for the claimant is that it would have been appropriate to make such a recommendation bearing in mind the comments made by the Coroner in her reasoning and so Miss Morris says that a recommendation ought to have been made. She points out that paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009 when brought into force will impose a duty to make a report where the conditions are met irrespective of whether the Inquest is an Article 2 Inquest. That provision does not apply to the present inquiry and so it becomes necessary to see whether a recommendation ought to have been made.
It will be noted from the wording of Rule 43 that there are two discretionary decisions to be made by the Coroner before making such a recommendation. First, it has to be a case where “in the Coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances [creating a risk of other deaths]or toeliminate or reduce the risk of death created by such circumstances”.
The second discretion is that even if the three conditions in Rule 43(1) are satisfied, then the Coroner “may” report the circumstances to a person who the Coroner believes may have power to take such action. As I have explained, the local authority had indicated that it did not wish for the inquest to be adjourned in order to ascertain if there had been other accidents at the time.
It is noteworthy that counsel did not request a recommendation at the time of the hearing and much more importantly, as I have explained in paragraph 52 above, PC Clark of the Collision Investigation explained that he was unaware of anything which could be done to prevent accidents of the kind in which Miss Cairns was tragically killed. In my view, no facts have been put forward to show why it was Wednesbury unreasonable for a Coroner to take the view that Rule 43 should not be invoked.
IX. Conclusion
As Miss Morris wishes me to do, I have considered each of her complaints not only individually but also cumulatively. I have come to the conclusion that whichever way the claimant’s submissions are considered, they must be rejected. If I had been in any doubt about this conclusion, I would have been fortified in reaching it because the courts will not normally order a fresh inquest unless satisfied that a different verdict might be reached on important new evidence heard (see Re Rapier [1988] QB 26. 36-39). I am a long way from being satisfied of this.
I am conscious that this judgment will be a disappointment to the Cairns family to whom we all send our deepest sympathy but my duty is to apply the law, which I have sought to do. They will have the consolation that their counsel has very ably put forward all points open to her. The claim must be dismissed.