Dr. Butnam, who is responsible for the death certificate,deposes that he did not form any opinion as to the cause of death,and had he filled up the certificate himself says he would haveput down the cause of death differently.
Dr. Thomasz was unable to say what the cause of deathwas, and does not know how he would have written the certificate.
( 250 )
1005.He says he ‘/ might have said exhaustion due to lumbar abscess/
May 25. not that he is prepared to depose to that being the cause of deathExyabi>,cu. °r <®ly cause of death.
Even admitting that Dr. Garvin’s report has the same-probative value as sworn' evidence, which it clearly has not, henowhere in that report states ** in my opinion the only cause ofdeath was lumbar abscess complicated with acute mania.” Hemerely relates what were the contents of the certificate of deathissued by him. It may be that the certificate did properly 6etout the cause of death; there is, however, no evidence of anyprobative value to support it.
The argument for the plaintiff was that only a post-mortemexamination of the deceased's body could possibly elicit what thecause of death was. Accepting that, to be the plaintiff’s case, itis evident that the burying of the body without a post-mortemexamination was entirely due to the fault of one of the servantsof Government in signing as true a certificate which he now, byhis own evidence, admits he cannot support, as he formed noopinion himself as to the cause of death. If it had not been forthe granting of that certificate there must have been a post-mortemexamination of the deceased’s body before burial. The Solicitor-General argues that the defendant was responsible for the buriaLwithout a. post-mortem examination, but the defendant could nothave buried the body without the medical certifiate granted byone of the Government’s own medical officers.
It will be noticed that up to this I have made hardly .anymention of Dr. Rodrigo’s evidence. My reason for so doing isthat the District Judge has commented very severely on thiswitness, and I thought it better in the first place to considerthe evidence of the expert witnesses against whom the plaintiff'scounsel could not allege anything, and both of whom had hadan opportunity of seeing the patient and knowing somethingof her case. Judging from the diplomas and degrees heldby Dr. Rodrigo, he appears to be well qualified to give anexpert opinion on'a medical subject, and he appears to me tohave given his evidence with considerable ability, and to havequoted authorities in support of the propositions adduced byhim. The Solicitor-General referred to the witness more than' once with great contempt. I am unable to find any justificationfor this. His cross-examination has not, in my opinion, shownhim to be a sham expert or a medical witness who has edld hisknowledge for the purpose of advancing the defendant’s case. Heis undoubtedly a young man, and consequently his experience islimited.
( 251 )
– He is alleged to have made some unfounded charges against hissuperior officers in the Medical Department. It is impossible for MaySS.mq to adjudicate without material whether the charges brought by Layabd,CJhim were unfounded or not. Assuming, however, that he waswrong in attributing the loss of an appointment for which he hadbeen selected by the Secretary of State to the action of the Headof his Department, or in suggesting that Dr. Perry opposed^ hisappointment on account of certain letters written by him to thelocal papers—and there is no reason to think that he was right—Ido not consider I should be justified in dismissing his evidencealtogether, for it is supported to a very great extent by Dr.
Thomasz, and what Dr. Bodrigo concludes to have followed fromthe data sumbitted to him is confirmed by Dr. Thomasz admittingin almost every case the possibility of such following. Expertevidence is essentially necessary in this case, and the generaldictum of Lord Campbell, to which the ^District Judge refers, hasnot abolished expert evidence, and certainly never will do awaywith medical scientific evidence.
The question, however, remains for me to decide as to whether
I can* rightly adjudicate that the burns were the sole cause of death.
There is a great deal to be said in favour of Dr. Bodrigo’s opinion,
but I must^ say, on the material before me, I am not prepared to
definitely hold that the bums were the sole cause of death.

The- statement made by Dr. Garvin that they would retardrecovery, the evidence of Dr. Thomasz that they would possiblyhave resulted in serious consequences and. would possibly havebeen fraught with danger to Mrs. Smith’s life, the evidence ofDr. Butnam that they complicated her case, and the evidence withregard to the healing of the abscess and the sudden and unaccount-able change for the worse on the 5th June, all point to theburns as contributing to the death, though possibly not being thesole cause of it; and had the District Judge so held, I would haveaccepted his verdict.
If the Attorney-General is prepared to accept this finding, I willremit the case to the District Judge for the amount of damages tobe ascertained and determined.
On the other hand, if the Attorney-General insists upon histechnical right to have the issues, which ought to have beenaccepted by the District Judge, as I pointed out earlier in thisjudgment, placed on record and determined by the' District Court,
I see no other course open but to remit the case to the DistrictJudge .for a new trial. As the respondents ought to have con-sented to the issue suggested by appellant’s counsel being settledby the District Judge and determined by him, the respondent
1906.May 96.
Utabo, C. J.
( 252 )
must pay the costs of the abortive trial in the District Court andof this appeal.
The appellant to be at liberty, in the new trial, to read as-evidence the deposition of any witness taken at the first trial,provided 6uch witness's presence at the new trial cannot bereadily obtained.
The Solicitor-General preferred a new trial.
The Chief Justice: It will be noted that the Solicitor-Generalwishes a new trial on behalf of the Crown, and order will bemade as in the second alternative.
Monorkiff, J. (whose written judgment was read by the ChiefJustice) considered the case on the merits at length and concludedas follows: “ I need not say more on the materials before us thanthat the bums contributed to the death of the patient. I agree tothe order suggested by the Chief Justice."