Accident Compensation Corporation v Adlam - [2016] NZHC 1487

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-000017 [2016] NZHC 1487

BETWEEN
ACCIDENT COMPENSATION

CORPORATION Appellant

AND

JEREMY CAMERON ADLAM Respondent

Hearing: 11 May 2016

Appearances:

A S Butler and O C Gascoigne for Appellant
H G de Groot for Respondent

Judgment:

1 July 2016

JUDGMENT OF GENDALL J

Introduction

[1] This appeal concerns the proper interpretation of the treatment injury provisions of the Accident Compensation Act 2001 (“the Act”) in light of the policy behind legislative amendments that created that regime in 2005 (the Injury Prevention, Rehabilitation and Compensation Amendment Act No. 2 (2005) (“the
2005 Amendment”).

[2] The respondent, Jeremy Cameron Adlam (“Jeremy”) is now aged 16 years. He was born on 20 March 2000. Immediately prior to his birth by emergency caesarean section Jeremy suffered a neurological injury described as intra-partum hypoxia which later caused severe cerebral palsy.

[3] Tragically, this catastrophic eleventh hour hypoxic event has meant that Jeremy with his cerebral palsy condition continues to suffer marked neurocognitive disability which affects every area of his daily living. Jeremy suffers deficits in
terms of mobility, upper extremity function, swallowing and fatigue and, because of

ACCIDENT COMPENSATION CORPORATION v ADLAM [2016] NZHC 1487 [1 July 2016]

these injuries, his mother acts as his full time carer. Jeremy will require significant care throughout his life.

The claim history

[4] It seems to be generally accepted that, prior to the event in question, Jeremy was a healthy viable child and that had a caesarean been effected earlier than it was, it is likely he would have been spared injury.

[5] Jeremy made an initial claim for ACC cover for what was said to be a “treatment injury” in terms of ss 32 and 33(1)(d) of the Act. This claim was lodged by his general practitioner in February 2006. On 6 June 2006 the appellant the Accident Compensation Corporation (“the ACC") issued a decision declining cover. That decision was upheld on review on 6 September 2011.

[6] Jeremy appealed that review decision to the District Court. On 10 August

2015, in a decision issued by Judge MacLean (“the District Court decision”), Jeremy’s appeal against the reviewer’s decision was allowed. In reaching that decision, Judge MacLean applied a hindsight analysis to the question of whether earlier intervention by Jeremy’s treatment providers would have provided a positive outcome for him and concluded that there was a “treatment injury” for which cover was available.

[7] The ACC now appeals against the District Court decision.

[8] There are two questions for consideration in this appeal (for which leave was granted):1

(a) Can a “failure to treat” occur in circumstances where there are no

observable indications for a different treatment course?

(b)Does a treatment injury occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better
result?

1 Adlam v Accident Compensation Corporation [2015] NZACC 401 at [11].

Factual background

[9] Generally the relevant facts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1487
Decision Date: 1 July 2016

CaseChat Overview and Summary

Accident Compensation Corporation v Adlam [2016] NZHC 1487 involved an appeal by the Accident Compensation Corporation (ACC) against a decision of the District Court that found that the respondent, Jeremy Adlam, was entitled to cover for his cerebral palsy caused by intra-partum hypoxia. The appeal raised two questions regarding the interpretation of the treatment injury provisions under the Accident Compensation Act 2001. The first question was whether a failure to treat could occur in circumstances where there were no observable indications for a different treatment course. The second question was whether a treatment injury occurred where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result. The High Court found that a failure to treat did not occur in the absence of observable indications for a different treatment course, and that a treatment injury did not occur based on objective hindsight analysis. The Court allowed the appeal and quashed the District Court decision, reinstating the ACC reviewer's decision of 6 September 2011. Costs were left undecided pending further submissions.

Orders