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Accident Compensation Corporation v Ambros

Accident Compensation Corporation v Ambros

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA172/05
[2007] NZCA 304

BETWEENACCIDENT COMPENSATION CORPORATION

Appellant

ANDMIKAEL MATTI AMBROS

Respondent

Hearing:24 July 2006

Court:Glazebrook, Arnold and Ellen France JJ
Counsel:B A Corkill QC and N D Lawson for Appellant

Respondent in Person
B D Gray QC as Amicus Curiae

Judgment:20 July 2007 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe answer to the question in the case stated (set out at [6] below) is “no”.
CThe matter is referred back to the High Court to be dealt with in accordance with the principles set out in this judgment.
DThere is no award of costs.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Was the High Court’s test of causation correct?  [8]
Submissions of the parties  [8]
Issues  [10]
Is this case governed by Atkinson?  [11]
Are there grounds for reviewing Atkinson?  [17]
What is the traditional test for causation?  [22]
What common law developments have there been?  [26]
industrial diseases  [27]
loss of chance  [37]
informed consent  [47]
How have the courts otherwise dealt with the difficulty of proof
and uncertainty?  [53]
evidential onus  [55]
inferences  [65]
statistics  [71]
proximity  [77]
Should we accept Mr Gray’s suggested test?  [79]

What should happen now?  [85]
The submissions of the parties  [86]
What was the evidence on causation before the High Court?              [89]
What were the factual findings of the High Court?  [98]
Was the evidence before the High Court sufficient to prove
causation?  [102]
Does this Court have jurisdiction to make findings on causation?     [109]
Should the matter be referred back to the High Court or
the District Court?  [113]

Result and costs  [114]
Introduction
[1]       In the early hours of 14 July 2000, Mrs Susan Ambros was admitted to North Shore Hospital after suffering chest pains. Tragically, she died there on 20 July 2000. At the post mortem examination, it was discovered that she had suffered an acute myocardial infarction (heart attack) about one week prior to her death and a further one approximately 24 hours before her death. The heart attacks were secondary to a rare condition called spontaneous coronary artery dissection (SCAD). Mrs Ambros had given birth to her first child just under a week before her admission into hospital and SCAD in women is commonly associated with pregnancy and childbirth.
[2]       Mr Ambros sought cover under the then accident compensation legislation, the Accident Insurance Act 1998 (the 1998 Act), in relation to his wife’s death. The claim was based on medical error or medical mishap. The Corporation declined cover. That decision was upheld on review and an appeal to the District Court was dismissed. On 8 February 2005 Mr Ambros’ appeal to the High Court succeeded.
[3]       A full Court of the High Court (Harrison and Heath JJ), in Ambros v Accident Compensation Corporation HC AK CIV 2004-404-3261 21 March 2005, held that Dr…

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: [2007] NZCA 304
Decision Date: 20 July 2007

CaseChat Overview and Summary

In Accident Compensation Corporation v Ambros, the Court of Appeal of New Zealand addressed the issue of causation in the context of medical negligence claims under the Accident Compensation Act 1998. The appeal was allowed, and the matter was referred back to the High Court for reconsideration in light of the principles set out in this judgment. The Court held that the High Court had applied an incorrect test for causation, which required the claimant to prove only a close temporal link between the injury and the medical error and to exclude inevitability of injury and supervening cause. This test was deemed inconsistent with the principles set out in Atkinson v Accident Rehabilitation Compensation and Insurance Corporation, which established that causation must be proved on the balance of probabilities.

The Court rejected the claimant's argument that a modified approach to the traditional principles of causation was required by the Act. Instead, the Court held that the traditional test for causation, which requires proof of causation on the balance of probabilities, should be applied. The Court also rejected the suggestion of Mr Gray, who appeared as amicus curiae, that a presumption of causation should be created when certain facts exist and in the absence of conflicting evidence. The Court found that such a test would be incompatible with the Act and the common law developments since Atkinson.

The Court held that, in order to uphold the claimant's appeal, it would need to depart from Atkinson. However, the Court was of the view that Atkinson was correctly decided and that there were no grounds for reviewing the decision in that case. The Court also found that the Act must be seen as a legislative acceptance of the principles in Atkinson, and any change to those principles would need to have been made by Parliament by amendment to the Act.

The Court further held that, in order to prove causation in medical negligence cases, the claimant must establish a causal link between the medical error and the injury. The Court discussed the ways in which courts have traditionally dealt with difficulties of proof and uncertainty, such as the shifting of the evidential onus, the drawing of inferences, the use of statistics, and the emphasis placed on the proximity of the medical misadventure and the injury or death. The Court found that, while these methods may be useful in some cases, they do not suffice to prove causation in the absence of sufficient evidence to meet the required standard of proof.

Finally, the Court held that, as the case had been stated by the High Court, the matter should be referred back to that Court for reconsideration in light of the principles set out in this judgment. The Court also noted that, if the High Court decided that the parties should be allowed to adduce further evidence, it would be appropriate for the matter to be referred back to the District Court.

Orders