Accident Compensation Corporation v Stanley

[2013] NZHC 2765

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2013-488-206

[2013] NZHC 2765

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Appellant

AND

SHAUN STANLEY

Respondent

Hearing:

13 August 2013

Counsel:

J Coates for Appellant

S Stanley, in person, Respondent

Judgment:

22 October 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 22 October 2013 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Claro, PO Box 11-455, Wellington Copy to:

Appellant in person

ACCIDENT COMPENSATION CORPORATION v STANLEY [2013] NZHC 2765 [22 October 2013]

Contents

The appeal  [1]
The factual matrix  [3]
The subsequent medical reports  [17]
The District Court judgment  [26]
The Corporation’s argument  [30]
Mr Stanley’s position  [31]

Analysis

(a)An appeal on a question of law  [33]

(b)The relevant legislation  [36]

(c)Did Judge Joyce make an error of law?

(i)Personal injury  [43]

(ii)Treatment injury  [47]

Result  [60]

The appeal

[1] The Accident Compensation Corporation (the  Corporation)  appeals,  with leave,1 against a judgment given by Judge Joyce QC, in the District Court at Whangarei on 10 September 2012.2 On appeal from a review decision, Judge Joyce held that the Corporation was liable to provide “treatment injury” cover for Mr Stanley, under the Accident Compensation Act 2001 (the Act).

[2]      In granting leave to appeal, Judge Beattie identified two questions of law:3

(a)Whether the Judge misapplied the law in relation to the right to cover; in particular, the requirement that a claimant must have a physical injury, in accordance with s 26 of the Act; and

(b)Whether the Judge misinterpreted s 32 of the Act, by failing to take account of the definition of “treatment injury”.  That does not include a personal injury that is wholly or substantially caused by a person’s underlying health condition.

1       Accident Compensation Corporation v Stanley [2013] NZACC 58.

2       Stanley v Accident Compensation Corporation [2012] NZACC 302.

3       Accident Compensation Corporation v Stanley [2013] NZACC 58 at paras [3] and [4].

The factual matrix

[3] In May 2007, Mr Stanley reported having difficulty in remaining steady, while walking.  His condition worsened over the following two to three weeks.  On

21 May 2007, Mr Stanley’s general medical practitioner referred him to the Whangarei Base Hospital for an urgent assessment. From that time, until he saw an orthopaedic surgeon in July 2009, Mr Stanley was referred to about ten other health professionals.

[4] Following Mr Stanley’s initial examination at the hospital, he was thought to have suffered a stroke. As a result, CT and MRI scans were taken, but only of his head. Subsequently, he was discharged with an outpatient appointment made for two months later.

[5] At the outpatient appointment, Mr Stanley pointed  out  to  the  attending medical practitioner that he believed the problem was emanating from his neck, rather than his head. That assertion became a constant theme of the interactions between Mr Stanley and the various health professionals by whom he was seen over the next two years.

[6] On 20 July 2007, Dr McGrath, a physician whom Mr Stanley had seen at the hospital, reported to Mr Stanley’s general practitioner.  At this time, Mr Stanley had a chronic headache and had been unable to return to work. Dr McGrath recorded that the brain scan was normal (as were blood tests) and that she believed Mr Stanley had suffered a “small vertebrae-baislar territory ischaemic event causing ataxia vertigo”. Ataxia is the state whereby a person has an inability or difficulty in coordinating voluntary movements. In Mr Stanley’s case, that was believed to have manifested itself in his walking movements.

[7] Mr Stanley continued to have difficulty walking.  In November 2007 he was seen by a neurologist, to whom he was referred by his general practitioner. Dr Barber, the neurologist,  thought it possible that there might have been a small vertebrae-baislar ischaemic event, but believed the progressive nature of the onset of the symptom was unusual. He considered the persisting symptoms and signs were untypical of a stroke.

[8]    After a series of further examinations, CT and MRI scans were undertaken, on 18 April 2008. They were of Mr Stanley’s brain and cervical spine. Dr McGrath reported, on 23 May 2008, that the scans revealed a “fusion of the C2–C3 vertebral bodies and some disc prolapse at C4–5 with some impingement of the cord at that level”.

[9] Despite the result of the MRI scan and Mr Stanley’s constant self-reporting of problems with his neck, Dr McGrath did not refer Mr Stanley to an orthopaedic surgeon. Dr McGrath’s failure to do so is alleged to be the  trigger  point  for treatment injury cover.

[10] After considering the specialist reports that she had obtained, Dr McGrath expressed her view that the condition was “in the class of somatoform disorders”.4 She said that she did “not feel that the disc changes on the MRI cervical spine scans [were] the cause of [Mr Stanley’s] problems”.

[11]    Mr Stanley’s condition worsened.  By January 2009, he had been readmitted to the Whangarei Base Hospital. At that stage, he was suffering from headache, light headedness, slurred speech and paraesthesiae. Despite the fact that Mr Stanley’s general practitioner had forwarded a note in December 2008 to one of the specialists responsible for his care, saying that he personally considered that Mr Stanley “has suffered some event we are missing”, no further tests appear to have been carried out. The diagnosis was not reviewed.

[12] Some two years or so after the initial complaint, at Mr Stanley’s insistence, his general practitioner referred Mr Stanley to an orthopaedic surgeon. In advance of the consultation, another MRI scan was taken, on 22 June 2009.

[13] Mr Stanley met with the surgeon, Mr Ratahi, on 10 July 2009, at Whangarei Hospital. Mr Ratahi examined Mr Stanley and considered the results of the MRI scan. Mr Ratahi found “signal changes” within the spinal cord, suggesting “myelopathy”.  Mr Ratahi stated that his examination of Mr Stanley was “consistent

4       Somatisation is the process by which a person’s psychological needs are expressed in the form of physical symptoms.

with the diagnosis of cervical myelopathy which is affecting his left side more than the right”. He recommended that Mr Stanley undergo surgery. The surgical intervention has had beneficial results. While it has not “cured” Mr Stanley’s condition, there is little doubt that it has alleviated his suffering.

[14]  On 18 December 2009, two of the physicians (Dr McGrath and her colleague, Dr Kraus) at Whangarei Base Hospital, who had previously seen Mr Stanley, wrote to him. Their letter makes it clear that they had received information that he had “experienced a good outcome from [his] recent C3–4 anterior cervical fusion and the compression, with relief of [his] previous symptoms including headache and weakness in the arm”. Dr McGrath and Dr Kraus indicated to Mr Stanley that they had “been asked to review [their] approach to [his] type of case in the future”.

[15]Significantly, in the context of the appeal, the two physicians wrote:

We sincerely apologise for not taking your neck symptoms more seriously previously and not referring you earlier to an Orthopaedic Spinal Surgeon for an opinion on the benefit of surgery. We genuinely did not feel that your initial presentation could be due to neck pathology and did not feel that the findings on your MRI neck scan would mean that you were a candidate for surgery. Clearly we were incorrect. In future, we will consult with our Spinal Orthopaedic Colleagues much sooner. We are sorry that you felt we were not thorough and open minded and that we were hasty and discourteous in our approach to you. That was certainly not our intention. We accept that you do not want us involved in your care in the future. As a result of your case, we will consult more widely on cases where the diagnosis remains elusive and in particular, we will seek advice from colleagues outside our speciality department.

(emphasis added)

[16] Mr Stanley’s general practitioner lodged a “treatment injury” claim with the Corporation, on 18 May 2010. The Corporation obtained reports from a number of specialists. On the Corporation’s interpretation of those reports, “treatment injury” cover was not available. Mr Stanley applied for a review of that decision. The review was dismissed. He appealed to the District Court.

The subsequent medical reports

[17] As is customary when a claim of this type is made, the Corporation obtained reports from a number of health professionals.

[18] In a letter dated 20 July 2010, Mr Ratahi responded to the Corporation’s request for a report. He referred to the initial consultation, on 10 July 2009, and referred to “a complex history of headaches and neurological symptoms” that had been provided to him by Mr Stanley and which he described as having “been attributed in part to a cerebral cause”. Mr Ratahi stated that some of Mr Stanley’s symptoms and clinical findings were “attributable to cervical radiculopathy and myelopathy”. This view was based both on Mr Ratahi’s clinical impression and findings shown in the 2008 and 2009 MRI scans. As a result, Mr Ratahi had recommended “surgical decompression and fusion at the C4/5 level”.

[19]  Mr Stanley underwent surgery on 22 October 2009.  Mr Ratahi described Mr Stanley’s post-operative recovery as “unremarkable”. On review at his outpatient clinic, Mr Ratahi reported that Mr Stanley “claimed to have an improvement in his occipital headaches, but he had ongoing neck discomfort with radiation of pain to his left shoulder, and there was no change in his neurological symptoms”. Mr Ratahi reported that on a further review, on 4 May 2010, Mr Stanley considered “that overall his symptoms had settled but he continued to experience burning sensations in both upper and lower limbs”.

[20] Mr Taine is an orthopaedic surgeon from whom an opinion was sought. Mr Taine’s report was dated 10 August 2010. Mr Taine acknowledged that Mr Stanley’s initial presentation in 2007 posed challenges so far as diagnosis was concerned because there was “a mixture of signs and symptoms including ones that could not be ascribed to a cervical spine problem”. Nevertheless, Mr Taine opined that it was “more certain to say that an opinion regarding the possibility of [Mr Ratahi’s] diagnosis and hence consideration for surgery was appropriate after his MRI [scan] in April 2008”. Mr Taine’s conclusion was that the abnormal MRI finding in April 2008 justified referral for an opinion from an appropriate speciality, orthopaedics or neurosurgery.

[21] Mr Taine commented on whether delay had caused any exacerbation of Mr Stanley’s underlying condition. He said:

The  possibility  of  a  worse  outcome  from  a  delay  cannot  be  overlooked although it is not certain.  So I would see a date of injury as April 2008, the

injury being cord compression from the till seen by the orthopod, and his ongoing symptoms from the cervical cord representing the current effects of the injury.

(emphasis added)

[22]    On 22 September 2010, Mr Macdonald, a consultant neurosurgeon, prepared a report for the Corporation. After rehearsing the background and referring to relevant written communications, Mr Macdonald expressed the opinion that “complete resolution of symptoms is unusual” when treating a patient for cervical myelopathy. He stated that “once the diagnosis of a cervical myelopathy was made, referral to an orthopaedic surgeon for a spinal decompression was a very reasonable action”. Having said that, like the other medical practitioners, Mr Macdonald acknowledged that Mr Stanley’s original presentation made diagnosis very difficult. Further, he said that “it is probable that the cervical myelopathy would not account for all the symptoms that Mr Stanley described”.

[23]    Mr Macdonald responded to the specific request for external clinical advice:

...

1.As I have mentioned above, the diagnosis of a cervical myelopathy was particularly difficult to make in this particular situation, but had it been made earlier referral for a cervical decompression would have been reasonable.

2.As Mr Taine has commented, it is difficult to know whether the cervical myelopathy would account for all of the patient’s symptoms, particularly in view of the fact that the MR imaging of the cervical spinal cord remained the same in 2008 and 2009.

The letter from Dr Nicole McGrath dated 23.06.10, does suggest to me that there had been an improvement in Mr Stanley’s neurological status, though in my experience, if there has been a contusion of the spinal cord, then complete resolution of the symptoms is unusual.

I would doubt if the delay in making this diagnosis is unlikely to cause a deterioration in the symptoms, and it is also my impression that some of the symptoms are likely to be unrelated to a cervical myelopathy. It is just to be hoped that Mr Stanley’s symptoms do improve with the passage of time following the cervical decompression.

...

It is my impression from clinical experience that deterioration of neurological function in a cervical myelopathy is usually slow and I would doubt if the delay from presentation to the MR imaging in April 2008 would

represent a failure to treat, although I believe this is possible. Mr Taine has commented that a possibility of a worse outcome from the delay cannot be overlooked, although it is not certain. This in particular is in view of the fact that there are no signal changes in the spinal cord itself reported in the MR imagining to suggest a cervical myelomalaccia.

(emphasis added)

[24] Dr Lennane provided a report to the Corporation on 29 September 2010. Dr Lennane described himself as a “Consultant Physician”. Dr Lennane expressed some surprising views about the actual diagnosis made by Mr Ratahi, concluding with an observation that questioned “even now whether the diagnosis [was] the correct one”. Dr Lennane also opined that the intense pain from which Mr Stanley continued to suffer was not “due to [any] misdiagnosis” but rather to “the underlying medical condition, whatever this may be”.

[25] Dr Lennane set out his position on the effect of the April 2008 and June 2009 MRI scans on the question of diagnosis:

... An MRI scan on 18/04/08 was reported as showing C4/5 disc protrusion causing mild ventral cord deformity with possibly increased cord signal, and moderate left C4/5 and mild left C6/7 exit foramen stenoses. He saw many specialists, including 2 neurologists, 2 psychiatrists, a muscular medicine specialist and a Professor of Occupational Health. None of these eminent persons thought that his clinical picture was explainable by the cervical MRI findings, and their consensus diagnosis was of an undifferentiated somatoform disorder and depression.

A 2nd MRI scan of the neck on 22/06/09 was reported as showing no evidence of cord signal abnormality. In June 2009 he was seen by an orthopaedic surgeon who diagnosed significant cervical stenosis and performed surgical cervical decompression and fusion on 22 October 2009. Since then there has apparently been some clinical improvement with partial relief of some of Mr Stanley’s symptoms.

The District Court judgment

[26] On appeal, it was necessary for Judge Joyce to determine whether, on the evidence available to him, Mr Stanley had made out a case for treatment injury cover. The Judge considered the relevant statutory provisions. His framework for analysis posed four discrete questions:5

5       Stanley v Accident Compensation Corporation [2013] NZACC 302 at para [68].

(a)Did Mr Stanley suffer a “personal injury”?

(b)Was the personal injury suffered in the course of seeking or receiving treatment?

(c)Was the treatment given by a registered health professional?

(d)Was there a causal link between the treatment and the injury?

[27]   That approach required the Judge to consider a number of discrete provisions of the Act, in which relevant terms are defined. Those terms are “personal injury”,6 “treatment”7 and “treatment injury”.8 In addition, the nature of the relevant causal link, and the appropriate approach to drawing inferences to establish such a link, required consideration, in light of the Court of Appeal’s judgment in Accident Compensation Corporation v Ambros.9

[28]    After carefully reviewing the evidence before him, the Judge found:

(a)The “apparent facts deny room for any conclusion other than that there was a mis- or non-diagnosis which inevitably meant a treatment delay, hence a failure to treat in a timely manner”;10   and

(b)Mr Stanley did suffer a treatment injury because his health condition deteriorated after the 18 April 2007 MRI scan but was significantly ameliorated by the surgery performed by Mr Ratahi in July 2010.11

[29] Judge Joyce held that the definition of “personal injury” in the Act was “as broad as it is long”, observing that a “mere strain or sprain” could be sufficient to obtain cover.12  The Judge considered that in the period between the initial MRI scan

6       Accident Compensation Act 2001, ss 20 and 26.

7       Ibid, s 33.

8       Ibid, s 32.

9       Accident Compensation Corporation v Ambros [2008] 1 NZLR 340 (CA).

10      Stanley v Accident Compensation Corporation [2013] NZACC 302 at para [79].

11      Ibid, at paras [79] and [92]–[95].

12 Ibid, at para [98].

and the surgery, Mr Stanley suffered “distinctly more than that by way of personal injury”, concluding:13

[100] Putting it plainly, he was - he remained - quite severely disabled for a very significant period of time which state of affairs would have been substantially alleviated (and thus the period of significant disability foreshortened) had he had the benefit of a timeous diagnosis and ameliorating treatment.

...

[106] Starting then with the ‘when’ and applying s 33 in that way to the facts as I find them:

(a)the treatment injury occurred no later than when the Apri1 2008 MRI was not acted upon by referring Mr Stanley to an orthopaedic surgeon; and turning now to the ‘whether’

(b)that treatment injury comprised and was represented by the very significant symptomology that, in the events that happened, went unalleviated until Mr Ratahi operated.

(original emphasis)

The Corporation’s argument

[30]     Mr Coates, for the Corporation, submitted:

(a)There had been no “treatment” for the purpose of the definition of “treatment injury”.

(b)That being so, there could be no “failure to provide treatment, or to provide treatment in a timely manner”.

(c)If there had been a failure to provide treatment, or to provide treatment in a timely manner, that failure did not cause Mr Stanley’s disease (condition) of the spine, or the symptoms from which he suffered. That cause was his underlying illness.14

13 Ibid, at para [99]. Section 33 of the Act, to which Judge Joyce refers, is set out at para [41] below.

14      On the causation question, Mr Coates calls in aid Accident Compensation Corporation v Ambros

[2007] 1 NZLR 340 (CA) at paras [65] and [67].

(d)As there was no treatment injury, Mr Stanley was not entitled to cover for personal injury.

Mr Stanley’s position

[31] Understandably, as a lay litigant, Mr Stanley was unable to respond to the detailed arguments advanced by Mr Coates, on a review of the statutory provisions. He did, however, refer to a subsequent report that had been provided to the Corporation by Dr Fenton.15 He suggested that, to use his words, “the delayed diagnosis actually dates from the original presentation in May 2007 and the history indicates that the weakness was not permanent until six months later”.

[32] At the conclusion of the hearing, I asked Mr Coates to make inquiries as to the provenance of Dr Fenton’s report, to ascertain whether it had any effect on the issues to be determined on appeal. Mr Coates advised that Mr Stanley had previously tried to obtain cover for a physical injury to his neck. Cover was declined on the grounds that he had “degenerative cervical disc disease”. As there was no appeal against that decision, Mr Coates submitted it was, for my purposes, irrelevant.

Analysis

(a)An appeal on a question of law

[33] On appeal to this Court, the question is whether the District Court Judge made errors of law16 of the type formulated by Judge Beattie.17 There are different types of legal error. They are addressed in differing ways.

[34] For present purposes, the nature of a “question of law” can be gauged by reference to the analogous provisions of the Employment Relations Act 2000.18 Delivering the judgment of the Supreme Court in Bryson v Three Foot Six Ltd,19 Blanchard J observed:

15      This was an Impairment Assessment report provided by Dr Fenton to the Corporation on 27 December 2012, after Judge Joyce had given his judgment of 10 September 2012.

16      An appeal to this Court may only be brought on a question of law: Accident Compensation Act 2001, s 162(1).

17      See para [2] above.

18      Employment Relations Act 2000, s 214.

19      Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC).

(a)An appeal cannot be regarded as being brought on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. Provided that the Court has not overlooked any relevant matter, or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless clearly

insupportable.20

(b)The ultimate conclusion of a fact-finding body can sometimes be so insupportable, or so clearly untenable, as to amount to an error of law. That will occur when proper application of the law requires a different answer. Such cases will arise rarely; for example, cases “in which there is no evidence to support the determination”, “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts

the determination”.21

(c)It does not matter whether an appellate Court would have reached a different conclusion on the evidence. The issue is whether the decision under appeal was a permissible option.22

(d)An error concerning a particular fact which is only one element in an overall factual finding cannot be said to give rise to a finding of “no evidence” where there is support for the overall finding in other portions of the evidence. It could, however, lead or contribute to an outcome that is insupportable.23

20 Ibid, at para [25].

21 Ibid, at para [26], citing with approval from Lord Radcliffe in Edwards v Bairstow [1956] AC 14 (HL) at 36. Lord Radcliffe’s observation were, themselves, based on those of Lord President

(Normand) and Lord Cooper, in Inland Revenue v Fraser [1942] SC 493 at 397 and Inland Revenue Commissioners v Toll Property Co Ltd [1952] SC 387 at 393, respectively.

22 Ibid, at para [27], adopting what was said by Lord Donaldson MR in Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 (CA) at 92.

23 Ibid, at para [28].

[35]    Mr Coates referred to the judgment of the Supreme Court in Austin, Nichols

& Co Inc v Stichting Lodestar,24 on the basis that, he contended, this was an appeal by way of rehearing. With respect, Austin, Nichols is not applicable. While s 162(5) of the Act (s 162 confers the right of appeal to this Court) incorporates by reference certain provisions of the High Court Rules and the District Courts Act 1947, none of them turn what s 162(1) describes as an appeal on a question of law into one by way

of rehearing. On an appeal brought on a question of law, an appellant is confined to the grounds of attack to which the Supreme Court referred in Bryson,25 as confirmed in its later decision in Vodafone New Zealand Ltd v Telecom New Zealand Ltd.26

(b)The relevant legislation

[36] The two questions identified by Judge Beattie27 are different in kind.  The first is concerned with misapplication of the law, the second with misinterpretation of a statutory provision. Those two questions are to be treated in different ways. On the Bryson approach, the former may only be attacked if the conclusion of the Court is “clearly insupportable”.28 The second involves consideration of  whether  the statute has been correctly interpreted and applied.

[37] The circumstances in which a person will have cover for personal injury suffered in New Zealand are set out in s 20 of the Act. Section 20(1)(c) and (2)(b) and (f) provide:

20    Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts or work-related mental injury)

(1)A person has cover for a personal injury if—

...

(c)the personal injury is described in any of the paragraphs in subsection (2).

(2)Subsection (1)(c) applies to—

...

24      Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).

25      See para [34] above.

26      Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2012] 3 NZLR 153 (SC) at para [51].

27      See para [2] above.

28      See para [34](a) and (b) above.

(b)personal  injury  that  is  treatment  injury  suffered  by  the person:

...

(f)personal  injury  caused  by  a  gradual  process,  disease,  or infection that is treatment injury suffered by the person:

....

[38] The term “personal injury” is defined by s 26 of the Act. Relevantly, it provides:

26  Personal injury

(1)   Personal injury means—

...

(b)physical   injuries   suffered   by   a   person,   including,   for example, a strain or a sprain; or

...

...

(2)      Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h).

....

[39] The breadth of the definition of “personal injury” was considered by the Supreme Court in Allenby v H.29 The context was unusual.  The Court was required to determine whether a pregnancy that followed a failed sterilisation procedure on a woman could bring about a mental injury that was covered by the accident compensation regime. Unanimously, the Supreme Court concluded that impregnation following a failed sterilisation did amount to a personal injury resulting from medical misadventure.30 All members of the Court agreed that where the purpose of medical treatment was to prevent pregnancy, and by reason of medical error that purpose was not achieved, the pregnancy occurred because of the medical

29      Allenby v H [2012] 3 NZLR 425 (SC).

30 While (as a result of amendments made to the Act in 2005) the concept of “medical misadventure” has been replaced by one of “treatment injury”, counsel for the Corporation did not contend that the change required a different conceptual approach. The background to the change is set out in Dobson J’s judgment in Accident Compensation Corporation v McEnteer HC Wellington CIV-2008-485-1800, 1 December 2008 at para [1].

error. That provided cover under s 20(2)(b) of the Act.31 Allenby demonstrates the broad nature of the definition of “personal injury” for the purpose of ss 20(1)(c) and (2)(b) and (f), and 26(1)(b) of the Act.

[40] The term “treatment injury” is defined by s 32 of the Act.  Relevantly, s 32(1) and (2) provides:

32   Treatment injury

(1)        Treatment injury means personal injury that is—

(a)suffered by a person—

(i)seeking treatment from 1 or more registered health professionals; or

(ii)receiving treatment from, or at the direction of, 1 or more registered health professionals; or

(iii)referred to in subsection (7); and

(b)caused by treatment; and

(c)not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—

(i)the person's underlying health condition at the time of the treatment; and

(ii)the clinical knowledge at the time of the treatment.

(2)        Treatment injury does not include the following kinds of personal injury:

(a)personal injury that is wholly or substantially caused by a person's underlying health condition:

(b)personal injury that is solely attributable to a resource allocation decision:

(c)personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.

....

31 Allenby v H [2012] 3 NZLR 425 (SC), at paras [2], [18] and [19] (Elias CJ), paras [56]–[76] (Blanchard J, for himself, McGrath and William Young JJ) and paras [85]–[89] (Tipping J). To similar effect, in Brownlie v Good Health Wanganui [2005] NZAR 289 (CA) the Court of Appeal held (albeit on the basis of a concession) that the progression of cancer due to medical error in screening amounted to a “physical injury” for the purposes of the 1999 version of the accident compensation legislation.

[41] In “determining whether a treatment injury has occurred, or when that injury occurred”, s 33(1)(b) and (d) of the Act defines the term “treatment”:

33   Treatment

(1)       For  the  purposes  of  determining  whether  a  treatment  injury  has occurred, or when that injury occurred, treatment includes—

...

(b)      a diagnosis of a person's medical condition:

...

(d)a failure to provide treatment, or to provide treatment in a timely manner:

[42]    The combined effect of ss 26(2), 20(2)(f), 33(1)(d) and 32(2)(a) is that:

(a)A personal injury is not one caused wholly or  substantially by a gradual process,32 unless it is a treatment injury as defined.33

(b)A treatment injury can arise from a failure to provide treatment in a timely manner,34 but does not include a personal injury that is wholly or substantially caused by the underlying health condition.35

These two propositions are fairly reflected in the two points identified in Judge Beattie’s leave judgment.36 I analyse whether Judge Joyce made any reversible error by reference to each of the propositions.

(c)Did Judge Joyce make an error of law?

(i)Personal injury

[43] Judge Joyce found that the worsening of Mr Stanley’s condition between the MRI scan in April 2008 and the time at which his condition was alleviated by

32      Ibid, s 26(2).

33      Ibid, ss 20(2)(f) and 26(2).

34      Ibid, s 33(1)(d).

35      Ibid, s 32(2)(a).

36      See para [2] above.

surgery, in July 2009, amounted to a “personal injury”.37 For convenience, I refer to this as the exacerbated personal injury.

[44] The reports before the Court were far from  unanimous  on  whether  Mr Stanley had suffered a “personal injury”. However, in my view, Judge Joyce was entitled to act on evidence from the two orthopaedic surgeons, Mr Ratahi and Mr Taine.38

[45] Mr Ratahi, while unable to compare Mr Stanley’s physical condition as at April 2008 with the symptoms shown at the time of the 10 July 2009 consultation, seems to accept that the gradual increase in severity of Mr Stanley’s suffering had been alleviated by the  surgical intervention. That position is supported by the contemporary reports of the various health professionals to whom Mr Stanley was referred between May 2007 and April 2008.  For example, I refer to the reports from

Dr McGrath and Dr Barber to Mr Stanley’s general practitioner in July and November 2007 respectively.39 After the April 2008 MRI scan, Mr Stanley’s condition worsened. The symptoms from which he was suffering when re-admitted to Whangarei Base Hospital in January 2009 demonstrate that.40 While his condition was alleviated after surgery, his neurological symptoms remained.41 Those points were supported, at least to a degree, by Mr Taine.42

[46] In this case, there was sufficient evidence for Judge Joyce to conclude that there was a personal injury that fell within s 26(2) and 20(2)(f) of the Act. I have already identified the evidence to demonstrate that an exacerbated personal injury did occur. Prima facie, the exacerbated personal injury was caused by the delay in referring Mr Stanley to an orthopaedic surgeon. That amounted to a failure to treat in a timely manner.

37      Stanley v Accident Compensation Corporation [2012] NZACC 302, at paras [79] and [92]–[95], at para [28](b) above.

38      See paras [18]–[21] above.

39      See paras [6] and [7] above.

40      See para [11] above.

41      See para [19] above.

42      See paras [20] and [21] above

(ii)Treatment injury

[47] The critical question, reflected in the second of the two points identified in Judge Beattie’s leave judgment,43  was whether the Judge had correctly interpreted s 32(2)(a), given that he seemingly moved directly from his conclusion that the exacerbated personal injury resulted from a failure to provide treatment in a timely manner to one that cover was available. I agree with counsel for the Corporation that Judge Joyce did not expressly consider whether the exacerbated personal injury

was one that was “wholly or substantially caused by [Mr Stanley’s] underlying health condition”.44  This issue requires fresh consideration, on appeal.

[48] My view on causation is informed by the decision of the Court of Appeal in Accident Compensation Corporation v Ambros.45 Causation is all-important in this case because the stark question is whether the exacerbated personal injury was caused by the failure to treat in a timely manner, or (wholly or substantially) by the underlying health condition.

[49] In addressing this issue, it is important to bear in mind the different ways in which lawyers and medical practitioners view the concept of causation, and the manner in which it can be proved.  Delivering the judgment of the Court in Ambros,

Glazebrook J said:46

[65] The requirement for a plaintiff to prove causation on the balance of probabilities means that the plaintiff must show that the probability of causation is higher than 50 per cent. However, courts do not usually undertake accurate probabilistic calculations when evaluating whether causation has been proved. They proceed on their general impression of the sufficiency of the lay and scientific evidence to meet the required standard of proof .... The legal method looks to the presumptive inference which a sequence of events inspires in a person with common sense ...

[66] The legal approach to causation is different from the medical or scientific approach. In March v Stramare [(1991) 171 CLR 506 (HCA)], Mason CJ at p 509 in the High Court explained that the scientific concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences, whereas in law problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. At law the cause is

43      See para [2](b) above.

44      Accident Compensation Act 2001, s 32(2)(a), set out at para [40] above.

45      Accident Compensation Corporation v Ambros [2008] 1 NZLR 340 (CA).

46      Ibid, at paras [65]–[67].

not the sum of the conditions, which are jointly sufficient to produce the occurrence. ...

[67] The different methodology used under the legal method means that a court’s assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has allowed the Court to draw robust inferences of causation in some cases of uncertainty (see para [32] above). However, a court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture (see, for example, Jones v Great Western Railway Co (1930) 47 TLR 39 at p 45 and Smith v Auckland Hospital Board [1965] NZLR 191 (CA) at p 214 per McGregor J and at p 220 per Gresson J). Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based on the whole of the lay, medical, and statistical evidence, and not be limited to expert witness evidence ...

[50] As part of its discussion in Ambros, the Court of Appeal considered questions relating to evidential onus, and its relationship to proof of causation. It did so in the context of its earlier decision in Atkinson v Accident Rehabilitation Compensation and Insurance Corporation.47 In Atkinson, the Court had rejected the notion of a reverse onus of proof in cases involving allegations of medical misadventure causing injury.48 In Ambros, the Court of Appeal focused on the two senses in which the allied concept of “evidential burden” may be used. Glazebrook J said:49

[55] ... In the first sense, it means the burden of adducing evidence on an issue on pain of having the trial Judge determine the issue in favour of the opponent. The second sense in which the phrase is used refers to the burden resting upon a party who appears to be at risk of losing on a given issue at a particular point in a trial. This merely involves a tactical evaluation of who is winning at a particular point, which can shift depending upon the trial dynamics. This is often referred to as the tactical burden.

[51] While the Court of Appeal, in Ambros, accepted that Atkinson had excluded the possibility of any change in the legal burden, it acknowledged that Atkinson did “not rule out” a “shift of the evidential burden, in either of the senses” to which it had referred.50 Endorsing the approach taken by the Supreme Court of Canada in Snell v Farrell,51  the Court of Appeal considered that a “tactical burden” passed to

47      Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR 374 (CA).

48 Ibid, at para [25]. See also Accident Compensation Corporation v Ambros [2008] 1 NZLR 340 (CA) at para [14].

49      Ibid, at para [55], citing Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA) at paras [44]–[47].

50      Ibid, at para [63], with reference to para [55], set out at para [50] above.

51      Snell v Farrell (1990) 72 DLR (4th) 289 (SCC).

the Corporation. A tactical burden may pass when “a party who appears to be at risk of losing on a given issue at a particular point in a trial” is faced with a situation in which other evidence that might support his or her case is in the power of the opponent to produce. As Lord Mansfield said in Blatch v Archer,52 as long ago as 1774: “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the exclusive power of one side to have produced, and in the

power of the other to have contradicted”.

[52] This approach was adopted by Dobson J in Accident Compensation Corporation v McEnteer,53 on an appeal in which the District Court Judge had held that once a claimant had brought himself or herself within the definition of “treatment injury” in s 32(1), a legal onus passed to the Corporation to establish that it was excepted by s 32(2). Dobson J rejected that approach, saying:54

[29] For the claimant, Mr Gorringe argued that the Corporation has overstated the effect of the judgment on this point. He suggested the judgment meant no more than that a “tactical onus” could shift once the claimant had done enough to make out the point in a prima facie way, so that that level of proof would be sufficient unless the opposing party (ie the Corporation) refuted that with evidence of its own. I agree that this is the essence of the analysis on onus in Ambros. However, the effect of paragraph [31] is as Mr Radich argued it. It does contemplate a positive onus on the Corporation to prove that the personal injury was wholly or substantially caused by a person's underlying health condition. With respect to the Judge, that formal shifting of onus is not warranted. What may well arise depending on circumstances in individual cases are varying extents of evidence that a claimant will need before there is enough on the balance of probabilities to establish any of the relevant negatives, in the absence of evidence challenging that situation on behalf of the Corporation. In that sense, there may be a “tactical” shift in the burden or onus. However, that is very different from attributing a formal onus from the outset on the party resisting cover.

(emphasis added)

[53] The point was also well made by Mallon J, in a judgment given on an application for leave to appeal to the Court of Appeal, in Sam v Accident Compensation Corporation.55   She said that “in assessing whether [a claimant had]

52      Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.

53      Accident  Compensation  Corporation  v  McEnteer  HC  Wellington  CIV-2008-485-1800,  1 December 2008.

54 Ibid, at para [29]. While McEnteer went to the Court of Appeal, this point was not addressed:

Accident Compensation Corporation v McEnteer [2010] NZAR 301 (CA).

55      Sam v Accident Compensation Corporation HC Wellington CIV-2008-485-829, 4 November

proved causation on the evidence, the Court can take into account the absence of counter evidence which ought to have been in [the Corporation’s] power to produce”.

[54]  Was Judge Joyce right to find that Mr Stanley had proved a treatment injury? To recapitulate, a treatment injury can arise from a failure to provide treatment in a timely manner, but does not include a personal injury that is wholly or substantially caused by an underlying health condition.56

[55] I have already found that there was sufficient evidence for Judge Joyce to conclude that the exacerbated personal injury occurred and prima facie, was caused by the treatment delay.57 Unless the exacerbated personal injury was wholly or substantially caused by Mr Stanley’s underlying health condition, he is entitled to cover.58

[56] No question was ever posed directly to the experts from whom the Corporation sought advice as to whether an exacerbated personal injury of the type found to exist by the District Court Judge had been caused by the underlying health condition, as opposed to a failure to treat in a timely manner. There was evidence, notably that of Mr Taine and Mr Macdonald, that could be interpreted as leaving open the possibility that the exacerbation of the personal injury arose from the delay

in treatment.59   Neither ruled out the possibility that the exacerbated personal injury

could have been caused by the delay in treatment. While there was evidence to the contrary, for example that of Dr Lennane,60 I agree with Judge Joyce that the approach taken by Mr Taine and Mr Macdonald is to be preferred.

[57] It was always possible for the Corporation to seek (from each expert) a specific opinion on whether any exacerbated personal injury was caused wholly or substantially by the underlying health condition, or by treatment delay. Had each of the experts been asked to express an opinion on that particular topic, it would have

2009, at para [4]. The decision from which leave to appeal was sought was Sam v Accident Compensation Corporation [2009] 1 NZLR 132 (HC).

56      See para [42](b) above.

57      See para [46] above.

58      See para [42](b) below.

59      See paras [21] and [23] above.

60      See paras [24] and [25] above.

been easier to assess where the probabilities lay. It is implicit from the legislation that cover will exist where the cause of the injury arises from a combination of an underlying health condition and a delay in treatment; so long as the underlying health condition is not the sole or substantial cause.

[58] Applying the principles set out in Ambros, confirmed in cases such  as McEnteer and Sam, and taking account of the different senses in which lawyers and medical people assess questions of causation,61 it was within the power of the Corporation to put evidence before the Court to assist in assessing the true cause of the exacerbated personal injury. But, it did not do so. In those circumstances, I consider that Judge Joyce was entitled, in the absence of other evidence pointing to the exacerbated personal injury being caused wholly or substantially by the underlying  health  condition,  to  find  that  a  treatment  injury  had  been  proved.

Independently, on the evidence, I reach the same conclusion.

[59] I suspect that the absence of any discussion of this issue in the judgment under appeal was due to the Judge’s view that there was no evidence to contradict the prima facie position.

Result

[60]   For those reasons, the appeal is dismissed.  I confirm Judge Joyce’s decision as to the availability of treatment injury cover.62

[61] As a litigant in person, Mr Stanley is not entitled  to  costs.  However, reasonable disbursements may be claimed. They shall be fixed by the Registrar and paid by the Corporation.

[62] I add the same addendum to this judgment as Judge Joyce made in the District Court. Nothing recorded or concluded in this judgment can be taken as any

61      Generally, see paras [50], [51], [52] and [53] above.

62      Stanley v Accident Compensation Corporation [2012] NZACC 302 at para [107].

kind of adverse reflection on any of the health professionals by whom Mr Stanley was seen. They were not parties to this proceeding and have not been heard.

P R Heath J

Delivered at 4.00pm on 22 October 2013