IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000017 [2016] NZHC 1967
BETWEEN JEREMY CAMERON ADLAM
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Submissions: Memorandum of Submissions from Applicant
dated 5 August 2016
Memorandum of Submissions from Respondent dated 10 August 2016
Memorandum of Submissions from Applicant dated 19 August 2016
Counsel:
H G de Groot for Applicant
A S Butler and O J Bouchier for RespondentJudgment:
23 August 2016
JUDGMENT OF GENDALL J (Dealt with on the papers)
Introduction
[1] This is a decision relating to an application filed on 18 July 2016 by the applicant Jeremy Cameron Adlam (Jeremy) for leave to appeal to the Court of Appeal against a decision I gave in this Court on 1 July 2016, ACC v Adlam1 which, despite his opposition, granted an appeal lodged by the Accident Compensation Corporation (ACC) from a District Court decision.
[2] Counsel for the parties have requested that this decision is one made on the papers. Counsel for Jeremy has filed a Memorandum of Submissions in support of
the application dated 5 August 2016. Counsel for the respondent Accident
ADLAM v ACC [2016] NZHC 1967 [23 August 2016]
Compensation Corporation has filed a Memorandum of Submissions in opposition dated 10 August 2016 and counsel for Jeremy has filed submissions in reply dated 19
August 2016. I have now had an opportunity to consider these submissions and give this decision on the basis of the material filed.
Background
[3] Jeremy, who is now aged 16, suffered hypoxia immediately prior to his birth which occurred by way of emergency caesarean. This later manifested as severe cerebral palsy. The respondent ACC declined cover under the relevant Accident Compensation legislation for a treatment injury on 6 June 2006.
[4] ACC's decision was then the subject of a review which upheld this decision
on 6 September 2011. Jeremy then appealed against the reviewer’s decision and on
10 August 2015 Judge MacLean in the District Court allowed his appeal against that decision. Essentially, Judge MacLean in his decision applied a hindsight analysis to the question of whether earlier intervention by Jeremy’s treatment providers would have improved the outcome and held that there was a treatment injury for which cover was available.
[5] In my decision in this Court dated 1 July 2016 I overturned the District Court decision. In doing so, at para [64] of that decision I answered the following questions of law in the negative:
(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 different result?
[6] In filing his application for leave to appeal my decision, Jeremy set out the following suggested questions of law for consideration by the Court of Appeal:
(a) Was the High Court correct to find that a “failure to treat” cannot occur…
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- Case
- [2016] NZHC 1967
- Decision Date
CaseChat Overview and Summary
The High Court granted the application for leave to appeal, based on the presence of questions of law that cross the threshold of arguability, and the considerable personal and public justice interests involved. The Court of Appeal will now consider the four questions of law outlined in the application. No order as to costs was made.
This case highlights the complex issues that arise in interpreting the treatment injury provisions in the Accident Compensation Act 2001 and the importance of providing a governing authority for these types of cases. The questions of law raised in this appeal will provide valuable guidance for future cases involving treatment injury claims under the Act.
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Background
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