Adlam v Accident Compensation Corporation - [2016] NZHC 1967

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 Respondent

Judgment:

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

1 ACC v Adlam [2016] NZHC 2487].

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…

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 1967
Decision Date: 23 August 2016

CaseChat Overview and Summary

Jeremy Cameron Adlam, a 16-year-old boy with severe cerebral palsy, is the applicant in this case. He is seeking leave to appeal against the High Court's decision dated 1 July 2016, which overturned the District Court's decision dated 10 August 2015. The Accident Compensation Corporation (ACC) is the respondent and is opposed to the appeal. The key legal issue revolves around the interpretation of the treatment injury provisions in the Accident Compensation Act 2001 and whether the High Court was correct in its determination of the applicant's entitlement to cover under the Act. The appeal questions whether a "failure to treat" can occur in the absence of observable indications for a different treatment course, if a treatment injury can be established when a different course of treatment could have yielded a better result with hindsight, if responsibility for either a failure to provide treatment or the provision of treatment must be established for a claimant to receive cover, and whether determining whether a particular treatment is clinically indicated requires consideration of the alternative options available to the health professional at the time, taking into account the state of knowledge and any contraindications.

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.

Orders