Ambros v Accident Compensation Corporation HC Auckland CIV-2004-404-3261

[2005] NZHC 361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2004-404-3261

BETWEEN  MIKAEL MATTI AMBROS Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

ANDWAITEMATA DISTRICT HEALTH BOARD

First Intervenor

ANDDR HAMISH HART Second Intervenor

Hearing:         27 April 2005 and 5 May 2005

Appearances: Mikael Ambros (Appellant) in person Dane Tuiqereqere for Respondent Katherine Anderson for First Intervenor Catherine Garvey for Second Intervenor

Judgment:      3 June 2005

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

11 a.m. on 3 June 2005

Solicitors:

M J Mercier, Legal Services, ACC, PO Box 242, Wellington

Chapman Tripp, PO Box 2206, Auckland Fisher Lamberg, P O Box 9074, Auckland Counsel:

D Tuiqereqere, PO Box 7200, Auckland
A H Waalkens QC/C L Garvey, PO Box 4338, Auckland

B D Gray, PO Box 4338, Auckland

Copy to:

M M Ambros, Appellant in person

AMBROS V ACCIDENT COMPENSATION CORPORATION HC AK CIV-2004-404-3261 [3 June 2005]

Introduction

[1]      On 21 March 2005 Heath J and I allowed an appeal by Mr Mikael Ambros, in accordance with special leave given earlier, against a decision of the District Court at Auckland on 5 June 2002 in turn dismissing Mr Ambros’ appeal from a decision of the Accident Compensation Corporation (the ACC) declining his application for compensation under the Accident Insurance Act 1998 for the death of his late wife at North Shore Hospital in 2000.

[2]      In summary, we held that the District Court Judge applied the incorrect legal test for the purpose of determining whether or not there had been medical error (s 36), and that his decision was wrong as a result.   We then determined on the primary  evidence  available  that  there  had  been  medical  error  on  the  part  of Dr Hamish Hart at North Shore Hospital which caused Mrs Ambros’ death (s 39).

[3]      Mr Ambros had represented himself in the District Court and at all earlier stages.   Mr Bruce Gray was appointed as Amicus to assist the Court.   We also granted leave to the Waitemata District Health Board (the WDHB) and to Dr Hamish Hart to intervene.  Both were represented by counsel on the appeal.

[4]      On 15 April 2005 Dr Hart filed an application for leave to appeal against our judgment.  The application was, with respect, unsatisfactory and on 27 April he filed an  amended  application.    In  the  meantime,  on  18 April,  ACC  filed  a  separate application for leave to appeal.  Ms Katherine Anderson for the Waitemata District Health Board has filed a synopsis of submissions in support.

[5]      I have convened two hearings for the purposes of attempting to define a question or questions of law for submission to the Court of Appeal.  I acknowledge Mr Ambros’  complaint  that  I  have  accorded  Ms Catherine  Garvey,  Dr Hart’s counsel, three opportunities to satisfy the statutory requirements.   I understand his frustration,  but  I  recognise  that  a  question  on  causation  identified  by  Mr Dane Tuiqereqere, counsel for ACC, arising from our judgment is appropriate for determination by the Court of Appeal, and I was anxious to ensure that the Court is

not burdened by a multiplicity of questions, many of a factual nature, when the appeal is heard.

General Principles

[6]      S166 Accident Insurance Act 1998 (then in force but repealed as from 1 April

2002) materially provided:

(1)       A party to an appeal before the High Court under section 165 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only.

(2)      If the High Court refuses to grant leave to appeal to the Court of

Appeal, the Court of Appeal may grant special leave to appeal… [My emphasis]

[7]      While all counsel addressed me on the existence or otherwise of a question of law, none of them took the threshold step of formulating a case stated for consideration.   The procedure is quite different from the more orthodox right to appeal on a question of law of general or public significance.  Ms Garvey attempted to identify a number of questions of law which on analysis amounted to a comprehensive challenge to every one of our factual findings.  The statute does not allow for that approach.  The right is not one of general appeal but is confined to a question of law arising out of a self-contained statement of essential facts.  A case should only be stated where the point of law which arises is, first, clearly necessary for the decision and, second, likely to be decisive one way or the other (Police v O’Neill [1991] 3 NZLR 593, Tipping J).

[8]      Ms Garvey  relied  on  the  decision  of  Ellis J  in  Atkinson  v  Accident Compensation  Commission  [2001] NZAR 1. However, that judgment was the subject of an unsuccessful appeal. Mr Tuiqereqere referred to the judgment on appeal (Atkinson   v   Accident   Rehabilitation   Compensation   and   Insurance Corporation [2002] 1 NZLR 374). In that case the appellant failed to prove on the medical evidence that his brain damage was “caused by” his medical treatment in

terms  of  s 8  Accident  Rehabilitation  and  Compensation  Insurance  Act  1992 (repealed by the 1998 Act).

[9]      What is directly relevant to this application is that s 98 of the 1992 Act, providing a right of appeal to the Court of Appeal, was in identical form to s 166 of the 1998 Act.  Richardson P’s judgment in Atkinson recites (para 2) the entire case stated concluding with the question for determination on appeal.   As I have said, none of the counsel have attempted to comply with this requirement.   I would be justified in dismissing the applications for this reason.

Case Stated

[10]     However, I repeat my satisfaction that our determination of the causation issue raises an argument which should properly be the subject of appeal.  I am thus stating a case for submission to the Court of Appeal as follows:

(1)On  14  July  2000  the  late  Mrs  Ambros,  then  aged  36  years,  was admitted to North Shore Hospital, having awoken in the early hours with chest pain.  She had suffered a significant myocardial infarction or cardiac arrest immediately beforehand.   The underlying cause of her coronary disease was rare;

(2)The  hospital’s  Clinical  Director  of  Medical   Services,   Dr Hart, assessed  Mrs Ambros’  condition  but  did  not  then  identify  her infarction.   He concluded that she was an “intermediate” risk and admitted her to the hospital’s Coronary Care Unit;

(3)      On 15 July 2000 Mrs Ambros was moved to a general unit in North

Shore Hospital at Dr Hart’s direction;

(4)On 18 July 2000 an exercise test advised that Mrs Ambros’ condition was strongly suggestive of “a very important coronary artery disease” and an angiogram was arranged for her at Greenlane Hospital on

20 July 2000;

(5)At about 2 a.m. on 19 July Mrs Ambros awoke complaining of breast and  chest  pain.    At  3.45 a.m.  the  following  day,  before  she  was admitted for an angiogram, Mrs Ambros was found in the ward not breathing   and   without   a   pulse.      Shortly   afterwards   she   was pronounced  dead.    An  autopsy  disclosed  that  she  had  suffered  a further heart attack within 24 hours of her death;

(6)We found that Dr Hart failed in a number of respects to observe the standard of care and skill reasonably to be expected of him in the circumstances  of  and  following  Mrs Ambros’  admission  to  North Shore Hospital on 14 July 2000.   He omitted to take a number of critical steps in the face of evidence that Mrs Ambros had suffered a significant myocardial infarction immediately before admission.   He failed  to  take  the  steps  necessary  to  reach  an  early  and  correct diagnosis of Mrs Ambros’ condition and his treatment of her was defective (see paras 95-99 judgment);

(7)      We concluded that (para 100):

… for the purposes of the accident compensation legislation, the failure of Dr Hart to act in the manner described is to be regarded as causative of Mrs Ambros’ death.   His failures to act removed the opportunity for Mrs Ambros to be monitored more carefully.  Had she been monitored more carefully there was a possibility that death could have been averted.  There is no evidence to suggest that death was inevitable.  Nor is there any evidence to suggest the intervention of a supervening cause of death.

(8)The question for determination by the Court of Appeal is whether or not proof of a medical error involving a “failure” constituting a “medical error” within the meaning of s 38(2) of the 1998 Act, where injury or death resulted in close proximity, will be sufficient to establish the cause of death or injury in terms of s 39(2)(b) in the absence of evidence (including evidence that the injury or death was inevitable  or  that  some  intervening  cause  produced  the  injury  or death) to the contrary (paras 36-43, 46).

Appeal in the terms set out above.

[12]     I  should  add  that  we  granted  leave  both  to  Dr Hart  and  the  WDHB  to intervene because of their direct interest in issues arising on the appeal.  As noted, Dr Hart filed a separate application for leave and the WDHB submitted a synopsis in support.  However, now that the terms of the case have been settled, and the discrete question of law for the Court of Appeal’s determination has been identified, I am satisfied that neither of those parties has retained an interest in the appeal sufficient to justify their continued appearances.  The question is one for the ACC to argue, given its interest in resisting a claim for cover as medical misadventure.

[13]     In particular, the WDHB was granted intervenor status as a result of a point raised before Heath J when granting Mr Ambros special leave to appeal.  Dr Hart’s evidence in the District Court suggested that his decision to transfer Mrs Ambros from the Coronary Care Unit to a general ward on 15 July was caused by resource constraints, as was his decision not to obtain an urgent angiogram from Greenlane Hospital.  We were satisfied that this evidence was diversionary, and our judgment did not place any weight upon it or attribute any responsibility whatsoever to the WDHB for Mrs Ambros’ death.

[14]     Ms Anderson has emphasised the WDHB’s general interest in a successful appeal against our judgment.  However, that is not enough to justify its continued participation and it is inappropriate to grant leave to parties, such as Dr Hart and the WDHB, to advance an argument separately or independently from the ACC on the same question.  Additionally, there is no prospect that the Court of Appeal’s decision on the discrete point of law submitted for its decision might adversely affect the WDHB’s interests.

[15]     As noted, Mr Bruce Gray appeared as Amicus Curiae on the hearing of the substantive appeal in this Court.  He provided invaluable assistance to us given that Mr Ambros was unrepresented.  I confirm his continued engagement in that role in the  High  Court  and  I  trust  that  the  Court  of  Appeal  will  give  favourable consideration to his appointment for the same purpose.

Rhys Harrison J