Atkinson v Accident Rehabilitation Compensation and Insurance Corporation
[2001] NZCA 335
•9 October 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 137/01 |
| BETWEEN | REID ATKINSON |
| Appellant |
| AND | ACCIDENT REHABILITATION COMPENSATION AND INSURANCE CORPORATION |
| Respondent |
| Hearing: | 9 October 2001 |
| Coram: | Richardson P Tipping J McGrath J |
| Appearances: | J M Miller for Appellant B A Corkill and M Ahern for Respondent |
| Judgment: | 9 October 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
This is an appeal on a question of law against the decision of Ellis J reported at [2001] NZAR 1, pursuant to leave granted by Ellis J under s98 of the Accident Rehabilitation and Compensation Insurance Act 1992 ("the 1992 Act").
The case stated
The case stated on appeal records:
1.On 29 April 1995 the Appellant underwent an operation at the age of 4 weeks at Wanganui Hospital.
2.The Appellant now suffers from brain damage.
3.The Appellant made a claim to the Respondent for medical misadventure under the Accident Rehabilitation and Compensation Insurance Act 1992.
4.The Respondent acknowledged that there had been sub‑optimal care at Wanganui Hospital in treating the Appellant but considered that the Appellant had not proved that there was a causal link between the sub‑optimal care and the brain damage.
5.The Appellant argued in the District Court and the High Court that the wording of the Accident Rehabilitation and Compensation Insurance Act 1992 did not require causation to be proved by the Appellant.
6.The District Court held that causation had to be proved by the Appellant.
7.The High Court upheld this decision.
8.The questions for the determination of the Court are:
a) Whether the effect of ss5 and 8 of the Accident Rehabilitation and Compensation Insurance Act 1992 is that proof of causation is not required for cover as medical misadventure.
b) Alternatively, if causation is required for a medical misadventure claim, on whom is the burden of proof?
The legislation
The case concerns the relevant provisions of ss5 and 8 of the 1992 Act. Although that Act has been repealed by the Accident Insurance Act 1998, s453 of the 1998 Act preserves appeals and reviews commenced under the 1992 Act. In terms of s8(2) of the 1992 Act, cover for personal injury extends to personal injury which
(a)Is caused by an accident to the person concerned; or
(b)Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or
(c)Is medical misadventure as defined in section 5 of this Act; or
(d)Is the consequence of treatment for personal injury covered by this Act.
And s5(1) and (2) provide:
5. Definition of "medical misadventure"
(1)For the purposes of this Act, -
"Medical error" means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results:
"Medical misadventure" means personal injury resulting from medical error or medical mishap:
"Medical mishap" means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given, if -
(a)The likelihood of the adverse consequence of the treatment occurring is rare; and
(b)The adverse consequence of the treatment is severe.
(2)For the purposes of the definition of the term "medical mishap", the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given.
The background
The case stated annexed the decision of the High Court and the earlier decision of the District Court. As well, in accordance with the relevant provisions of the legislation, the claim on behalf of the appellant was considered by the Medical Misadventure Advisory Committee and, following acceptance by the Corporation of the advice by the Committee that the claim for cover be declined, the Corporation's decision was reviewed by a Review Officer who concluded that there was no causal connection between the procedures carried out on the appellant and the subsequent problems he suffered.
The treatment of the appellant at Wanganui Hospital referred to in para 4 of the case stated was summarised in the report of Dr Athol Arthur, a senior consultant in paediatrics at Wellington Hospital, in this way:
4. There is no doubt that Reid suffered an untoward and potentially damaging event during induction of anaesthesia, due largely to inadequate pre‑operative aspiration from the stomach of the large amount of barium solution he had been given - as was also evidenced by the post‑operative X‑rays mentioned earlier. The lowest oxygen saturation recorded was 87%, apparently not of long duration, which does not suggest profound or sustained cerebral hypoxia. I did not find any comment re his blood pressure in the operative notes of Dr Vroon's report of 11/02/97.
On the evidence available, I do not believe one can confidently attribute all of Reid's problem to the anaesthetic incident. Equally, I do not think one can confidently exclude an adverse effect on his brain due to the hypoxia during anaesthetic induction. The incident occurred when he was only four weeks of age, an insufficient time to establish whether or not his development was normal initially and then became slower after the anaesthesia and surgery.
Dr Arthur added:
It cannot be denied that the hypoxia following the aspiration of stomach contents into his lungs may have contributed to his subsequent developmental delay (although it may not be the sole factor), and if this is accepted then it follows that he has suffered "medical misadventure", i.e. personal injury resulting from "medical error".
The Committee
The committee concluded:
The Committee is concerned that a number of the procedures carried out in this case appear to have been sub‑optimal in quality, but the difficulty it has is that there is presently no evidence before it demonstrating the existence of a causal link between the treatment Reid received in Wanganui Hospital and his neurodevelopmental delay. It follows that, even if error were accepted, there is still a need to demonstrate a nexus between such error and Reid's neurodevelopmental delay and of such link there is no evidence.
It recorded its findings in this way:
Medical Error: Section 5(1)
Ischaemic brain damage allegedly due to aspiration at anaesthetic induction is not considered to have been due to a failure by the registered health professional to observe a standard of care and skill that was reasonable in the circumstances.
Medical Mishap : Section 5(1)
Medical Mishap is not an issue in this case as a causal link has not been established.
Conclusion:
It is the consensus opinion of the Committee that Master Reid Atkinson does not have cover under Section 8(2)(c) of the Act, as medical misadventure has not occurred.
The Review Officer
On review of the decision declining cover the Review Officer rejected the arguments advanced for the appellant:
Mr Miller submitted that it only had to be a partial cause between the anaesthetic condition and Reid's condition and furthermore submitted that the evidential onus shifts if there is evidence that it could be a cause. I accept the evidence of Dr Arthur that the minor hypoxia could have caused Reid's neurological development. I do not accept, however, Mr Miller's contention that the evidential onus shifts. The onus stays with the applicant to prove, on the balance of probabilities, the causal link and thus whether there was personal injury by accident.
I find the question of partial cause becomes irrelevant because there is no medical evidence proving the causal link. Dr Arthur's evidence of not excluding the causal link is not sufficient.
The District Court decision
The appeal to the District Court was by way of rehearing but with evidence previously given being brought forward to the District Court in the usual way (s92), by providing transcripts of the material before the Committee and the Review Officer.
In the District Court, Mr Miller's principal submission was that the use of the words "resulting from" in s5 of the Act imposes a less stringent test than the use of the words "caused by" in s8(2)(a) and (b). He submitted that the use of the words "consequence of treatment" in s8(2)(d) carried with it the same connotation of a lesser standard. The Judge rejected the submission. He considered that the expressions were linking terms which could be used interchangeably and that the issue was whether or not the fact that there had been sub‑optimal care and hypoxia caused brain damage to the appellant.
On his assessment of the material before the District Court the Judge was satisfied that there was no causal link between the appellant's problems and the procedure carried out on 29 April 1995. He went on to hold that the ordinary civil standard of proof on the balance of probabilities applied; that the res ipsa loquitur doctrine did not apply; and that the claim of trespass to the person could not be sustained.
The High Court decision
On appeal Ellis J rejected the primary submission that a causal relationship between trauma and accident was not essential. He said:
[10] In my view the legislation proceeds on the basis that there must still be a causal relationship between accident and trauma. What is avoided is an enquiry into the cause or blame for the accident. Notwithstanding this basic proposition neglect still forms a prerequisite for liability for "medical error" as expressly stated in s5. In the present case the facts establish "sub optimal" treatment, the dispute is whether this medical error caused the alleged damage to Reid.
He went on to consider causation and burden of proof. He concluded that a causal connection is required by the use of the words "result" and "consequence" in s8 and, as he put it, essentially following the tenor of the District Court judgment, an applicant must show on the balance of probabilities that the condition was caused by the procedures, and that on the state of the evidence and as a matter of fact the appellant had failed to do so.
The Judge also discussed and rejected the reverse onus proposition advanced by Mr Miller:
An approach that would meet Mr Miller's position is that once it was established that the patient suffered from the condition after the procedure then it would be for the medical team to show the procedure did not cause the condition. That would be a reverse onus. In my view this amounts to the threshold being changed from showing the procedure caused the condition (or resulted in it) to showing only that it was possibly the cause, or it was possibly the result. I am in no doubt that if the legislation had intended such a reverse onus or to lower the threshold of proof it would have said so.
The appeal to this court
We have set out the reasoning and conclusions at the successive hearings where the appellant sought cover for personal injury in order to bring out that the essential issues have been canvassed at the various stages. On the argument of the appeal Mr Miller again submitted that no causal relationship is required or, alternatively, if a link is required, that the evidential onus should be on the respondent to show that there was no causal link.
Under the latter head Mr Miller also relied on common law developments in relation to proof of causation in medical misadventure cases where the focus may move to the risk of injury resulting from the wrongful act or omission and the plaintiff establishes that the defendant's conduct was at least capable of causing or aggravating the damage, and did in fact materially increase the risk of that damage. See Todd, The Law of Torts in New Zealand (3rd ed), 993‑995 and, for example, Chappel v Hart (1988) 195 CLR 232; Naxakisv Western General Hospital (1998) 197 CLR 269; and Snell v Farrell (1990) 72 DLR (4th) 289.
Mr Miller emphasised two points. The first was that in medical misadventure cases the facts bearing on causation and the care exercised by the defendant are especially within the knowledge of the defendant. The second was his submission that it would be supportive of the no fault accident compensation regime to adopt a broad approach to causation consistent with common law developments.
Discussion
For reasons we can express quite shortly, we are satisfied that the appeal on law must fail.
Section 8(2)(a) and (b) require that personal injury be "caused" by the event or process and para (d) requires that personal injury be the "consequence" of treatment for personal injury. Mr Miller noted that para (c) relating to medical misadventure contains no immediate expression pointing to causation. However, the definition of medical misadventure itself contains that element. The term is defined in s5(2) as meaning "personal injury resulting from medical error or medical mishap". It was logical and convenient to include it in the definition. It would then have been tautologous also to have included that or another expression descriptive of a causal link in s8(2)(c).
In some contexts there may well be different shades of meaning in expressions such as "cause", "result", "consequence". In other contexts they may be interchangeable. What is more important for present purposes is that each expresses the need for a link to be established between the act or omission in question and the injury. And in s5(1) "resulting from medical error" reflects the natural grammatical flow.
The medical error in the present case lay in giving the infant an excessive quantity of barium fluid and then failing to remove all the fluid before the operation, which led to regurgitation and to hypoxia. The difficulty for the appellant is that on the medical evidence before the District Court and the High Court, the hypoxia could not be linked causatively to the brain damage. While it may have contributed to the damage, it was not proved that it had contributed.
Clearly, "resulting from medical error" requires a claimant to prove that personal injury resulted from medical error.
The statute here and in other paragraphs of s8 focuses on outcomes, not on risk of injury or potential for injury. The risk, the potential, must be realised. To accept a lesser statutory test of increased risk or to adopt a reversed onus approach would be inconsistent with the statutory language and scheme. Mr Miller fairly accepted that to meet his submissions would require rewriting the definition of medical misadventure to read: "personal injury suffered in circumstances of increased risk resulting from medical error" or words to that effect.
Public policy considerations have led to developments of the common law in relation to causation. But the public policy of the 1992 Act must be drawn from its statutory provisions. Our concern must be the policy of the statute rather than the policy of the common law. The 1992 statute in this regard is outcomes focussed. Risk or potentiality of injury is not enough to attract cover. And that may well have been seen as part of the policy package under the statutory no fault accident compensation scheme.
For these reasons, which in substance reflect the reasoning of the District Court and the High Court, we are satisfied that the appeal must fail. The questions posed in para [8] of the case stated are accordingly answered "No" and "on the claimant" respectively. No questions of costs arise.
Solicitors
Nicole Carter, Wellington, for appellant
Solicitor, Accident Compensation Corporation, Wellington
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