Attorney-General v Lamb - [2017] NZCA 236

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/2016
[2017] NZCA 236

BETWEEN	THE ATTORNEY-GENERAL Appellant
AND	TANIA JOY LAMB Respondent

Hearing:	9 March 2017
Court:	Kós P, French and Williams JJ
Counsel:	S J Leslie for Appellant Respondent in person
Judgment:	7 June 2017 at 10.30am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe respondent’s claim is struck out.
CThe respondent must pay the appellant’s costs on an ordinary appeal, and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Does the filing of a statutory Accident Compensation appeal in the District Court stop time running against the plaintiff under the Limitation Act 1950 in later High Court proceedings against hospital authorities for alleged negligent non-treatment?
In 1977 Ms Lamb was injured in a car accident. She was 11 years old at the time. She was treated at Palmerston North Hospital. She says that the treatment was inadequate by reason of a failure by medical staff to arrange a CAT scan or refer her for neurological assessment. As a result, she says, she developed partial paralysis in her left side that could have been avoided had she been properly treated. Ms Lamb says she did not apprehend this treatment omission had occurred until October or November 2008 when she first saw medical records dating back to the accident in 1977.
Ms Lamb had accident compensation cover for personal injury by accident. She sought cover also for treatment injury in order, apparently, to hold the hospital further to account. It made no difference to the level of compensation given the cover already extended to her.
In February 2009 the Accident Compensation Corporation (ACC) declined cover for treatment injury. Its decision was upheld in a review decision in January 2010. Ms Lamb appealed to the District Court in February 2010. The appeal was heard in April 2011 and dismissed, inter alia on the basis the appeal was moot given she had cover anyway.[1]

These proceedings

[1]Lamb v Attorney-General [2011] NZACC 156.

In September 2014 Ms Lamb filed High Court proceedings against Mid Central District Health Board in respect of the care she had received at the Palmerston North Hospital in 1977. Her claim was for breach of contract, negligence and breach of fiduciary duty, and sought exemplary damages. In February 2015 she amended the proceeding to substitute the Attorney-General as defendant. That was pursuant to a direction made earlier that month, because the District Health Board did not exist in 1977.
Ms Lamb’s claim was struck out by Associate Judge Smith in August 2015.[2] The Judge said it had no prospect of success. First, he held that all claims sought damages in respect of bodily injury and that therefore s 4(7) of the Limitation Act applied. That required the cause of action to be brought within two years of the date on which the cause of action accrued. That was in October or November 2008 at the latest.[3] Secondly, the Judge said the statement of claim…

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.

Continue reading Attorney-General v Lamb

Details

AGLC: Attorney-General v Lamb [2017] NZCA 236
Case: [2017] NZCA 236
Decision Date: 7 June 2017 at 10.30am

CaseChat Overview and Summary

The case of Attorney-General v Lamb involved a claim by Tania Joy Lamb against the Attorney-General for negligence in the treatment she received at Palmerston North Hospital in 1977. The primary dispute centred on whether the filing of a statutory Accident Compensation appeal in the District Court could halt the running of time against the plaintiff under the Limitation Act 1950 for subsequent High Court proceedings against the hospital authorities. Ms Lamb alleged that her treatment was inadequate and that she did not become aware of this until 2008, when she first saw her medical records from 1977.

The legal issues before the Court of Appeal were whether the District Court appeal in 2010 constituted the same "action" as the High Court proceedings in 2014 for limitation purposes and, if not, whether the High Court judge was correct in granting leave for Ms Lamb to extend the time for filing her review application. The Court of Appeal considered that the identity of the parties, the cause of action, and the tribunal were distinct between the District Court appeal and the High Court proceedings, thus they were not the same "action" for limitation purposes. The Court of Appeal held that the High Court judge erred in granting leave to extend time for filing the review application, as the claim was statute-barred under the Limitation Act. Consequently, the appeal was allowed, Ms Lamb's claim was struck out, and she was ordered to pay the appellant's costs on an ordinary appeal, along with usual disbursements.

Orders