Austin v Accident Compensation Corporation
[2024] NZHC 1985
•18 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2918
[2024] NZHC 1985
UNDER the Accident Compensation Act 2001 IN THE MATTER OF
an application under Section 162
BETWEEN
LESLIE NORMAN AUSTIN
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 4 July 2024 Appearances:
G J Thwaite for Applicant
L M Hansen for Respondent
Judgment:
18 July 2024
JUDGMENT OF O’GORMAN J
[Application for special leave to appeal]
This judgment was delivered by me on 18 July 2024 at 3.30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
G J Thwaite, Auckland L M Hansen, Wellington
AUSTIN v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 1985 [18 July 2024]
[1] This is an application for special leave to appeal the judgment of Judge P R Spiller in Austin v Accident Compensation Corporation,1 which dismissed an appeal from the decision of a Reviewer of the Independent Complaint and Review Authority dated 22 December 2021.2 Leave to appeal from Judge Spiller’s decision was declined by Judge C J McGuire.3
[2] Starting in his early thirties, Mr Austin was prescribed the pharmaceutical product Roaccutane (isotretinoin) to treat severe acne. Later he developed osteophytes (bone growths) on his spine and elsewhere. By decisions dated 11 December 2015 and 4 April 2016, Mr Austin sought and obtained cover and related entitlements under the Accident Compensation Act 2001 (the Act) for bone growths caused by medical treatment (as a “treatment injury”). In 2016, Mr Austin brought proceedings in the High Court against Roche Products (New Zealand) Ltd (Roche), the New Zealand distributor of Roaccutane, seeking compensatory and punitive (exemplary) damages. Roche argued that the claim for compensatory damages was barred by s 317 of the Act because Mr Austin was entitled to Accident Compensation Corporation (ACC) cover. The Supreme Court ruled that disputes about cover must be determined using the procedures prescribed under pt 5 the Act.4
[3] This application for special leave forms a part of Mr Austin following the pt 5 procedure, seeking to revoke the cover granted to him by ACC in April 2016. If successful, the bar in s 317 of the Act would not preclude Mr Austin from pursuing his common law claim for compensatory damages against Roche.
[4]In his submissions, the applicant also raised an issue of confusion between:
(a)diffuse idiopathic skeletal hyperostosis (DISH), which by definition is idiopathic (i.e. of unknown cause); and
1 Austin v Accident Compensation Corporation [2023] NZACC 59 [District Court decision].
2 Austin v Accident Compensation Corporation, Review Decision dated 22 December 2021, Review Number 7335360, ICRA Ref ICR21-0704362 [Review decision].
3 Austin v Accident Compensation Corporation [2023] NZACC 180 [Leave decision].
4 Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30, [2021] NZSC 30 at [13], [20], [28], [32], and [36]−[37].
(b)retinoid hyperostosis, a DISH-like condition, which in this case was caused by use of Roaccutane (isotretinoin).
[5] Although the symptoms look almost identical, the causes are different. Mr Austin is claiming for retinoid hyperostosis, not DISH. In some instances, references in the evidence and decisions may confuse the two. However, I do not consider that this materially impacts on the substantive analysis or ultimate conclusions reached in the decisions of the Reviewer or the District Court.
Criteria for special leave
[6] Section 162(1) of the Act provides that a party may appeal a decision of the District Court to the High Court with leave on the grounds that it is wrong in law. Section 162(3) provides that if the District Court refuses to grant leave, then the High Court may grant special leave to appeal.
[7] The relevant principles were summarised in Chalmers v Accident Compensation Corporation:5
An appeal may be made to the High Court only on a question of law. The Court will not grant leave for appeal on the basis of an error of fact “dressed up” as an error of law. However, a mixed question of law and fact is matter of law. Additionally, the decision-maker’s treatment of facts may amount to an error of law where there is no evidence to support the decision, the evidence is inconsistent with and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the conclusion. Whether a statutory provision has been correctly interpreted and applied to the facts is a question of law.
The point of law must be capable of bona fide and serious argument. Leave is not to be granted as a matter of course. On second appeal the appeal court’s function is not to generally correct error but to clarify the law and determine whether it has been properly interpreted and applied by the lower Court. The primary focus is on whether the question of law is worthy of consideration. In Keyon v Accident Compensation Corporation this Court emphasised that the proposed appeal should be deserving of scarce judicial time, have an issue of principle at stake, and have a reasonable prospect of success. Where leave has been refused by the District Court there will normally have to be some extraordinary factor which has not been properly taken into account to justify leave.
5 Chalmers v Accident Compensation Corporation [2023] NZHC 925 at [38]–[40] (footnotes omitted).
The desirability of finality of litigation is a relevant consideration, as is the overall interest of justice.
Points on appeal
[8]The applicant alleges the following errors of law:
(a)The respondent has the burden of proof to establish cover under the Act. As part of misapplying the burden of proof, the Judge failed to consider the evidence of Dr Holtzhausen and to analyse the professional literature relied upon by the applicant.
(b)The Judge considered an irrelevant factor by having regard to the history of the applicant’s claim, thereby giving an appearance of bias or predetermination.
(c)ACC’s experts were not properly qualified, or with sufficient experience, in terms of s 25(1) of the Evidence Act 2006, to give evidence as experts in this case. Furthermore, their evidence should have been required orally and been subject to cross-examination, not received through written reports.
(d)The Court made errors in its analysis of the medical evidence and measuring that evidence against the legal criteria.
(e)A claim under the ACC regime is precluded by the definition of accident in s 25, given that the evidence showed a gradual process.
Decision declining leave to appeal
[9] Judge McGuire declined leave to appeal on the basis that none of the grounds raised a seriously arguable error of law.
Who has the burden of proof?
[10] The Judge considered this ground not to be arguable on the basis that there was no authority to support the proposition that ACC is the party claiming coverage and therefore has the obligation to prove coverage.6
[11] The Judge determined that the burden rested on the applicant to prove the decision of 4 April 2016 accepting cover for a treatment injury was wrong.7
Should professional literature be taken into account?
[12] The Judge referred to s 156(1) of the Act as permitting the Court to hear any evidence that it thinks fit. The Judge noted that the medical professionals relied on professional literature, so this point of law was not capable of bona fide and serious argument.8
Was the history of the applicant’s claim a proper factor for the judgment?
[13] The Judge found this point of law was not capable of bona fide and serious argument. The Judge stated that tracing the history of an applicant’s claim is not only a standard component of ACC appeal judgments in the District Court but is essential in the understanding of how the appeal had come about.9
[14] The Judge held that the reference to the background of the case was proper and there was no basis for a fair-minded, impartial, and properly informed observer to reasonably think that the Judge might have been unconsciously biased.10
Were the experts properly qualified?
[15] The Court rejected this ground as being capable of bona fide and serious argument and held that the Court and reviewers routinely receive evidence similar to
6 Leave decision, above n 3, at [74].
7 At [75].
8 At [76]–[81].
9 At [82].
10 At [86].
that of Dr Brown, and that such evidence is admitted to ensure that the appeal provisions of the Act work and function as Parliament intended.11
Did the Court properly assess the evidence?
[16] The Court assessed the allegation of failing to assess the evidence properly against the test in Edwards v Bairstow.12 Judge McGuire referred to the evidence relied on for the factual findings at [56]–[57] of Judge Spiller’s judgment, so this point of law was not capable of bona fide and serious argument.13
Did an accident occur?
[17] The Court rejected this point of law and accepted that there was no tenable argument to suggest that the applicant’s skeletal hyperostosis could be anything other than a treatment injury as defined in s 32 of the Act.14
Legislative regime
[18]The purpose of the Act is:15
… to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community (including economic, social, and personal costs), …
[19] A prerequisite to obtaining cover under the Act is that the claimant must have suffered a personal injury as defined in the Act.16
[20]“Personal injury” is defined in broad terms in s 26(1) of the Act:
(1) Personal injury means—
(a)the death of a person; or
11 At [89].
12 Edwards v Bairstow [1955] 3 All ER 48 57.
13 Leave decision, above n 3, at [91]–[92].
14 At [93].
15 Accident Compensation Act 2001, s 3.
16 Section 20(1).
(b)physical injuries suffered by a person, including, for example, a strain or a sprain; or
(c)mental injury suffered by a person because of physical injuries suffered by the person; or
(d)mental injury suffered by a person in the circumstances described in section 21; or
(da) work-related mental injury that is suffered by a person in the circumstances described in section 21B; or
(e)damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.
[21] Section 26(2) expressly excludes from the definition “personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h)”.
Section 20(2) identifies 10 categories of personal injury, including:
(b) personal injury that is treatment injury suffered by the person:
…
(f)personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person:
[23] Accordingly, not all injuries caused by gradual process are excluded necessarily; the focus is on causation:17
[79] The exclusion is not for natural processes per se. It is for gradual processes that are not of a certain kind. The focus is on the cause of the gradual process. Relevant for present purposes is that personal injury caused wholly or substantially by a gradual process is covered if the personal injury is caused by medical misadventure. …
[24] As referred to in the above quote, and by way of background, the Accident Rehabilitation and Compensation Insurance Act 1992 provided cover for “medical misadventure” which was defined by reference to personal injury resulting from medical error or medical mishap.18 The definition of “medical error” equated to
17 Accident Compensation Corporation v D [2007] NZAR 679 (HC) at [79], cited with approval in
Accident Compensation Corporation v AZ [2023] NZCA 617, [2023] 3 NZLR 445 at [25].
18 Accident Compensation Corporation v AZ, above n 17, at [45].
negligence by a registered health professional. “Medical mishap” was defined by reference to the rarity and the severity of the personal injury in issue.19
[25] In 2005, Parliament revisited the medical misadventure threshold for cover and replaced it with cover for “treatment injury”. The intention of this change has been summarised as follows:20
… [T]he first aim of the reform was to remove the need for claimants to establish an individual health professional’s “fault” for the purposes of cover. A second and related reason for reform was to improve the timeliness of determining claims arising out of treatment. The third focus was cover for medical mishap, for which the “rarity” and “severity” criteria were confusing and considered too restrictive and arbitrary, resulting in claimants unfairly missing out on cover.
[26] In other words, this history shows a “deliberate intention by the legislature to expand the circumstances which would attract cover under the Act for untoward
medical events”.21 This intention is relevant for interpretation purposes.22
“Treatment injury” is defined in s 32(1) of the Act:
Treatment injury means personal injury that is—
(a)suffered by a person—
(i)seeking treatment from 1 or more registered health professionals; or
(ii)receiving treatment from, or at the direction of, 1 or more registered health professionals; or
… and
(b)caused by treatment; and
(c)not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—
(i)the person’s underlying health condition at the time of the treatment; and
19 At [45], referencing Accident Rehabilitation and Compensation Insurance Act 1992, s 5(1).
20 Joanna Manning “Treatment Injury” in Peter Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) 997 at [31.5.1], quoted in Accident Compensation Corporation v AZ, above n 17, at [46].
21 Accident Compensation Corporation v AZ, above n 17, at [47] and [91].
22 At [21] and [47].
(ii)the clinical knowledge at the time of the treatment.
(2) Treatment injury does not include the following kinds of personal
injury:
(a)personal injury that is wholly or substantially caused by a person’s
underlying health condition:
…
(3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
(4) Treatment injury includes personal injury suffered by a person as a result of treatment given as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6).
[28] To establish causation between the relevant treatment and the personal injury, s 32(1)(b) uses the simple language of “caused by”. In situations of personal injuries that have more than one cause, a “material cause” test applies.23
[29] The meaning of “ordinary consequence” was considered by the Court of Appeal in Accident Compensation Corp v Ng:24
In our view, it should be interpreted as meaning an outcome that is outside of the normal range of outcomes, something out of the ordinary which occasions a measure of surprise. That is an interpretation that we consider, as did the Court in Childs v Hillock, best captures Parliament’s intent in the context of a scheme which is underpinned by the concept of “personal injury by accident” and which does not provide universal compensation for sickness or ill-health. So, for example, side effects of chemotherapy of a nature and severity that are encountered reasonably often and occasion no surprise are ordinary consequences of that chemotherapy even if (as will often be the case) such side effects are not encountered in more than 50 per cent of cases.
Whether an adverse consequence is inside or outside the normal range of consequences of the medical treatment given to a particular claimant is ultimately a matter of judgment for the decision maker. It is to be exercised on a case-specific basis taking into account all the circumstances of the treatment and the particular claimant. Thus, relevant circumstances will include not only the nature of the harm suffered but also its duration and severity as well as any other circumstances pertaining to the patient which may have rendered them more or less susceptible to the adverse consequence. The decision may be informed by medical studies including relevant statistical
23 Roper v Taylor [2023] NZSC 49, [2023] 1 NZLR 1 at [62], citing W v Accident Compensation Corporation [2018] NZHC 937, [2018] 3 NZLR 859 at [44]–[68], applied in Accident Compensation Corporation v AZ, above n 17, at [75].
24 Accident Compensation Corporation v Ng [2020] NZCA 274, [2020] 2 NZLR 683 at [68]–[69].
analysis (subject to the reservations detailed below) as well as the clinical experience of the treating physician(s) and other specialists.
Analysis
[30] This dispute commenced as an application for review lodged on 19 April 2021. Under s 145(1)(a) of the Act, a reviewer must put aside ACC’s decision and look at the matter afresh on the basis of the information provided at the review.
[31] There is a statutory responsibility on ACC to reasonably investigate claims for cover and entitlements, and to facilitate access to those entitlements.25 Subject to those obligations, it has often been held that the onus is on the claimant to show that he or she meets the criteria within the Act to receive cover.26 The applicant has not referred to any authority establishing that the onus falls on ACC if the claimant wishes to disavow cover.27
[32] In any event, I accept the respondent’s position that the burden of proof is not particularly relevant, and is certainly not determinative in this case:28
With respect, I do not see the issue of which party carries the onus, in the context of entitlements under the Accident Insurance Act as being anything other than an arid and sterile exercise. In general terms under Part 1 of the statute, if an accident, as defined, causes a personal injury as defined (s 29) then there is cover. The causal nexus between accident and injury must be established as a factual matter and on the balance of probabilities. If the available information (or evidence) establishes that nexus on the balance of
25 Accident Compensation Act, ss 50(1), 56(2), 62 and 67.
26 See for example Gallagher-Scott v Accident Compensation Corporation [2018] NZACC 130 at [37]; and Gazzard v Accident Compensation Corporation HC Wellington CIV-2005-485-002388, 22 May 2006 at [35]. However, the Court of Appeal in C v Accident Compensation Corporation [2013] NZCA 590, [2014] 2 NZLR 373 at [49] accepted that a Court may take into account the absence of counter evidence which ought to have been in ACC’s power to produce.
27 Ellwood v Accident Compensation Corporation [2007] NZAR 205 at [65] suggests to the contrary, that the ACC must have a sufficient basis before terminating benefits, otherwise it cannot be “satisfied that there is no right to entitlements”. In Gray v Accident Compensation Corporation [2003] NZAR 289 at [14] Ellen France J held that the obligation was on ACC to comply with the statutory requirements before removing entitlements. As noted in Gazzard v Accident Compensation Corporation, above n 26, at [35], the decision in Gray was without the benefit of full argument on the onus question.
28 Wakenshaw v Accident Compensation Corporation [2003] NZAR 590 at [17], Priestley J quoting from his own earlier judgment Jackson v ACC HC Auckland AP 404-96-01, 14 February 2002 at [38]–[39], and also referencing Fowlie v ARCIC HC Wellington AP 50/00, 4 October 2000; and McCafferty v ACC HC Auckland CP 248/01, 11 April 2002. At [23]–[24] Priestley J also said it would be a “rare case” where a decision under the Act can be determined only by the onus. He noted the theoretical possibility of an “equipoise”, in which cover may have to be declined. Priestley reiterated however “the central requirement” of a causal nexus.
probabilities then an applicant’s entitlement to cover is beyond dispute. If the nexus cannot be established to that degree then there is no entitlement.
I see no material difference between this elementary focus on whether the information or evidence establishes the nexus on the balance of probabilities at either the first level, where claimants seek cover from the respondent, at the second review hearing stage, or on the third rung of an appeal to the District Court. It is not the elaborate procedural game of who carries the onus which is determinative but rather whether the information and evidence justify a conclusion that a nexus has or has not, as the case may be, been established. Obviously a claimant will not gain cover if the information/evidence falls short of establishing a nexus on the balance of probabilities. This obvious proposition need not be obscured by recasting it as an onus.
[33] The Reviewer and the District Court assessed the merits of the application and were satisfied that there was cover under the Act for Mr Austin’s bone growth problems caused by medical treatment. These constituted treatment injuries, because those problems were not a necessary part or ordinary consequence of the treatment that Mr Austin had sought for acne problems. The burden of proof would only be relevant if the merits were balanced. The Reviewer and the District Court did not assess the merits as being finely balanced; nor do I.
[34] Mr Thwaite, counsel for Mr Austin, produced 18 medical research documents dating from 1983 to 2019 about the risk of the undesirable side effect of abnormal bone growths, particularly for treatment at higher doses and for longer durations. Mr Thwaite alleges that it is incumbent on the Court to assess this original material, rather than rely on expert opinion evidence from medical practitioners.
[35] For determining claims under the Act, it is well-established that scientific publications are generally considered only to the extent they are provided through a medical or scientific expert as information supporting the written or oral opinion of that expert or illustrating a difficulty that the expert is addressing in his or her evidence.29 There is some limited scope to admit published documents directly under s 129 of the Evidence Act, but only if the Judge considers it helpful and from a reliable source.
29 Green v Accident Compensation Corporation [2012] NZACC 272 at [16]–[18], with leave to appeal declined in Green v Accident Compensation Corporation [2014] NZACC 67 at [7], [50]−[55]; Hill v Accident Compensation Corporation [2020] NZACC 10 at [35]; Karmarkar v Accident Compensation Corporation [2018] NZACC 41 at [20]–[23], with special leave to appeal declined in Karmarkar v Accident Compensation Corporation [2019] NZHC 294 at [27]; and YZ v Accident Compensation Corporation [2021] NZHC 344 at [10].
[36] In any event, in Mr Austin’s decisions by the Reviewer and the District Court, it has been accepted as proven that the treatment in this case was causatively linked to Mr Austin’s skeletal hyperostosis.30 For the same reason, I find there is no merit in the appeal point about whether the court properly assessed the need for x-ray evidence. The critical question was not one of causation, but rather whether these problems should be seen as an “ordinary consequence” of treatment.
[37] For that test, Mr Austin seeks to narrow the type of treatment in s 32 to “prolonged treatment” (outside the bounds of what is recommended), in which case he says the literature supports a conclusion that an ordinary consequence might be bone growth problems.31 That is not how s 32 of the Act operates. The treatment in question in this case is the treatment of acne problems with Roaccutane. The question is whether the injury suffered is a necessary part or ordinary consequence of that. To redefine treatment within s 32 more narrowly as inappropriate or prolonged treatment (and then exclude the consequences of that) would artificially exclude cover — the exact opposite of s 32’s intended application:32
Taken as a whole the provisions indicate a legislative intent to limit cover for persons who suffer injury while undergoing treatment, rather than providing cover for all those who suffer. The injury said to be a treatment injury must be the consequence of a departure from appropriate treatment choices and treatment actions. The drafting could have simply provided for cover for all injury suffered while a person undergoes treatment. But that course was not taken. Rather, boundaries were set out that have the effect of limiting the availability of cover for injury during treatment. A failure in the sense of omitting to take a step required by an objective standard is necessary.
…
As is always the case, it is necessary to focus on the words Parliament has actually used. It will be apparent from our reasoning that we have discerned a legislative policy that, while not requiring a finding of negligence, still operates on the basis that a treatment injury will only have occurred where there has been some departure from a standard and that departure has caused a personal injury.
30 Review decision, above n 2, at [112]; District Court decision, above n 1, at [56]; and Leave decision, above n 3, at [92].
31 See [40](a) and [40](b) below.
32 Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102 at [62] and [65]. See also [26] above. This is a point made in the Review Decision, above n 2, at [131] and [133].
[38] Furthermore, the applicant’s submissions under this ground fall within the category of alleging errors of fact that are “dressed up” as errors of law. The decision maker’s treatment of facts may only amount to an error of law where there is no evidence to support the decision, or the evidence is inconsistent with or contradicts the decision, or the true and only reasonable conclusion on the evidence contradicts the conclusion. That high threshold is not met on the facts of this case.
[39] I accept Mr Austin’s submission that the literature to which he referred discussed the risk of the undesirable side effect of bone growths from using Roaccutane, particularly for treatment at higher doses and for longer durations.
[40] However, that evidence is not fundamentally inconsistent with the expert evidence that, despite such risks, bone growths were not expected to be an ordinary consequence of the treatment of acne problems with Roaccutane. Rather, it was the prolonged treatment that was problematic and constituted a departure from appropriate treatment choices:
(a)Dr Holtzhausen (a specialist in musculoskeletal medicine) gave evidence that the recommended dose for short term isotretinoin use in acne in the 1990s following Yoder, Pittley and McGuire papers was less than 0.5 mg/kg/day to be given for no longer than a six month period to avoid developing DISH-like spinal lesions.33 Dr Holtzhausen initially considered Mr Austin’s dosages to be high but, following further research, she considered that the dosages used were always quite low. Her expert view was that “it seems that the prolonged period of usage has been the determining factor with Mr Austin’s outcomes”.34
(b)Mr Austin gave evidence that he used Roaccutane during 14 of the 23 years between 1982 and 2005.35 He emphasised Dr Holtzhausen’s view that it was the prolonged nature of his retinoid therapy that
33 Review Decision, above n 2, at [35].
34 District Court decision, above n 1, at [39].
35 At [41].
ultimately led to all his skeletal problems — such outcomes are not rare for adults on prolonged retinoid therapy.36
(c)Professor Burgess (a clinical pharmacologist) referred to the first reports of hyperostosis by Richard Pittsley and Frank Yoder in 1983, and described those findings as well as other studies.37 In terms of whether the risk of hyperostosis as a side effect of treatment would have reasonably been expected to be known in the 1980s and 1990s by prescribers, he gave evidence that the earliest this would have been considered would have been in the 1990s, but a publication in 2014 pointed out that it is often a diagnosis that is overlooked.38 He observed that all registration bodies have definite rules on how the drug “should be used, namely in short courses with great care to prevent reproduction as the risk of teratogenicity is very high”.39 In a second report dated 24 September 2015, he gave evidence that Mr Austin’s skeletal hyperostosis would not be an expected outcome, as it is a rare complication of the use of isotretinoin.40
(d)Mr Taine (an orthopaedic surgeon) gave evidence that the reports of hyperostosis in association with the use of Roaccutane is not based on large numbers of patients. In younger adults, hyperostosis would be very unusual. In his view, the absence of firm recommendations regarding screening in adult patients being treated with this medication suggested a low incidence of symptomatic disease. This suggested that it was not an expected clinical problem.41
(e)Dr Brown (a medical adviser) reviewed the literature and expert pharmacology opinion and concluded that the adverse outcome of
36 At [42] (emphasis added).
37 Review Decision, above n 2, at [19].
38 At [21].
39 At [22] (emphasis added).
40 At [43].
41 At [50]; and District Court decision, above n 1, at [22].
skeletal hyperostosis following treatment with isotretinoin is a rare event.42
Both the literature, and expert pharmacology opinion, support that the adverse outcome of skeletal hyperostosis is a rare event, which likely represents an individual reaction e.g. one that cannot be identified in advance.
…
Taking these circumstances into account, the adverse outcome in the case of Mr Austin is surprising, and in my opinion is not in an ordinary outcome of treatment in this case.
[41] Mr Thwaite questioned the expertise of all ACC’s experts, but particularly challenged Dr Brown, contending that he was not an orthopaedic specialist or clinical pharmacologist and therefore he was not qualified to provide an expert opinion on causation. Rather, he says the Court should review the medical literature directly itself to form its own medical views. In this case, I consider that all the medical experts, including Dr Brown, did have suitable and helpful expertise as medical practitioners. In Dr Brown’s case, his role included assessing the state of knowledge in literature reasonably available to medical practitioners at the time treatment was provided. In terms of s 25 of the Evidence Act, I consider it is substantially helpful for the Court to receive evidence of this nature through experts who are medically qualified, giving them suitable specialist expertise to understand the relevance, reliability, and availability of professional literature at the time the treatment decisions were made. There was otherwise no attempt by the applicant to substantiate the reliability and availability of the documents in the applicant’s literature bundle.43
[42] In ordinary proceedings, expert evidence is usually given in person and the witness made available through cross-examination in a hearing. That is not the practice adopted in most cases for proceedings under the Act. Section 140 provides for a review hearing to be conducted “in any manner [the reviewer] thinks fit”, subject to the obligations in s 140(a)–(e). An investigative approach conducted in an informal manner is expressly permitted.44 The reviewer may admit any relevant evidence at the hearing from any person who is entitled to be present and be heard at it, whether or
42 District Court decision, above n 1, at [40].
43 Reliability being a requirement for s 129 of the Evidence Act 2006.
44 Accident Compensation Act, s 140(e).
not the evidence would be admissible in a court.45 On appeal, s 156(1) provides that the Court may hear any evidence that it thinks fit, whether or not the evidence is admissible in a court of law. As noted by Judge McGuire,46 ACC reviews and appeals routinely involve the receipt of evidence in the form of reports and medical notes, including from first responders, practice nurses, physiotherapists and general practitioners who do not necessarily have specialist expertise in the specific injury. This level of informality was expressly intended by Parliament, so long as principles of natural justice are complied with. No error of law arises from this practice.
[43] Coming back to the points on appeal, I reject the allegation that the Judge failed to consider the evidence of Dr Holtzhausen and the professional literature. Judge McGuire’s decision referred to the judgment of Judge Spiller,47 and concluded there was no error of law applying the test in Edwards v Bairstow. Judge Spiller’s judgment contained a detailed summary of Dr Holtzhausen’s evidence.48 After quoting Dr Brown’s disagreement with Dr Holtzhausen’s conclusion about the “expected and ordinary consequence”,49 Judge Spiller preferred the evidence of Professor Burgess, Mr Taine and Dr Brown.50 On my assessment, there is no necessary inconsistency anyway, when it is understood that Dr Holtzhausen’s evidence was that prolonged treatment (a departure from appropriate treatment choices) may cause an expected and ordinary consequence of abnormal bone growth problems.51
[44] Like Judge McGuire, I conclude there is no arguable error of law in the factual analysis. The conclusion reached by the Reviewer and the two District Court Judges was supported by evidence.
[45] I accept the respondent’s submission that there was no error in referring to the procedural history of the applicant’s claim. This is a normal practice in decision-making on ACC claims, reflected in judgments at all levels. No fair-minded, impartial, and properly informed observer would reasonably think that it implies any
45 Section 141(4).
46 Leave decision, above n 3, at [89].
47 At [91]–[92].
48 District Court decision, above n 1, at [13]–[15] and [39].
49 At [40].
50 At [57]. The evidence of the experts addressed the medical literature.
51 See [40](a) and [40](b) above.
unconscious bias. The question remains one of statutory interpretation and expert evidence about the necessary and ordinary consequences of treatment of a particular type. That is not impacted by the procedural history. Reference to the history was nevertheless appropriate, to understand that context and the relevance of what was addressed by the Courts in the Austin v Roche Products (New Zealand) Ltd decisions.52
[46] For the reasons referred to in [22] and [23], the definition of accident in s 25 and the exclusion in s 25(1)(a) of a “gradual process” has no relevance for treatment injuries. A treatment injury may expressly include a personal injury caused by a gradual process.53 Accordingly, this ground of appeal fails.
[47] The applicant raised a further point as an addendum to submissions, namely that the intended civil claim would include an allegation that Roche breached a duty to warn, which is related to a question of whether Mr Austin gave informed consent in terms of s 33(1)(e) of the Act,54 given that he was not alerted to the risk of retinoid hyperostosis and would not have agreed to the treatment if he had been given those warnings. Mr Thwaite raised the question whether causation could be proven for the purposes of ACC cover, if the prior factor of a breach of a duty to warn was causative. Even if this had been a pleaded point on appeal, I do not consider that it is reasonably arguable, because a “material cause” is sufficient if there are multiple causes.55
[48] The applicant referred to the financial implications of cover, and the trade-offs between the fiscal burden of the ACC regime and private accountability of pharmaceutical companies. I do not consider those matters relevant. Those are policy decisions for Parliament. This Court’s role is simply to oversee the correct application of the legislation, properly interpreted in accordance with the principles set out above.
[49] For all of the above reasons, I do not consider that any of the identified points on appeal are capable of bona fide and serious argument. The applicant has failed to establish any question of law worthy of consideration, and I find that the proposed
52 See [2] above.
53 Accident Compensation Act, s 20(2)(f).
54 This provides a separate basis for finding a “treatment injury”.
55 See [28] above.
appeal does not have a reasonable prospect of success. Accordingly, I decline the application for special leave to appeal.
Result
[50]The application for special leave to appeal is declined.
[51] If costs are sought and cannot be agreed, then the respondent may file a memorandum within 15 working days, and the applicant has a further 15 working days to file his memorandum in reply.
O’Gorman J
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