AZ v Accident Compensation Corporation
[2021] NZHC 1787
•15 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-975
[2021] NZHC 1787
UNDER The Accident Compensation Act IN THE MATTER
Of an Appeal pursuant to s 162 of the Act
BETWEEN
AZ
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 13 July 2021 Appearances:
P G Schmidt for the Appellant A Butler for the Respondent
A H Waalkens QC for the Medical Protection Society
Judgment:
15 July 2021
JUDGMENT OF POWELL J
[Applications by Medical Protection Society for leave to intervene in appeal and to file evidence]
This judgment was delivered by me on 15 July 2021 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel:A Butler, Wellington P Schmidt, Auckland
A H Waalkens QC, Auckland
Solicitors: ACC ( M Mercier – Principal Solicitor)
Schmidt & Peart Law, Auckland Wotton + Kearney, Auckland
AZ v ACCIDENT COMPENSATION CORPORATION [2021] NZHC 1787 [15 July 2021]
[1] The appellant has been granted leave to appeal a decision of Judge A A Sinclair in the District Court at Auckland.1 The appellant had sought cover from the Accident Compensation Corporation (“the Corporation”) for a treatment injury, but this was declined.2 Judge Sinclair in turn dismissed the appellant’s appeal against a review decision upholding the Corporation’s decision declining cover for a treatment injury.3
[2] The appellant’s claim for cover arises out of a misdiagnosis when a 20-week anatomy ultrasound scan failed to pick up that the appellant (then a foetus) had a lemon shaped head and that further anatomy scanning should have taken place. If such further scanning had been undertaken it would have revealed that the appellant was suffering from spina bifida.4
[3] The appellant’s mother was granted cover for a treatment injury on the basis that her continued pregnancy was a personal injury caused by the failure to diagnose the appellant’s spina bifida, it being accepted that the mother would have elected to terminate the pregnancy had the misdiagnosis not occurred.5
[4] In dismissing the appeal Judge Sinclair concluded that although the appellant was, like her mother, receiving treatment from a medical practitioner the injury for which she sought cover (spina bifida) was not caused by the treatment she received.6
[5] Leave has been granted by consent, on the basis of an agreed statement of facts, on the following question:
Can a person born with spina bifida (claimant) obtain cover for treatment injury where:
(a)the existence of the claimant’s spina bifida was not, but should have been, detected at the 20-week scan stage;
(b)had the spina bifida been detected, the claimant’s mother would have elected termination; and
(c)the misdiagnosis meant that the opportunity to elect termination was lost to the claimant’s mother?
1 AZ v Accident Compensation Corporation [2021] NZACC 45.
2 At [10].
3 At [46].
4 At [3].
5 At [9].
6 At [43].
[6]The appeal is set down for a half-day hearing on 15 September 2021.
Application to intervene
[7] It is against the background set out above that the Medical Protection Society (“MPS”) has applied for leave to intervene in the appeal.
[8] There is no dispute that the MPS is a not for profit company incorporated in England which provides indemnity to its members, including the radiologist responsible for the misdiagnosis in this case.
[9] MPS has sought leave to make written submissions, and oral submissions “if the court decides that it would benefit from such submissions at the time of the hearing” and that MPS did “not seek to widen the issues before the court”. Particular topics for submission were identified as being:
(a)The “interests of medical practitioners … with respect to the risks presented by the issues to be determined in this matter”; and on
(b)“Issues of general principle and policy about the exposure of health practitioners to liability in New Zealand”.
[10] Elaborating on these points, Mr Waalkens for MPS confirmed that the concern of MPS was that if ACC cover was not granted to the appellant it may mean that members of MPS may face claims for civil liability in the future.
[11] As MPS would be effectively supporting the appeal the application to intervene is supported by the appellant. In contrast, the Corporation questioned whether MPS would be likely to provide the Court with “significantly different or useful submissions to those which will be advanced by the appellant” and submitted it was a reversion to the role providers had had prior to 2005 when the current treatment injury regime was introduced.7 Despite that, the Corporation indicated it would not object as long as
7 Up until 1 July 2005, cover under the Accident Compensation Act 2001 for injuries incurred during treatment was by way of “medical misadventure”. This had two categories: medical error and medical mishap. As medical error incorporated aspects of negligence, a registered health professional could apply to review a decision determining that person had contributed to medical
leave was granted on a limited and defined basis, including restricting the length of written submissions below that otherwise provided for in sch 6 to the High Court Rules 2016.
[12] MPS objected to the imposition of such conditions but in any event the Corporation has subsequently revisited its position when MPS confirmed that, as well as seeking to intervene, it wished to adduce evidence on the appeal. Accordingly, the hearing, scheduled to consider the application for leave to intervene, also considered an oral application for MPS to adduce evidence in the appeal.
The application to adduce evidence
[13] As Mr Waalkens explained on behalf of MPS at the hearing, MPS wishes to call evidence on the following matters:
(a)evidence on the physical consequences of spina bifida;
(b)evidence on the purpose of the 20-week scan, namely that the scan was not just provided for the mother but for the appellant as well; and
(c)evidence on the purpose of the accident compensation regime and the consequences to the medical profession if cover is not granted in this case.
[14] As before, the appellant supported MPS on the application and Mr Schmidt, on behalf of the appellant, indeed went so far as to suggest that additional evidence on the purpose of termination would also be appropriate. Mr Schmidt also confirmed the appellant did not object to a delay in the hearing of the appeal as long as the appeal was still able to be heard this year.
[15] As noted, the Corporation opposed the application. Mr Butler, on behalf of the Corporation, submitted that the application to adduce evidence was not only
error and was otherwise entitled to be present at the hearing of a review or appeal. In contrast, under the treatment injury regime such practitioners have no right to seek a review or to be heard.
inconsistent with the contents of the application to intervene, but was neither relevant to the issues before the Court nor otherwise necessary.
Discussion
[16] At the conclusion of the hearing I indicated that after considering the submissions made by the parties I would either determine the applications or issue further directions, including whether MPS should be given a chance to provide evidence in draft form for further submissions. Having considered the position, I conclude there is sufficient information before the Court to determine the applications and now do so.
[17] There is no dispute that there is jurisdiction to allow intervention, notwithstanding the change in the treatment injury regime in 2005 which eliminated the need to involve treatment providers where the quality of care provided was called into question and the right of such practitioners to participate at review or in an appeal in the District Court.8
[18] Indeed MPS was given leave to intervene against the wishes of the Corporation in C v Accident Compensation Corporation, in which the Court of Appeal determined cover was available for a mother who had not been able to get a termination when spina bifida was not identified following a scan in similar circumstances to the present appeal.9
[19] In that case White J summarized the applicable principles in the following terms:10
(a)the power is broad in nature, but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation;
(b)in an appeal involving issues of general and wide importance, the Court may grant leave when satisfied that it would be assisted by submissions from the intervener; and
8 Accident Compensation Act 2001, ss 142 and 155.
9 C v Accident Compensation Corporation [2013] NZCA 34.
10 At [12]. (footnotes omitted)
(c)the power may be exercised more liberally in appeals involving the Court’s special jurisdiction under legislation such as the Employment Relations Act 2000 and the Rating Powers Act 1988.
[20] In this case I agree with Mr Butler that it is difficult to see how either of the specific matters identified by MPS set out at [9] above are relevant to the matters at issue set out in the agreed question of law at issue in this appeal. The agreed question identifies a discrete separate issue with the answer to which determining whether the appellant is entitled to cover. It does not require either the consideration of the interests of medical practitioners or their exposure to liability.
[21] It is equally difficult to see that any of the matters identified by White J in C v Accident Compensation Corporation are relevant to the present case. Unlike in that case, which involved an issue of general principle and importance,11 the present issue is quite specific and while of immeasurable importance to the appellant does not fall into that category. Similarly, given the high degree of agreement on the facts at issue it is difficult to see there is “relevant expertise in the subject area of the appeal” that would be of assistance to the Judge hearing the appeal,12 nor do the considerations of the importance of the Court of Appeal’s special jurisdiction have any relevance here.13
[22] Likewise, and without giving Mr Waalkens the opportunity to prepare draft evidence on the areas identified, I am satisfied that leave should not be granted to adduce the evidence sought. Rule 20.16(3) of the High Court Rules makes it clear that leave can only be granted if there are special reasons for hearing the evidence. In this case the categories of further evidence identified by MPS are not relevant to the matters at issue,14 either because they have no bearing on the question before the Court or because the subject matter is no longer in dispute.
[23] First, the nature of spina bifida is not in issue in the appeal. Not only did Judge Sinclair clearly acknowledge the effect spina bifida has had on both the
11 At [14].
12 At [15].
13 At [16]. In any event the underlying authority relied upon by White J (Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 436) appeared to turn on whether the Court “may well be assisted by the [proposed intervener’s] submissions on the appeals”.
14 Evidence Act 2006, s 7(2).
appellant and her family,15 but her Honour specifically noted the written statements provided by the appellant and her mother “describing the impact of living with spina bifida and the appellants other health conditions and (in the case of [the appellant’s mother]) of caring for a child with these conditions”.16 Furthermore there is an agreed summary of the appellant’s medical condition provided in the agreed statement of facts accompanying the notice of appeal.
[24] The purpose of the treatment at issue, the 20-week anatomy ultrasound scan, is also not at issue. As Mr Butler confirmed, not only was there clear agreement that there had been a misdiagnosis, but it was also agreed that both the appellant and her mother were receiving treatment from a registered health professional when the scan was obtained and misread.17
[25] Finally, the purpose of the accident compensation regime is not at issue in this appeal, nor are any consequences for the medical profession if cover is not granted, given the outcome of the appeal will turn on the terms of the legislation.
[26] For completeness, it is also difficult to see that evidence with regard to the purpose of termination, the suggestion made by Mr Schmidt, is relevant given the terms of the agreed question of law and given that Mr Schmidt has not sought leave to adduce that evidence in any event.
[27] Given the conclusions I have reached it is clear that leave should not be given to MPS to file any further evidence, and that the strongest argument for allowing participation of any level by MPS in the appeal is that it is supported by the appellant and not initially opposed to any great extent by the Corporation. That is not enough to warrant granting the application for intervention in this case given it involves an area of the law where the legislature had made an explicit decision to limit the need for treatment providers to participate in order to determine claims for cover.
[28] Taking these various matters together I am not satisfied that MPS should be given leave to intervene and that, on the contrary, to do so will almost certainly risk
15 AZ v Accident Compensation Corporation, above n 1, at [8] and [45].
16 At [45].
17 At [28].
expanding the narrow matter at issue and, thereby, lengthen the hearing and otherwise increase the costs of the appeal. As a result, the application for leave to intervene is also dismissed.
Decision
[29] The applications by MPS to intervene and to adduce further evidence on the appeal are dismissed.
[30] Should the Corporation seek costs on the application, a memorandum of no more than three pages is to be filed and served within two weeks of the date of this judgment. MPS will then have two weeks to respond with a memorandum also of no more than three pages, following which I will determine the issue on the papers.
[31]The timetable and hearing dates are confirmed.
Powell J
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