Boulton v Accident Compensation Corporation
[2024] NZHC 497
•11 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002031
[2024] NZHC 497
UNDER Accident Compensation Act 2001 IN THE MATTER OF
An appeal to the High Court pursuant to s 162 of the Act
BETWEEN
TANYA BOULTON
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 5 December 2023 Appearances:
P G Schmidt for Appellant C J Hlavac for Respondent
Judgment:
11 March 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 11 March 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………….
BOULTON v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 497 [11 March 2024]
Introduction
[1] The appellant, Ms Boulton, suffers from high blood pressure (hypertension) that is resistant to treatment. She has had hypertension since a young age. She contends that the cause of her hypertension was stenosis in her right renal artery that should have been diagnosed and treated in 2003. She was 28 years old at that time. The stenosis, a narrowing in the renal artery, is said to have been caused by a slow- acting disease, fibromuscular dysplasia (FMD).
[2] Ms Boulton seeks special leave to appeal to this Court the decision of the District Court of 21 March 2023,1 which declined cover under the Accident Compensation Act 2001 (the Act) for advanced renal stenosis. The Accident Compensation Corporation (the Corporation) granted cover for the physical injuries of the right renal artery and right kidney atrophy that was caused by the failure to undertake the additional diagnostic test but not for the progression of right renal artery stenosis.2
[3] Ms Boulton contends that advanced renal artery stenosis is a treatment injury under s 32 of the Act. The said question of law upon which she seeks leave to appeal is as follows:
Is the appellant’s advanced renal artery stenosis a treatment injury for the purposes of the Accident Compensation Act 2001?
[4] The critical issue I must determine is whether the applicant has established a material error of law capable of bona fide and serious argument.
Factual background
[5] The agreed facts are set out at [7] – [21] of the District Court decision and read as follows:3
[7] On 18 September 2003, Ms Boulton, then aged 28 years old, was admitted to Timaru Hospital after suffering from frontal headaches and neck pain for two weeks. Ms Boulton was identified as having a clinical history of
1 Boulton v Accident Compensation Corporation [2023] NZACC 42.
2 Boulton v Accident Compensation Corporation, above n 1, at [90]–[92].
3 Boulton v Accident Compensation Corporation, above n 1.
hypertension. The attending physician recorded the results of the renal ultrasound as normal.
[8] On 20 October 2003, Dr Burton, the consultant physician, reported that Ms Boulton presented with a severely high blood pressure. He noted that investigations for secondary causes of Ms Boulton’s raised blood pressure had thus far returned normal results. Dr Burton commented that if the results of her renal CT scan were negative, he would diagnose Ms Boulton with essential hypertension (or primary hypertension, which, by definition, has no identifiable cause).
[9] On 6 November 2003, Dr Brew, a radiologist, reviewed Ms Boulton’s renal CT scan and observed that it appeared normal, there being no evidence of scarring, other pathology or other abnormality in the renal arteries.
[10] On 17 November 2003, Dr Burton ruled out secondary cause hypertension based on the negative results of the special investigations and the normal CT renal angiogram results, diagnosing Ms Boulton with essential hypertension.
[11] Between 2005 and 2016, Ms Boulton regularly saw Dr Hills, a consulting physician, at Timaru Hospital. The consultations concerned, inter alia, management and treatment of her hypertension. The medical evidence records that during this period Ms Boulton’s blood pressure continued to increase. She also continued to experience a range of symptoms including headaches and paraesthesia.
[12] On 22 February 2016, Ms Boulton was admitted to Timaru Hospital, suffering from chest pain, numbness in her extremities and severely high blood pressure.
[13] On 19 May 2016, Ms Boulton underwent a CT scan. Based on the results of the CT scan, Dr Hills identified that Ms Boulton had an atrophic right kidney and right renal artery fibromuscular dysplasia (FMD).
[14] On 15 June 2016, Dr McGregor, a nephrologist, identified retrospectively that the FMD had been present in Ms Boulton’s CT scan from 2003 and that there had been a failure to diagnose FMD. In this report, Dr McGregor also recommended nephrectomy of the affected kidney.
[15] Subsequently four providers were asked to review the CT scan reported in 2003 to see whether on a blind peer review basis they would identify the FMD. None of the four identified FMD on the scan.
[16] However, the Corporation subsequently received advice that an additional diagnostic test could have been, and should have been, undertaken and had it been undertaken it is more likely than not that Ms Boulton’s FMD would have been detected. Had it been detected, then atrophy of Ms Boulton’s right kidney (and right renal artery) may not have occurred.
[17] On 8 September 2016, Dr Allawati, a nephrologist, diagnosed secondary cause hypertension caused by Ms Boulton’s FMD. His report noted that failure to treat the FMD in a timely manner had caused Ms Boulton’s hypertension to become treatment-resistant and caused the severe global atrophy of her right kidney.
[18] The Corporation does not accept the diagnosis of treatment-resistant hypertension made by Dr Allawati is accurate. The medical advice it has received is that Ms Boulton’s hypertension is not treatment-resistant, but rather persistent. This is addressed in the reports prepared by medical advisor Dr Garry Brown (dated 9 February 2021) and renal specialist Dr Hay (dated 9 November 2021).
[19] It is accepted that there is a causal link between the failure to correctly diagnose FMD in 2003 (due to the failure to undertake the additional diagnostic test) and Ms Boulton’s right kidney atrophy.
[20] In a decision dated 13 February 2017, the Corporation granted cover for atrophy of the right kidney requiring nephrectomy.
[21] In a decision dated 16 February 2021, the Corporation declined cover for progression of right renal artery stenosis which was upheld at review.
Earlier District Court appeal
[6] On 15 August 2018, Judge Walker in the District Court dismissed an appeal against the decision of the Corporation declining cover for Ms Boulton for FMD.
Judge Walker made the following findings:4
(a)Ms Boulton’s FMD is a pre-existing underlying health condition but is not a “physical injury” which might constitute a personal injury for the purpose of cover under the Act. Central to that conclusion was a finding that Ms Boulton’s symptoms and the cell abnormalities that characterise FMD do not satisfy the requirements necessary to constitute a physical injury under the Act;
(b)While it was accepted that the FMD resulted in stenosis (areas of narrowing) in the renal artery ultimately affecting renal blood pressure, that was not in itself a physical injury caused by an accident;5
(c)While Ms Boulton had suffered from hypertension for a number of years, sufficient to satisfy a diagnosis of secondary hypertension, the medical evidence did not establish a cause for the hypertension.6 Further, Ms Boulton had not established that her hypertension had
4 Boulton v Accident Compensation Corporation [2018] NZACC 133.
5 Boulton v Accident Compensation Corporation, above n 4, at [150].
6 Boulton v Accident Compensation Corporation, above n 4, at [157]–[159].
caused her bodily harm (a requirement for a personal injury that is a physical injury) to attract cover under the Act;7
(d)The Corporation was correct to decline cover for FMD: “No further injuries other than the atrophied kidney have been identified as being contenders for any other future cover arising out of these particular circumstances.”8
[7] Judge Walker’s decision was the subject of an application for leave to appeal to the High Court.9 The application for leave to appeal did not seek to challenge Judge Walker’s determination that FMD was not a covered injury. Rather, it focused on the issue of cover for hypertension (in the form of treatment-resistant hypertension). In declining leave to appeal, Judge Kelly in the District Court upheld Judge Walker’s findings that Ms Boulton’s hypertension was not itself a physical injury and had not caused any physical injuries other than to her right kidney.10 Judge Kelly concluded that:11
In the absence of evidence of physical injuries, and the lack of evidence supporting a causal nexus between Ms Boulton’s undiagnosed disease and further adverse health effects beyond the atrophy of her kidney, for which cover has [been] provided, the appeal cannot succeed.
Decision under appeal
[8] The issue before Judge Henare in the District Court was whether the progression of right renal artery stenosis was a treatment injury.12 On that issue, Judge Henare held that the weight of the medical evidence, as summarised at [63]–[69] and [77]–[87] did not support a finding of renal stenosis as a physical injury.13
[9] The medical evidence and her Honour’s findings based on that evidence included:
7 Boulton v Accident Compensation Corporation, above n 4, at [161].
8 Boulton v Accident Compensation Corporation, above n 4, at [171].
9 Boulton v Accident Compensation Corporation [2020] NZACC 33.
10 Boulton v Accident Compensation Corporation, above n 9, at [39]–[40].
11 Boulton v Accident Compensation Corporation, above n 9, at [45].
12 Boulton v Accident Compensation Corporation, above n 1, at [2].
13 Boulton v Accident Compensation Corporation, above n 1, at [62].
(a)FMD is an arterial disease which is naturally occurring and is characterised by abnormal proliferation in the walls of blood vessels;14
(b)FMD manifests itself in the form of “beading” on the walls of the blood vessels – that is, alternating areas of stenosis and dilation (the so-called string of beads).15 This means that the artery will be wider in some places and narrower in others;16
(c)An effect of stenosis is reduced and ineffective blood flow through the artery which can lead to the death of the artery and the organ (in this case the kidney) to which it is connected;17
(d)There is no treatment available for the abnormal cellular proliferation in the wall of blood vessels that categorises FMD and no intervention which can prevent the “beading” which proceeds, irrespective of whether the stenosis is managed or not;18
(e)Treatment is for the effects of the renal stenosis at the point where medical intervention by way of angioplasty is warranted.19
[10] Following her summary of the evidence, Judge Henare referred to Judge Walker’s finding in the earlier decision (FMD appeal),20 specifically Judge Walker’s finding that FMD was not a “physical injury” which might constitute a personal injury for the purpose of cover under the Act.21 After referring to Judge Walker’s findings,
Judge Henare held that:22
[73] On the evidence, it is apparent the aetiology of stenosis and FMD are not separate conditions, rather they are differing aspects of the same condition. They are inextricably linked with renal stenosis being the physical
14 Boulton v Accident Compensation Corporation, above n 1, at [68].
15 Boulton v Accident Compensation Corporation, above n 1, at [67].
16 Boulton v Accident Compensation Corporation, above n 1, at [69].
17 Boulton v Accident Compensation Corporation, above n 1, at [69].
18 Boulton v Accident Compensation Corporation, above n 1, at [68] and [82].
19 Boulton v Accident Compensation Corporation, above n 1, at [87].
20 Boulton v Accident Compensation Corporation, above n 4.
21 Boulton v Accident Compensation Corporation, above n 1, at [70]. Judge Henare noted that the appellant had been declined leave to appeal to this Court against that decision.
22 Boulton v Accident Compensation Corporation, above n 1.
manifestation of the consequences of FMD being the irregular proliferation of cell results in the distorted blood vessels.
[74] Cover is granted where there has been progression of a disease if that progression results in a discrete physical injury. Here, the Court finds no discrete physical injury, other than the kidney and renal artery for which cover was previously granted.
[11] Judge Henare’s key conclusions are summarised at [92] of the judgment. After confirming that cover for FMD was rightly declined because it is and was a pre- existing underlying health condition,23 her Honour held that cover for progression of renal stenosis was rightly declined because the narrowing of the right renal artery was a natural and inevitable consequence of a non-covered pre-existing underlying health condition, namely FMD.24
[12] In a decision dated 11 August 2023, Judge Spiller in the District Court,25 declined to grant leave to appeal against the decision of Judge Henare under s 162 of the Act.
Relevant legal principles
[13]Section 162 of the Act provides:
Appeal to High Court on question of law
(1) A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.
…
(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.
[14] The principles applicable to an application for leave to appeal under s 162 are settled. In order for leave to be granted, an appellant must identify an error of law involving the proposed appeal. The question of law must be capable of bona fide and
23 Boulton v Accident Compensation Corporation, above n 1, at [92].
24 Boulton v Accident Compensation Corporation, above n 1, at [92(iii)].
25 Boulton v Accident Compensation Corporation [2022] NZACC 135.
serious argument in a case involving some interest, public or private, or sufficient importance to outweigh the cost and delay of a further appeal.26
[15] In Accident Compensation Corporation v Stanley,27 Heath J summarised the principles expressed in the leading Supreme Court case of Bryson v Three Foot Six Ltd28 on what is meant by an appeal only on a question of law:
(a)An appeal cannot be regarded as being brought on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless clearly unsupportable.29
(b)The ultimate conclusion of a fact-finding body can sometimes be unsupportable, or so clearly untenable, as to amount to an error of law. That will occur when proper application of the law requires a different answer. Such cases will arise rarely; for example, cases “in which there is no evidence to support the determination”, “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.30
(c)It does not matter whether an appellate court would have reached a different conclusion on the evidence. The issue is whether the decision under appeal was a permissible option.31
26 Cullen v Accident Compensation Corporation [2014] NZCA 94.
27 Accident Compensation Corporation v Stanley [2013] NZHC 2765.
28 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
29 Accident Compensation Corporation v Stanley, above n 27, at [25].
30 Accident Compensation Corporation v Stanley, above n 27, at [26], citing with approval from Lord Radcliffe in Edwards v Barstow [1956] AC 14 (HL) at 36.
31 Accident Compensation Corporation v Stanley, above n 27, at [27].
(d)An error concerning a particular fact which is only one element in an overall factual finding cannot be said to give rise to a finding of “no evidence” where there is support for the overall finding in other portions of the evidence. It could, however, lead or contribute to an outcome that is unsupportable.32
[16]In addition:
(a)Issues of fact should not be dressed up as questions of law;33
(b)Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law.34
The statutory scheme of the Act
[17]I adopt the following passages from the recent Court of Appeal decision
Accident Compensation Corporation v AZ.35
Statutory purpose
[18]The purpose of the Act is:
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) …
Personal injury
[19] A prerequisite to obtaining cover under the Act is that the claimant must have suffered a personal injury as defined in the Act.36
[20]“Personal injury” is defined in broad terms in s 26(1):
32 Accident Compensation Corporation v Stanley, above n 27, at [28].
33 Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at 363.
34 Commissioner of Inland Revenue v Walker [1963] NZLR 339 (CA) at 354.
35 Accident Compensation Corporation v AZ [2023] NZCA 617 at [7]–[15].
36 Accident Compensation Act 2001, s 20(1).
(1)Personal injury means—
(a)the death of a person; or
(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 provides that the definition of personal injury excludes “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).”
[22]Section 20(2) identifies 10 categories of personal injury, saliently including:
…
(b) Personal injury that is treatment suffered by the person,
…
(f)Personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person:
(g)Personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover.
Treatment injury
[23] “Treatment injury” is defined in s 32(1). For convenience I will set out only the relevant portions of the definition:
(1) 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
(iii)referred to in subsection (7); 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
(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:
(b)personal injury that is solely attributable to a resource allocation decision:
(c)personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.
(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).
…
[24] As can be seen, treatment injury is defined in s 32(1) as including personal injury that is suffered by a person receiving treatment,37 and is “caused by treatment”.38 I also note that s 32(2)(a) explicitly excludes personal injury that is wholly or substantially caused by a person’s underlying health condition.
[25]Under s 33(1) of the Act, “treatment” includes:
(a)the giving of treatment:
(b)a diagnosis of a person’s medical condition:39
…
37 Accident Compensation Act 2001, s 32(1)(a)(ii).
38 Accident Compensation Act 2001, s 32(1)(b).
39 This includes a failure to diagnose. See Adlam v Accident Compensation Corporation [2017] NZCA 457 at [47].
(c)a failure to provide treatment, or to provide treatment in a timely manner:
…
Analysis and decision
[26] Ms Boulton contends that the failure to diagnose and treat renal stenosis in 2003 meant it progressed to advanced stenosis, resulting in many years of untreated hypertension, progressive obstruction of the renal artery and eventually destruction of the right renal artery and kidney.
[27] She says that had the stenosis been diagnosed, it would likely have been treated by angioplasty. Angioplasty widens the artery, thereby resolving the stenosis and returning normal blood flow to the renal artery. This would likely have resolved or improved her hypertension and saved the right renal artery and right kidney.
[28] Ms Boulton contends that her hypertension is a downstream consequence of the failure to treat the stenosis in 2003. She argues that whether hypertension should be covered under the legislation turns on whether renal artery stenosis is a treatment injury (s 20(2)(g)).
[29] Mr Schmidt contended that the nub of the appeal turns on the interpretation of the term “treatment injury” in s 32 of the Act. He contends that the arguable question of law is whether the “treatment injury” includes a harmful, treatable physiological condition (here stenosis) or is it limited to the injuries caused by the harmful condition
– namely the loss of the right renal artery and right kidney. Ms Boulton’s case is that a harmful physiological condition can be a treatment injury if it can be identified and treated.
[30] Mr Schmidt described Ms Boulton’s complaint, in practical terms, as follows: the coverage provided to date by ACC is incomplete. The misdiagnosis has not only caused her to lose her right kidney and right renal artery, but it has also caused her enduring hypertension. No cover is available for hypertension as a disease unless Ms Boulton can first obtain cover for the stenosis as a treatment injury.
[31] Mr Schmidt contends that the District Court Judge wrongfully applied the jurisprudence of the Court of Appeal and Supreme Court in Cumberland v ACC40 (continuing pregnancy following medical error in not detecting spina bifida) and Allenby v H41 (pregnancy following failed sterilisation). He also relies upon the recent High Court decision of AZ v Accident Compensation Corporation.42 In that case, this Court held that a person born with spina bifida (the claimant) could obtain cover for a treatment injury where the existence of the claimant’s spina bifida was not, but should have been, detected at the 20-week scan stage. The Court of Appeal upheld that decision.43
[32]In the AZ Court of Appeal decision, the earlier cases of Allenby and
Cumberland were described as follows:44
[104] As was accepted by the Supreme Court in Allenby, there is cover for the physical impacts of cancer (pain and suffering) which spread following the misdiagnosis of a tumour. In such a case, the pain and suffering are caused by disease, but that pain and suffering would have ended if the tumour had been correctly diagnosed and treated in time to prevent its spread. The exclusion from treatment injury for personal injury that is “wholly or substantially caused by [the] person’s underlying health condition” does not apply, even though the person had cancer and continues to have cancer after the treatment. The cause of the pain and suffering after treatment is the misdiagnosis, so it is a “treatment injury”.
[105] Similarly, as was held in Allenby, although a person who is pregnant suffers physical effects from and because of pregnancy, when pregnancy has occurred because a medical professional has incorrectly performed a sterilisation procedure, the physical effects of pregnancy are a personal injury caused by medical misadventure (now a treatment injury). The exclusion for a person with an underlying condition does not apply.
[33] The Court of Appeal further held that these cases illustrate the need for care in identifying the cause of physical injuries when the claimed basis for cover is treatment injury:45
… When personal injury is caused by treatment injury, the focus is on the physical consequences suffered by the person claiming cover following the treatment. Underlying physical injuries before the treatment that continue after the treatment can be treatment injury if their continuation is caused by a
40 Cumberland v ACC [2014] 2 NZLR 373.
41 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.
42 AZ v Accident Compensation Corporation [2021] NZHC 2752, [2021] 3 NZLR 3791.
43 Accident Compensation Corporation v AZ, above n 35.
44 Accident Compensation Corporation v AZ, above n 35.
45 Accident Compensation Corporation, above n 35, at [107].
treatment failure (for example, a misdiagnosed scan). A gradual process condition in such circumstances is not the same as an underlying health condition that is wholly or substantially the cause of the personal injury.
[34] Mr Schmidt submitted that Judge Henare had made an error of law in concluding that the stenosis was simply a manifestation of the FMD, merely a progression of the disease. Mr Schmidt submitted that she erred in her reasoning that because the disease is not covered, progress of the disease cannot be covered. He further submitted:
(a)The error of law results from concluding that, factually, because one condition leads to the other and the first cannot be a treatment injury, then the second also cannot be a treatment injury;
(b)That is not a finding of fact but rather a determination about how the treatment injury provision works. That is a question of law;
(c)A distinction is to be drawn between FMD and the stenosis caused by FMD; the stenosis can be treated but the FMD cannot be treated;
(d)The claim is essentially similar to that made in Cumberland and AZ: There was a treatment available that would have addressed a physiologically identifiable condition, namely the stenosis.
[35] It is of course critical that the question of law which Mr Schmidt proposed arises from the facts of this case. The proposed question must be one which is capable of bona fide or serious argument in this case.
[36] The fundamental problem for Ms Boulton is that in essence she seeks to challenge Judge Henare’s factual findings, including the fact that FMD and stenosis are not separate conditions, but rather differing aspects of the same condition. She also seeks to challenge the factual finding that the renal stenosis was caused by treatment, namely that if her FMD had been properly diagnosed the stenosis could have been treated.
[37] Section 32(1) of the Act provides that “treatment injury” means personal injury that is suffered by a person receiving treatment from a registered health professional and is caused by treatment, and is not a necessary part, or ordinary consequence of, the treatment. Section 26(1)(b) of the Act provides that personal injury includes physical injury suffered by a person.
[38] In applying the statutory regime, Judge Henare noted that the submissions of counsel raised two questions. The first question was whether the progression of renal stenosis is a physical injury, and whether there is a new injury. The second question was whether there was an alternative treatment that could have prevented the claimed injury that could, and should, have been given (i.e. causation).
[39] Judge Henare first addressed whether treatment failure caused the physical injury other than the harm to the right renal artery and kidney for which cover had already been granted. She conducted an assessment of the available evidence and the previous District Court decision of Judge Walker in Bolton v Accident Compensation Corporation.46 She concluded that the weight of the medical evidence did not support finding the right renal arterial stenosis as a discrete physical injury.
[40] Judge Henare then addressed the second question of causation – was there an alternative treatment that would have prevented Ms Boulton’s claimed injury that could, and should, have been given. She assessed the available medical evidence and had regard to the cover already granted by the Corporation. She found that the medical evidence showed that:47
FMD is an arterial disease which is naturally occurring; an effect of FMD is the progression of arterial stenosis which occurs regardless of whether the stenosis is managed or not; and there is no treatment available for the abnormal cellular proliferation in the wall of blood vessels that categorises FMD.
[41] The Judge ultimately concluded that the Corporation had rightly declined cover for FMD as a pre-existing underlying health condition. Consequently, cover was appropriately declined for cellular proliferation caused by FMD, and for the
46 Boulton v Accident Compensation Corporation, above n 4.
47 Boulton v Accident Compensation Corporation, above n 25, at [61].
progression of renal stenosis, as natural and inevitable consequences of non-covered pre-existing underlying health conditions.
[42] There is no basis to challenge these factual findings. They followed a careful assessment of the evidence and no credible basis has been established for disturbing them. The proposed question of law is not capable of bona fide and serious argument on the facts of this case. In substance, it is an attempt to dress up issues of fact as a question of law. This is not a gradual process condition case where the underlying physical injuries before treatment have continued post-treatment because of a misdiagnosis. This is a gradual process condition of a kind that is excluded by s 26(2). This is not a case where s 20(2)(f) overrides the exclusion contained in s 26(2).48
[43] It is also important to note that in her conclusions on the medical evidence, Judge Henare found that the aetiology of stenosis and FMD are not separate conditions, rather they are “differing aspects of the same condition”. She held that they are inextricably linked “with renal stenosis being the physical manifestation of the consequences of FMD being the irregular proliferation of cell results in the distorted blood vessels”.49
[44] In making those findings, Judge Henare referred to the earlier decision of Judge Walker in Boulton v Accident Compensation Corporation,50 where it was held that Ms Boulton’s FMD is not a “physical injury” which might constitute a personal injury for the purpose of cover under the Act. Central to that conclusion was the finding that Ms Boulton’s symptoms and the cell abnormalities that characterise FMD do not satisfy the requirements necessary to constitute a physical injury under the Act.51
[45] As Mr Hlavac, for the Corporation, submitted, Ms Boulton was declined leave to appeal the decision of Judge Walker to this Court. Therefore, it is not open to Ms Boulton to re-open that finding in the context of this appeal. That issue was the subject of a final determination; this is a case of issue estoppel.52
48 Accident Compensation Corporation v AZ, above n 35, at [25].
49 At [73].
50 Boulton v Accident Compensation Corporation, above n 4.
51 At [156].
52 Talyancich v Index Developments Ltd [1992] 3 NZLR 28 at 37; and Jones v Accident Compensation Corporation [2016] NZHC 2239 at [24]–[27].
[46] There may be some merit in Mr Schmidt’s submission that there is tension between the findings made by Judge Henare.53 However, nothing turns on that. Ms Boulton’s case is fundamentally different from that in Allenby, Cumberland and AZ. Here, neither of the elements of physical injury or causation are made out. The essential elements of a treatment injury have not been established.
[47]For all these reasons leave to appeal is dismissed.
Result
[48]The application for leave to appeal is dismissed.
[49] As to costs, having succeeded, I am of the preliminary view that the Corporation is entitled to costs and on a 2B basis plus disbursements.
[50] If costs cannot be agreed, then memoranda are to be filed (no more than five pages) within 14 days.
Andrew J
53 At [92](iii) and (iv).
0
6
0