Brewster v Accident Compensation Corporation - [2019] NZHC 1343

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-695

[2019] NZHC 1343

BETWEEN
ISAAC BREWSTER

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 23 May 2019

Counsel:

J P Miller for Applicant

A S Butler for Respondent

Judgment:

13 June 2019

JUDGMENT OF MALLON J

Introduction

[1] Isaac Brewster is 9 years old. He has cerebral palsy. This is because he suffered hypoxic ischaemic encephalopathy when he was born in breech (feet first) position by vaginal delivery. Breech presentation had not been diagnosed before his mother went into labour.

[2] Isaac requires assistance with the basic functions of living. He sought cover under the Accident Compensation Act 2001 (the Act) on the grounds he had suffered a treatment injury. The Accident Compensation Corporation (ACC) declined cover and that decision was upheld on a review. The District Court also found against him.1

1 Brewster v Accident Compensation Corporation [2016] NZACC 290.

BREWSTER v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1343 [13 June 2019]

The District Court then declined to grant him leave to appeal this decision.2 He now applies for special leave to appeal the District Court decision declining him cover.3

[3]Special leave to appeal is sought on the following questions of law:

(a)did the District Court err in finding that the fact of an incorrect diagnosis could not, in itself, support a claim for cover under ss 32 and 33(1)(b) of the Act;

(b)did the District Court err in finding that cover was excluded through s 32(3) of the Act; and

(c)did the District Court err in finding that no treatment injury occurs where (with the benefit of objective hindsight) a difference course of treatment could have yielded a better result?

The background

[4] Mrs Brewster went into labour on 27 January 2010. At around 4.40 pm, when labour was well underway, it was discovered that Isaac was in a breech position. Mrs Brewster was taken by ambulance to hospital. She arrived there at 5.25 pm. By this time both of Isaac’s feet were protruding from his mother. The consultant on duty elected to proceed with vaginal delivery. At 5.35 pm a general anaesthetic was requested. At 5.43 pm Isaac was delivered with the use of forceps.

[5] Mrs Brewster was under the care of midwives during her pregnancy. Three midwives in total carried out seven abdominal palpation examinations in antenatal visits carried out between 1 December 2009 and 1.30 pm on 27 January 2010 (the day of Isaac’s birth). These examinations did not diagnose that Isaac was in a breech presentation.

[6] The expert evidence before the District Court was that, on the balance of probabilities, Isaac was in breech position at the last antenatal visit at 1.30 pm on

2 Brewster v Accident Compensation Corporation [2018] NZACC 135.
3 Accident Compensation Act 2001, s 162.

27 January 2010. Based on this evidence, the District Court accepted that Isaac was in breech by the antenatal visit on 27 January 2010…

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.

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Details

Case: [2019] NZHC 1343
Decision Date: 13 June 2019

CaseChat Overview and Summary

Isaac Brewster, a child with cerebral palsy due to a birth injury, applied for special leave to appeal against the District Court's decision to decline cover under the Accident Compensation Act 2001. The District Court had found that Isaac's birth injury did not constitute a treatment injury under the Act. The key issues for the High Court to decide were whether the District Court had erred in its interpretation of the Act in finding that the incorrect diagnosis of Isaac's breech position did not support a claim for cover, whether the exclusion of cover under s 32(3) of the Act was correctly applied, and whether the District Court had correctly determined that no treatment injury occurred where a different treatment course might have yielded a better result.

The High Court found that it was seriously arguable that the District Court had misapplied the law by focusing on whether the midwife had acted with reasonable care rather than applying the test established by the Court of Appeal in Adlam v Accident Compensation Corporation. The Court considered it was also arguable that the District Court had misapplied the balance of probabilities standard in its causation findings, particularly in relation to the timing of the final ultrasound scan and the likelihood of diagnosing Isaac's breech position. The Court accepted that these were arguable points of law of sufficient importance to warrant an appeal.

Accordingly, the Court granted special leave to appeal and outlined the legal questions to be determined on the appeal. The Court also directed that a telephone conference be held to set directions for the substantive appeal hearing and reserved the issue of costs to be dealt with as part of the appeal.

Orders