Chalmers v Accident Compensation Corporation - [2023] NZHC 2333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1535

[2023] NZHC 2333

BETWEEN
DALE CHALMERS

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 8 August 2023

Appearances:

B R Hinchcliff for Appellant F L Becroft for Respondent

Judgment:

28 August 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 28 August 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

………………………………
Registrar/Deputy Registrar

Solicitors:
Medico Law Limited, Auckland
ACC and Employment Law, Auckland

CHALMERS v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2333 [28 August 2023]

Introduction

[1] This is an appeal on a question of law by the appellant, Dale Chalmers. The substantive outcome she seeks is cover for a treatment injury that was declined by the Accident Compensation Corporation (ACC), a decision which was upheld on appeal by the District Court.1

[2] By s 32(1)(c) of the Accident Compensation Act 2001 (the Act) a treatment injury is a personal injury that is not an “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.

[3] The basis for ACC declining cover was that Ms Chalmers’ injury was an “ordinary consequence” of the treatment.

Facts

[4] Ms Chalmers was diagnosed with multiple sclerosis, aged 38, in 2000. Her mobility and balance became progressively limited. In November 2017, an MRI scan showed she had a large calcified thoracic disc with marked compression of the spinal cord. By this time, Ms Chalmers was only able to walk five to 10 metres. Her surgeon, Mr Edward Yee, advised in December 2017 that this was “amenable to surgical intervention”, but that thoracic disc removal was associated with “a high risk of spinal cord injuries and thus paraplegia”.

[5] Ms Chalmers stated in her evidence at a subsequent ACC review that she discussed the MRI results with her neurologist (Dr Jennifer Pereira). Dr Pereira advised that if Ms Chalmers did not have the surgery she would “become a tetraplegic in no time”. Ms Chalmers said in her evidence:2

1 Chalmers v Accident Compensation Corporation [2022] NZACC 79.
2 From extract of transcript of evidence at review set out in Chalmers v Accident Compensation Corporation, above n 1, at [23].

So I thought – I just sort of quickly said to [Dr Pereira], “Well, really we don’t have much choice, I don’t want to be a tetraplegic”. And I was told there would be a 20 to 25% chance of being paralysed. So I thought, well, I had to take the chance, yeah.

[6] Accordingly, Ms Chalmers elected to undertake the surgery. Unfortunately, although surgery technically went well, she suffered post-operative paraplegia.

[7] In a ward note the day after surgery, Mr Yee described post-operative paraplegia as “one of my major concerns from the operation”. He further recorded in a note the…

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: [2023] NZHC 2333
Decision Date: 28 August 2023

CaseChat Overview and Summary

In Chalmers v Accident Compensation Corporation, the appellant, Dale Chalmers, appealed a decision of the District Court that declined cover for a treatment injury, specifically paraplegia following spinal surgery, which she claimed was an unexpected and devastating outcome. The Accident Compensation Corporation (ACC) argued that the injury was an ordinary consequence of the treatment. The appeal was on a question of law, focusing on whether the District Court erred in interpreting "ordinary consequence" under s 32(1)(c) of the Accident Compensation Act 2001. The High Court dismissed the appeal, affirming the District Court’s judgment. The court held that the District Court had correctly applied the test for determining whether an injury was an ordinary consequence of treatment, considering all relevant circumstances, including the predicted risks and Ms Chalmers' underlying condition. The High Court found that the District Court's reliance on the predicted risk factors and Ms Chalmers’ condition was justified and that the outcome, while unfortunate, was within the normal range of consequences for the surgery. The appeal was dismissed, and no further precision on the statutory term was deemed necessary.

Orders