Chalmers v Accident Compensation Corporation
[2023] NZHC 2333
•28 August 2023
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 following day that in a call with Ms Chalmers’ partner: “I have also explained that one of my biggest concerns was postoperative paraplegia which appears to have occurred.” Mr Yee referred Ms Chalmers to the Auckland Spinal Rehabilitation Unit on 10 February 2018. His letter stated: “I advised [Ms Chalmers] that surgery was a possibility, but unfortunately there is a higher risk of spinal cord malfunction or paralysis following this type of surgery.”
[8] On Ms Chalmers’ behalf, Mr Yee made an ACC treatment injury claim on 12 February 2018. In an accompanying email to the ACC Technical Claims Manager, he commented that “the outcome of paraplegia is unexpected and devastating for all parties involved”.
[9] ACC investigated the claim and obtained independent advice from Dr Vasudeva Pai, an orthopaedic surgeon who reported on 5 April 2018. When asked to confirm the physical injury causing the symptoms, Dr Pai referred to documentation from Mr Yee as to the relationship between the surgery and to new neurological changes. He expressed the view that:
… the development of new neurology (complete paraplegia) is related to [Ms Chalmers’] surgery and is a known complication of surgery in this rare complex spinal condition and this neurological deterioration has been widely reported as being 24 to 75 per cent in giant calcified disc surgeries.
[10] In a section on whether he considered the post-procedure paraplegia an ordinary consequence of treatment or not, Dr Pai noted one of the reference articles as suggesting a 20 per cent rate of neurological complications following such surgery even in the best centres. In a later supplementary report dated 17 November 2019, Dr Pai identified that this article (that he had been asked to review by Ms Chalmers
for the further report) was not actually relevant to Ms Chalmers’ case. However, he referred to updated references including specifically a 2018 article indicating the incidence of neurological deterioration after surgical treatment on giant calcified herniated thoracic discs was between four to 10 per cent. He considered the incidence for Mr Chalmers as being raised to around 20 per cent given her pre-existing multiple sclerosis. Overall, he concluded that his opinion remained the same as in his initial report.
[11] ACC decided that in all the circumstances the post-operative paraplegia was an ordinary consequence of her spinal surgery.
[12] This decision was upheld on appeal by District Court Judge D Henare.3 Leave to appeal Judge’s Henare’s decision on a question of law was declined by Judge PR Spiller in the District Court.4 However, special leave to appeal was then granted by Harvey J.5 Harvey J granted special leave to appeal on whether the District Court failed to correctly apply s 32(1)(c).
Meaning of “ordinary consequence”
[13] In Accident Compensation Corporation v Ng,6 after a comprehensive review of the legislative background, the Court of Appeal provided the following guidance on the correct interpretation of “not a[n] … ordinary consequence” within s 32(1)(c):
[68]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.
[69]Whether an adverse consequence is inside or outside the normal range of consequences of the medical treatment given to a particular claimant
3 Chalmers v Accident Compensation Corporation, above n 1.
4 Chalmers v Accident Compensation Corporation [2022] NZACC 156.
5 Chalmers v Accident Compensation Corporation [2023] NZHC 925 [Special Leave Decision].
6 Accident Compensation Corporation v Ng [2020] NZCA 274, [2020] 2 NZLR 683 [Ng – Court of Appeal Decision].
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 analysis (subject to the reservations detailed below) as well as the clinical experience of the treating physician(s) and other specialists.
[70]As raised with counsel during the hearing, we consider that some caution is required when drawing on statistical analysis contained in medical studies of the kind referred to in the decisions below, and in the expert evidence before us. Many of these studies involve small numbers of cases, and often the results are not accompanied by any measure of their statistical significance. There may also be significant differences between the group studied – patients in a particular hospital or on a specialised programme for example – and the group of recipients of similar treatment(s) in New Zealand. The way in which the treatment group is defined, and the way in which adverse outcomes are defined, will often involve significant judgment. These factors underscore the problematic nature of a test based on statistical frequency alone, including the 2001 test of rarity and the Judge's preferred test, focused on whether the adverse consequence is more probable than not. The 2005 amendment deliberately moved away from a statistical assessment of risk to a test that requires the exercise of judgment.
[71]We acknowledge the temporal distinction between risk and consequence as highlighted by Ms Peck. Although risk assessments undertaken by doctors are based on the frequency of past actual occurrences and therefore are clearly relevant, we agree the focus should be on whether the outcome that occurred is within the range of ordinary consequences rather than whether the risk of the outcome was predicted in advance of treatment in a particular claimant's case.
[14] The Court of Appeal remitted the two cases before it back to the District Court, having allowed the appeal and quashed the High Court decision which had held that an “ordinary consequence” meant a consequence that is more probable than not.
[15] Examples of injuries that would not be deemed ordinary consequences of treatment include: injury caused by an unanticipated allergic reaction to medication administered as part of a procedure; or a nerve being cut in a procedure, that nerve being in an unanticipated position.7
7 Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102 at [43]-[44].
District Court Judgment
[16] The Court of Appeal decision in Accident Compensation Corporation v Ng featured prominently in the District Court decision. I adopt Harvey J’s summary of the District Court judgment:
[13]On 5 May 2022 Judge Henare delivered her decision on the appeal.8 The Judge set out the agreed facts and medical evidence.9 She recorded the agreement between parties that there was a [causal] nexus between the surgery and the post-surgery paraplegia. The “only issue to resolve” was:10
whether or not the post-surgical paraplegia is an ordinary consequence of the treatment, taking into account all of the circumstances of the treatment, including Ms Chalmers’ underlying health condition and the clinical knowledge at the time of the treatment.
[14]After canvassing the parties’ submissions Judge Henare set out the legal framework in some detail. She referred to s 32 of the [Act] which defines “treatment injury” as excluding “an ordinary consequence of the treatment”.11 Judge Henare stated the leading case on “not an ordinary consequence” was the Court of Appeal decision Accident Compensation Corporation v Ng and cited the Court’s analysis.12 The Court of Appeal held the phrase means “an outcome that is outside the normal range of outcomes, something out of the ordinary which occasions a measure of surprise”. Judge Henare highlighted the Court of Appeal’s point that the test had moved away from statistical frequency alone to tests which permit the decision maker to exercise judgment.13
[15]Judge Henare noted that in the period prior to surgery Ms Chalmers’ mobility was rapidly declining. Ms Chalmers knew that if she did not have surgery, her condition would most likely lead to paraplegia.14 She also knew that paraplegia was a risk of the surgery itself. The surgery was challenging but went smoothly. Although [Mr]Yee had stated in his application to the Corporation that the outcome was “unexpected and devastating” this had to be assessed in light of his clinical reports both pre- and post-surgery where paraplegia was an acknowledged risk.15 While the paraplegia was neither expected nor desirable it was not “surprising”.16
8 Chalmers v Accident Compensation Corporation, above n 1.
9 At [5]–[44].
10 At [47].
11 At [58].
12 At [59]–[60], citing Ng – Court of Appeal Decision, above n 6, at [67]–[72].
13 At [61].
14 At [69]–[72].
15 At [77].
16 At [77].
[16]Further, while accepting statistics could not be determinative, Judge Henare considered they were a relevant consideration and took account of Dr Pai’s statistical evidence. She did, however, note that she preferred his estimate of a 4-10 per cent risk because that was supported by a study provided in evidence, whereas for his estimate of 20 per cent risk in Ms Chalmers’ case he did not identify the basis for this claim.17
[17]The Judge then summarised her findings accordingly:18
(a)The nature of the harm suffered is paraplegia. It is a severe condition that will prevent Ms Chalmers from walking for the rest of her life.
(b)Ms Chalmers’ multiple sclerosis may have made her more susceptible to post-operative paraplegia since, in the view of Dr Pereira, it was contributing to her immobility.
(c)Mr Pai’s (sic) analysis of medical statistics indicates there is in general a 4 to 10% chance of post-operative paraplegia after the type of surgery undertaken by Ms Chalmers.
(d)Mr Yee … indicated before the operation was performed there was a high risk of post-operative paraplegia.
[18]Judge Henare concluded that while Ms Chalmers’ paraplegia was devastating, her post-operative paraplegia was within the normal range of consequences of the surgical treatment, and thus an ordinary consequence of the surgery.19 The appeal was dismissed.
Special Leave
[17] Harvey J concluded that there was a bona fide and serious argument that the District Court Judge erred in the interpretation of “not a[n] … ordinary consequence, of the treatment” and its application to paraplegia from spinal surgery with an existing spinal disease, being a question of law.
[18]He identified two areas of potential concern:
(a)the extent to which the District Court Judge relied on predicted risk factors;20 and
17 At [84]–[85].
18 At [87].
19 At [88].
20 Special Leave Decision, above n 5, at [42].
(b)the extent to which the District Court Judge relied on Ms Chalmers’ underlying condition.21
[19] I have decided to dismiss the appeal for the reasons set out below. The submissions before me were marshalled around the two areas identified by the High Court in granting leave. I adopt the same approach.
Extent to which District Court relied on predicted risk factors
[20]Harvey J described the first potential error in the following terms:
[42] … I consider there is a serious argument that [the District Court Judge] was in error by finding that the fact doctors and Ms Chalmers were well aware of the risk and possibility of paraplegia means there could not have been a “measure of surprise”. Such a conclusion at first blush seems overly broad in light of advanced medical technology, knowledge and understanding that can predict a wide variety of risks, and doctors’ obligations to inform their patients of such risks. The Court of Appeal in Ng stated that “the focus should be on whether the outcome that occurred is within the range of ordinary consequences rather than whether the risk of the outcome was predicted in advance of treatment in a particular claimant’s case”. There is value in clarifying the legal position for whether (and when) adverse consequences which are predictable and indeed predicted may still “occasion a measure of surprise” for the purposes of being a treatment injury.
(Footnotes omitted).
[21]Mr Hinchcliff for Ms Chalmers emphasised two matters:
(a)Mr Yee’s reference in the claim to ACC that the outcome was “unexpected”; and
(b)Dr Pai’s conflicting discussion of statistics and whether there was any sufficient basis for his assessment of the risks of the operation.
[22] As to the former, Mr Hinchcliff submitted that if something is “unexpected” it cannot be “ordinary”. He also emphasised that to obtain informed consent, it must be in writing if there is a “significant risk” of an adverse event. Accordingly, he said, all “significantly possible risks” must be advised. He said knowledge of such risks in
21 At [43].
advance of treatment does not mean that the outcome, if one occurs, is not a surprise. He characterised ACC’s position as being that knowledge of a possibly bad outcome defeats the surprise element.
[23] Judge Henare found that while Ms Chalmers’ paraplegia was certainly neither expected nor desirable, it was not surprising.22 She came to this conclusion taking into account all of the circumstances both of the treatment itself and those relating to Ms Chalmers. Her conclusion was manifest from the clinical reporting of Mr Yee before the surgery and immediately post-surgery on discovering the fact of the post- operative paraplegia. In the context of his previous statements (referred to in the fact section above) and the circumstances overall, Mr Yee’s single reference to the outcome being “unexpected” is not determinative. The Judge was justified in concluding that in all the circumstances the paraplegia was an ordinary consequence.
[24] Moreover, while Mr Hinchcliff may be correct that a treatment provider must advise of significant risks, that does not assist with the question of whether in the circumstances of this case, the nature of the risk was such that it was an ordinary consequence.
[25] As to the second point, Mr Hinchcliff criticised the District Court Judge’s reliance on statistics and specifically on Dr Pai’s assessment. That criticism is unjustified. The conclusion in Ng was that the 2005 amendment to the Act had deliberately moved away from a statistical assessment (which had previously focussed on an outcome that is “rare” defined by reference to percentages). The Court held it was therefore wrong to import into the assessment a 50 per cent threshold as the High Court had done, particularly when that threshold would seldom be reached.23 Judge Henare was plainly conscious of the Court of Appeal’s caution in Ng that statistical analysis should not be the focus.24 She emphasised this in her decision.25 But the Judge remains correct to say that this does not mean statistics and risk assessments are
22 Chalmers v Accident Compensation Corporation, above n 1, at [77].
23 Ng – Court of Appeal Decision, above n 8, at [10] and [66].
24 At [70].
25 Chalmers v Accident Compensation Corporation, above n 1, at [61] and [83].
an irrelevant consideration26 and to have considered these. They are part of the overall mix, or as Ms Becroft for ACC submitted, they were one piece of the puzzle.
[26] The statistics were certainly not considered by Judge Henare to be determinative. Judge Henare noted that the risk of paraplegia changed in Dr Pai’s two reports from 24 per cent to 75 per cent in his first report, to between four per cent and 10 per cent generally and to a 20 per cent risk in respect of Ms Chalmers in light of her susceptibility due to multiple sclerosis.27 The Judge expressly recorded that she placed less weight on the 20 per cent susceptibility statistic given that Dr Pai did not refer to a basis for this assessment.28 Dr Pai’s four to 10 per cent statistic as to the risk generally for the operation was referred to by the Judge as one factor in the analysis she made “[s]tanding back”. The Judge noted that this figure was supported by a 2018 article available at the time of Dr Pai’s supplementary review.29
[27] In my view Judge Henare’s reference to Dr Pai’s reports need to be seen in the context of the rest of her analysis which include a holistic assessment of the circumstances of Ms Chalmers, her treatment, and the clinical reporting of her doctors. Judge Henare did not determine that simply because paraplegia was identified as a potential outcome pre-surgery, it was an ordinary consequence. That was however one of the factors considered as the degree of risk in this case was significant, thus making it a significant factor.
[28] Harvey J saw there might be value in clarifying the legal position for whether (and when) adverse consequences which are predictable still occasion a measure of surprise.30 I am conscious of the Court of Appeal’s caution that it is not for the Court to redefine the words used in the statute.31 The legislature has deliberately chosen an inherently imprecise word – “ordinary”. Moreover, in my view, the extent to which predicted risk factors are considered/weighed in the final analysis of what constitutes an ordinary consequence will always be a matter of fact and degree.
26 At [83]
27 At [84]. .
28 At [85].
29 At [84].
30 At [42].
31 Ng – Court of Appeal Decision, above n 8, at [72].
[29] In this particular case, Judge Henare exercised her judgment having regard to all factors including the predicted risk factors. Having heard the full argument on appeal, I do not think it is practicable or appropriate to inject any more precision into the test in the context of this case.
Evidential point
[30] Mr Hinchcliff addressed me on aspects of the evidence, which did not seem to me to be related to the point of law on which appeal had been granted, as opposed to being submissions purely on the evidence. Nonetheless, I address them.
[31] In addressing the use of predicted risk factors, Mr Hinchcliff suggested that Ms Chalmers’ reference in her evidence in the ACC Review to being advised that she had a “20-25 per cent chance of being paralysed” was not advice that she would have that chance of being “paraplegic”. Mr Hinchcliff sought to draw a distinction between being “paralysed” and becoming “paraplegic”. He appears to have advanced this argument as a platform to say that the risk of the surgery was not high. He suggested that Ms Chalmers was simply being told that she had a 20 to 25 per cent chance of remaining the same (i.e. having some paralysis), given that she already had a significant lack of mobility. Mr Hinchliff’s interpretation of the transcript was not advanced in the District Court.
[32] I reject this interpretation of Ms Chalmers evidence. Consistent with Mr Yee’s advice that the risk of surgery was “high”, Ms Chalmers was referring to advice from him that she had a 20 to 25 per cent risk of becoming a paraplegic post-surgery and this was relative to the inevitability that she would become tetraplegic without the surgery.
[33] I also disagree with an interpretation Mr Hinchcliff advanced concerning the following passage of Dr Pai’s supplementary report:
I have given updated information with further references of an article of 2018 which is on 164 cases at major centres where neurological deterioration may vary from 4 to 10%. I have provided the incidence of deterioration as being around 20% in [Ms Chalmers’] case taking into consideration of pre-existing multiple sclerosis as there is bound to be some deterioration in anyone with multiple sclerosis following surgery.
[34] Mr Hinchcliff submitted that the reference to a 20 per cent deterioration in Ms Chalmers’ case, was to deterioration Ms Chalmers was going to experience anyway irrespective of her surgery. That would plainly be irrelevant, and in my view is not what the passage is describing. Rather, consistent with Judge Henare’s reading of this, Dr Pai is referring to a greater likelihood (20 per cent) of neurological deterioration as a result of surgery due to susceptibility on account of Ms Chalmers’ underlying condition. This was compared with the four to 10 per cent risk of neurological deterioration following such surgery generally referred to earlier in the passage. In any event, the Judge recorded that she placed less weight on Dr Pai’s 20 per cent figure given that he gave no basis for it.
[35] Mr Hinchcliff also drew attention to an article listed in the references to Dr Pai’s initial report, emphasising that while complications occurred in 14.6 per cent of 82 thoracic discs in 71 patients treated surgically, only 65 per cent of these had a calcified discs as in Ms Chalmers’ case and only the latter had paralysis. While that is correct, it is evident from the summary Dr Pai provided of this particular report that the 14.6 per cent he referred to is a reference to complications generally in the 82 discs treated, so it cannot be suggested he was using this for any more specific comment than that. It is not an article to which particular emphasis was drawn in Dr Pai’s analysis.
[36] Mr Hinchcliff spent some time discussing an article relied upon by Dr Pai in his initial opinion as supporting his conclusion which he then later said was not relevant when referred to by Ms Chalmers in support of her position.32 However, the Judge did not place any particular reliance on this and I do not consider this point advances the merits of the appeal.
Extent to which District Court relied on Ms Chalmers’ underlying condition
[37] The second aspect identified by Harvey J as giving rise to a potential error was as follows:
32 Referred to at [10] above. The article was entitled Idiopathic spinal cord herniation associated with calcified thoracic disc extrusion – case report.
[43] Additionally, the Judge appears to have taken into account the fact Ms Chalmers may have inevitably been facing paraplegia due to her multiple sclerosis.33 In particular, in her summary of the relevant circumstances, the Judge stated “Ms Chalmers’ multiple sclerosis may have made her more susceptible to post-operative paraplegia since it was contributing to her immobility in the view of Dr Pereira”.34 It is arguable an error of law may have arisen here, given the findings of the High Court in Ng (findings which were not upset on appeal).35
[38] The reference to the findings of the High Court in Ng was to the Judge rejecting a submission that in assessing the ordinary consequences of treatment, the Court is entitled to have regard to the consequences of the underlying health condition if left untreated. In that case, Churchman J discussed the scenario where a patient’s particular medical condition, left untreated, would likely result in death; but, death is also an extremely unlikely and unpredictable outcome of the patient’s medical treatment. In those circumstances, if treatment is the proximate cause of the patient’s death, the probability that ultimately the patient would have died from the underlying health condition is irrelevant to whether a claim for treatment injury should be accepted.36
[39] Reading the full judgment and the Ng cases in context, I do not consider that the Judge was in error. She did not view the fact that Ms Chalmers was likely going to become paraplegic due to the multiple sclerosis as relevant to whether the treatment could be said to have caused the paraplegia. Nor was she suggesting that the paraplegia was an ordinary consequence of surgery on the basis that one day Ms Chalmers would likely be paraplegic anyway due to her medical condition.
[40] By her reference to “susceptible” in her summary, the Judge was legitimately identifying Ms Chalmers’ possible susceptibility to a worse outcome following the surgery because of her multiple sclerosis. This was doing no more than applying the Court of Appeal’s guidance to have regard to: “circumstances pertaining to the patient which may have rendered them more or less susceptible to the adverse consequence”.37
33 Chalmers v Accident Compensation Corporation, above n 1, at [19], [20], [23], [69], [72], [86] and [87(b)].
34 At [87(b)].
35 Accident Compensation Corporation v Ng [2018] NZHC 2988 at [94]–[97].
36 At [94].
37 Ng – Court of Appeal Decision, above n 8, at [69].
[41] The other relevance the Judge placed on the fact that Ms Chalmers may have inevitably been facing paraplegia without the surgery, was to her conclusion that Ms Chalmers proceeded with what was risky surgery given the high risk of paraplegia even without surgery. That is, it informed Ms Chalmers’ decision to proceed with an operation that had a significant risk of a severe consequence. This was part of the overall circumstances of the case relevant to the Court’s judgment as to whether the paraplegia was an “ordinary consequence” of the surgery on the particular facts. That is, Ms Chalmers’ underlying condition did feature strongly in the judgment but that was because it was central to her decision to proceed with an inherently risky surgery.
[42] Finally in respect of the underlying condition, Mr Hinchcliff addressed me on whether s 32(2)(a) of the definition of “treatment injury” was satisfied. This provides that a treatment injury does not include personal injury that is wholly or substantially caused by a person’s underlying health condition. This section has no relevance to the appeal. As recorded as an agreed fact by the District Court Judge38 and reaffirmed before me by counsel for ACC, there is no dispute between the parties that the personal injury (paralysis) was caused by the treatment.
Conclusion
[43] The Court of Appeal in Ng said that its interpretation did not provide the precision or comprehensive guidance counsel were seeking.39 Noting this, in the special leave application, Harvey J saw that there were potentially “distinctive features [in the present case] that interact with the legal test, and if that interaction were clarified it would provide precedent value”.40 He referred to the fact of the underlying condition that would have led to paraplegia if untreated; the knowledge that the risk of paraplegia was possible before the surgery; and the fact that paraplegia is a permanent and severe consequence.
[44] Having had the benefit of a review of all the documents and of full argument on appeal, in my view Judge Henare framed her judgment correctly with reference to, and applying, the terms of s 32 of the Act and the leading judgments of Adlam and Ng.
38 Chalmers v Accident Corporation Commission, above n 1, at [46].
39 Ng – Court of Appeal Decision, above n 6, at [72].
40 Special Leave Decision, above n 7, at [44].
The Judge came to a view based on her assessment of all the circumstances and with appropriate caution about the use of statistics. This is the approach that the Court of Appeal decision in Ng requires.
[45] As emphasised by the Court of Appeal where, as here, Parliament has chosen to use an imprecise test, the Court should guard against then creating precision through legal decision. 41 Ultimately I have concluded that no further gloss on the statute’s words are necessary or justified arising from the facts of this case. The appeal is dismissed.
[46]There is no issue as to costs.
Anderson J
41 Ng – Court of Appeal decision, above n 8, at [72] referring to Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54] per Blanchard J citing R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 (HL) at 29.
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