Chalmers v Accident Compensation Corporation
[2023] NZHC 925
•26 April 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 925
UNDER the Accident Compensation Act 2001 IN THE MATTER
of a special leave application pursuant to s 162 of the Act
BETWEEN
DALE CHALMERS
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 22 February 2023 Appearances:
B Hinchcliff for the Applicant F Becroft for the Respondent
Judgment:
26 April 2023
JUDGMENT OF HARVEY J
This judgment was delivered by me on 26 April 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Date: …………………..
(Deputy) Registrar
Solicitors:
ACC and Employment Law, Auckland Medico Law Limited, Auckland
CHALMERS v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 925 [26 April 2023]
Introduction
[1] In 2000, Dale Chalmers (then aged 38) was diagnosed with multiple sclerosis (MS). As her condition advanced and her health deteriorated, Ms Chalmers’ medical team including her orthopaedic specialist, Edward Yee, confirmed that she needed surgery. Otherwise, a spinal condition that had developed could deteriorate and lead to her becoming a paraplegic. Ms Chalmers underwent spinal surgery on 7 February 2018. Soon after she suffered a T6 paraplegia injury. On 12 February, Mr Yee filed an ACC claim for a treatment injury as the outcome was “unexpected and devastating”.
[2] On 2 May 2018, the Accident Compensation Corporation declined cover. The present proceedings stem from that and subsequent related decisions. An appeal to the District Court was filed on 6 January 2021. Judge D L Henare dismissed Ms Chalmers’ appeal on 5 May 2022.1 She subsequently sought leave to appeal to this Court. That application was also dismissed by Judge P R Spiller on 16 August 2022.2 Ms Chalmers now applies for special leave to this Court.
[3]The issue for determination is whether leave should be granted.
Background
[4] It is accepted that Ms Chalmers has pre-existing multiple sclerosis. She took an MRI scan on 16 November 2017 which revealed a large thoracic disc protrusion at T6/73 and severe spinal canal narrowing in the same area.4 Dr Pereira, a neurologist, recorded in a referral letter the next day, in part, that Ms Chalmers should proceed with surgery because she “believe[d] it is contributing to [Ms Chalmers’] immobility”. She referred Ms Chalmers for a surgical opinion.
[5] Then on 17 December 2017, Dr Yee, an orthopaedic surgeon, recorded in his correspondence with Dr Pereira that Ms Chalmers wanted to proceed with surgery. He noted that he had informed Ms Chalmers that it was not possible to determine whether her spine injury as described above or her pre-existing MS were causing her
1 Chalmers v Accident Compensation Corporation [2022] NZACC 79.
2 Chalmers v Accident Compensation Corporation [2022] NZACC 156.
3 Between the sixth and seventh thoracic vertebrae.
4 Spinal canal narrowing can cause compression on the spinal cord.
symptoms, including “extreme difficulty walking”. He also informed Ms Chalmers of the potential risks and side effects of the surgery including that “thoracic disc removals are associated with a high risk of spinal cord injuries and thus paraplegia”. He also confirmed that where a disc is calcified it will often be completely adherent to the dura (membrane surrounding the spinal cord) and a dural tear is very likely as a result of attempting to remove it.
[6] The surgery took place on 7 February 2018. It went well however Ms Chalmers did suffer a dural tear which had to be patched.5 On 8 February 2018, the on-duty doctor noted Ms Chalmers appeared not to have voluntary motor power in her lower body. Dr Yee recorded that “[u]nfortunately the clinical picture today is suggestive of post-operative paraplegia which is one of my major concerns from the operation”. An MRI found oedema (swelling) within the spinal cord at the T6/7 level but no obvious physical issues contributing to lack of lower body motion. The diagnosis of post-operative paraplegia was confirmed on 9 February 2018. Ms Chalmers also suffered neurological deterioration which is linked with the paraplegia.
[7] Five days after the surgery, Dr Yee lodged a claim for cover with the Corporation. He stated in a supporting letter to the technical claims manager that the paraplegia was “unexpected and devastating”. In subsequent correspondence, Dr Yee explained that it was difficult to identify what was specifically responsible for the paraplegia, but there was “no doubt” that the surgery was responsible.
[8] The Corporation then obtained an independent opinion dated 5 April 2018 from Dr Pai based on a desktop review. This report recorded Dr Pai’s opinion that paraplegia following surgery “is a rare surgical complication”. In a review of the literature, he recorded that neurological issues occur at a risk of 20 per cent for this surgery. The Corporation then decided on 2 May 2018 to decline cover, claiming that the paraplegia was an ordinary consequence of the treatment and that that the new symptoms Ms Chalmers was experiencing were from progression of her underlying spinal cord impairment and multiple sclerosis.
5 This did not contribute to the paraplegia.
[9] Following that, on 24 May 2018, Dr Pereira reported a post-operative paraplegia neurogenic bladder and bowel dysfunction. She also referred to post-operative MRI imaging which showed at the T6/7 level a localised, enhancing signal change which “do not look typical of an MS lesion”.
[10] On 17 November 2019 in a supplementary report, Dr Pai stated that based on research the incidence of Ms Chalmers’ injury is 4 to 10 per cent. A summary of studies was provided. This was then raised to 20 per cent considering the pre-existing multiple sclerosis, but no reasons were provided.
[11] On 27 October 2020 Dr Noventa made a report reviewing the clinical notes and other existing documents relating to the claim. She concluded that “while acknowledging paraplegia was a possible outcome it was likely not an expected outcome”.
Procedural history
[12] After the initial decision to decline cover, a late review application was filed in April 2019 which was not accepted by the Corporation.6 A subsequent review upheld that decision. Following that, there was an appeal which was resolved by the parties agreeing to have the issue remitted back to review.7 That took place on 8 December 2020, and on 5 January 2021 the review was dismissed.
[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 casual 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,
6 A previous review application had been filed and withdrawn by another advocate. The April application stated that the legal fees of the first advocate were prohibitive and withdrawal was done without Ms Chalmers’ consent.
7 Chalmers v Accident Compensation Corporation DC Auckland ACR 310/19, 20 April 2020 (Minute of Judge JH Walker).
8 Chalmers v Accident Compensation Corporation, above n 1.
9 At [5]–[44].
10 At [47].
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 Accident Compensation Act 2001 (the ACC 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 Dr 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
[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
11 At [58].
12 At [59]–[60], citing Accident Compensation Corporation v Ng [2020] NZCA 274, [2020] 2 NZLR 683 at [67]–[72].
13 At [61].
14 At [69]–[72].
15 At [77].
16 At [77].
17 At [84]–[85].
[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 (sic) 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.
[19] On 16 August 2022 Judge Spiller considered the leave to appeal application.20 Ms Chalmers’ advocate argued that multiple sclerosis is an irrelevant consideration because the evidence establishes the surgery caused the paraplegia; the Court incorrectly relied on Dr Pai’s evidence who is not a neurosurgeon and his percentages were incorrect; and the Court incorrectly found that a four to 10 per cent chance of injury does not occasion a measure of surprise whereas in Accident Compensation Corporation v Ng the Court of Appeal found that Ms Ng’s 16–22 per cent and Ms L’s 10–38 per cent chances occasioned a measure of surprise.
[20] Judge Spiller found that Judge Henare’s decision contained no errors of law and turned to assess whether any errors of fact amounting to an error of law were present.21 First, the Judge found that Judge Henare did not make a mistake of fact in her reference to multiple sclerosis because it made her more susceptible to the adverse
18 At [87].
19 At [88].
20 Chalmers v Accident Compensation Corporation, above n 2.
21 At [37].
consequence of paraplegia.22 Secondly, the Judge found that Judge Henare was entitled to refer in support to the opinion of Dr Pai and his statistical analysis.23 Thirdly, the Judge found that Judge Henare did not make a mistake of fact in finding that Ms Chalmers’ chance of an injury did not occasion a measure of surprise because this is a matter of judgment for the decision-maker and Judge Henare was entitled to make the finding she did on the available evidence.24
[21] Judge Spiller accordingly held that Ms Chalmers has not established sufficient grounds, as a matter of law, to sustain her application for leave to appeal. Even if the qualifying criteria had been made out, the Judge would not have exercised discretion to grant leave because he was not satisfied as to the wider importance of any contended point of law.25
Applicant’s submissions
[22] Mr Hinchcliff raised two grounds upon which leave is sought. First, he submitted that the District Court failed to undertake an appropriate analysis of the meaning of “ordinary consequence” per s 32(1)(c) of the ACC Act and correctly apply the Court of Appeal decision in Accident Compensation Corporation v Ng.26 Secondly, he contended the District Court was in error because the evidence is inconsistent with and contradictory to the decision; the only reasonable conclusion on the evidence contradicts the decision. Accordingly, counsel submitted that the proposed appeal was on an error of law as set out in the authorities summarised in YZ v Accident Compensation Corporation.27
[23] Counsel referred to the Court of Appeal decision Accident Compensation v Ng where “not an ordinary consequence” was defined as something out of the ordinary which occasions a measure of surprise.28 The respondents in that decision, according to Mr Hinchcliff, were granted cover for their injuries noting that the risk for Ms Ng’s
22 At [38].
23 At [39].
24 At [40].
25 At [41].
26 Accident Compensation Corporation v Ng, above n 12.
27 YZ v Accident Compensation Corporation [2020] NZACC 160.
28 Accident Compensation Corporation v Ng above n 12.
injury was between 16 and 22 per cent and for Ms L’s injury ranged between 10 to 38 per cent.
[24] In particular Mr Hinchcliff contended that the District Court judgment is in error for three reasons. First, the Court found the word “unexpected” does not mean surprising. Counsel pointed to the evidence of Dr Yee where he stated the outcome was unexpected. Mr Hinchcliff contended that unexpected means not expected or regarded as likely to happen, which is synonymous with not ordinary per s 32(1) of the Act.
[25] Secondly, the Court was in error, according to Mr Hinchcliff, by finding a 4– 10 per cent chance of post-operative paraplegia does not create an element of surprise, and by doing so it wrongly expanded the definition of s 32(1). Counsel referred to the appellants’ risk of injury in Ng and noted those risks were much higher than Ms Chalmers’. He submitted that the conclusion that the paraplegia was within the ordinary range of consequences appeared to be based on the prior knowledge that paraplegia was the biggest risk of surgery. However, the judgment also recognised, as did the Court of Appeal in Ng, that the focus must be on the outcome that occurred not on the outcome predicted in advance of treatment.29
[26] Additionally in Ng the Court recognised, in Mr Hinchcliff’s submission, that the duration and severity is relevant. Further Mr Hinchcliff suggested that the research quoted in Dr Pai’s opinion indicated that the chance of paraplegia was less than 1.2 per cent. Overall, on this argument counsel submitted that the District Court misapplied s 32 and Ng creating a serious argument that the facts were incorrectly applied to the law, in that a 4–10 per cent risk of an event occurring is not ordinary and creates an element of surprise.
[27] Thirdly, Mr Hinchcliff submitted the Court was in error by finding paraplegia was within the normal range of consequences of the surgical treatment. He referred to the above submissions and added that a key piece of evidence, that of Dr Pai stating the outcome was a “rare surgical complication”, was omitted from the judgment.
29 At [71].
Respondent’s submissions
[28] Ms Becroft submitted that the District Court had applied the correct test consistent with the principal authorities. The District Court exercised its own judgment in concluding the outcome was an ordinary consequence of surgery. The Court acknowledged the stark choices faced by the appellant which were made known to her. While the consequences were devastating, they were not unexpected or surprising, according to the District Court decision.
[29] In addition, Ms Becroft argued that it is difficult to detect any error of law in the District Court judgment, given its careful consideration of the tests and the authorities. Moreover, counsel submitted that the questions raised by the appellant turn on the District Court’s factual findings. More importantly, according to Ms Becroft, an applicant must show an error of law which is a high threshold and requires the Court to conclude that the judgment was so clearly untenable that a correct application of the law required a different answer. Accordingly, the Corporation contended that the judgment was not untenable because the evidence demonstrated that the outcome was not unexpected or surprising but was instead a known and significant risk. That risk was taken in light of the applicant’s serious and deteriorating condition.
[30] According to Ms Becroft, the applicant contended that the District Court made errors in finding that: the word “unexpected” does not mean surprising; a 4 to 10 per cent chance of post-operative paraplegia does not create an element of surprise; and the post-operative paraplegia was within the normal range of consequences of the treatment.
[31] Expanding on the first point, Ms Becroft argued that the applicant had suggested the evidence from Dr Yee describing the outcome of paraplegia as unexpected and devastating meant that the Court could not conclude that paraplegia was an ordinary consequence of the surgery. In response she highlighted the following points made by the District Court.30 First, counsel for the applicant had overstated the position and that the outcome was not surprising. Dr Yee had told the applicant that
30 Chalmers v Accident Compensation Corporation, above n 1, at [72], [78] and [79].
there was a high risk of paraplegia, so his statements need to be read within that context along with his clinical reporting, having regard to the applicant’s underlying health. While paraplegia was devastating and not the outcome desired, that was the extent to which it was unexpected – that it was not a desired outcome. The District Court accordingly gave little weight to Mr Yee’s description of the outcome as unexpected in assessing whether the paraplegia occasioned surprise.
[32] Secondly, Ms Noventa, the physiotherapist, used comparable language to Dr Yee. Even so, reference to the Court of Appeal discussion in Ng in her report was incomplete with no reference being made to an ordinary consequence being within the normal range of outcomes or the requirement that the applicant’s underlying health be considered. In addition, the analogy made by Ms Noventa to car accidents, according to the District Court, demonstrated she did not properly understand the test for ordinary consequence.
[33] Counsel contended that all of the evidence needs to be considered and ultimately the question of whether an outcome is surprising is a determined on the facts. Counsel argued that Judge Henare carefully explained the elements relevant to her decision emphasising the stark choices the applicant faced; the advice given to her regarding risks and the significant risk of paraplegia; the applicant’s own evidence that she understood her position pre-surgery and the risks associated with it; and the fact that the surgeons were not surprised by the post-surgery outcome. Accordingly, Ms Becroft argued that the District Court’s assessment of the evidence does not amount to any error of law. Judge Henare correctly applied the law to the facts reaching a conclusion that was available.
[34] On the issue of statistics, counsel submitted that the District Court concluded these were relevant considerations, alongside the numerous other relevant factors set out at [87] of the judgment. Counsel contended that what the applicant proposes is precisely what the Court of Appeal in Ng warned against. Rather than relying overly on statistics alone as to ordinary consequence, the District Court took a more nuanced approach.
[35] Ms Becroft submitted that the applicant’s suggestion the District Court ignored Dr Pai’s description of paraplegia following surgery as a “rare” surgical complication takes that reference out of context. Dr Pai’s statement does not negate a finding of an ordinary consequence since his views cannot be minimised to a single sentence. It is one part of the evidential puzzle, according to counsel. Contrary to the applicant’s assertions, Judge Henare carefully considered Dr Pai’s reports along with the available evidence to reach the conclusion that the outcome was an ordinary consequence. Ms Becroft contended that this conclusion was available because:
(a)the surgery was high risk and offered in light of the applicant’s rapidly diminishing mobility;
(b)the applicant was told of and understood the risks of surgery including the high risk of paraplegia;
(c)paraplegia was unexpected but that does not mean the outcome was not an ordinary consequence;
(d)while the outcome was clearly devastating, no one was surprised by it, including the applicant.
[36] In summary, Ms Becroft submitted that the applicant has not made out a seriously arguable question of law. The District Court’s approach was consistent with that of the Court of Appeal in Ng. In short, counsel argued that the applicant has not established that the District Court decision was so clearly untenable that a proper application of law required a different answer. Accordingly, Ms Becroft submitted that the application for leave should be declined.
Legal principles and framework
[37]Section 162 of the ACC Act provides:
162 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.
(2)The leave of the District Court must be sought within 21 days after the District Court’s decision.
(3)If the District Court refuses to grant leave, the High Court may grant special leave to appeal.
(4)The special leave of the High Court must be sought within 21 days after the District Court refused leave.
(5)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.
[38] An appeal may be made to the High Court only on a question of law. The Court will not grant leave for appeal on the basis of an error of fact “dressed up” as an error of law.31 However, a mixed question of law and fact is matter of law.32 Additionally, the decision-maker’s treatment of facts may amount to an error of law where there is no evidence to support the decision, the evidence is inconsistent with and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the conclusion.33 Whether a statutory provision has been correctly interpreted and applied to the facts is a question of law.34
[39] The point of law must be capable of bona fide and serious argument.35 Leave is not to be granted as a matter of course.36 On second appeal the appeal court’s function is not to generally correct error but to clarify the law and determine whether it has been properly interpreted and applied by the lower Court.37 The primary focus is on whether the question of law is worthy of consideration.38 In Keyon v Accident Compensation Corporation this Court emphasised that the proposed appeal should be deserving of scarce judicial time, have an issue of principle at stake, and have a reasonable prospect of success.39 Where leave has been refused by the District Court
31 Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at 363.
32 Commissioner of Inland Revenue v Walker [1963] NZLR 339 at 354.
33 Edwards v Bairstow [1995] 3 All ER 48.
34 Commissioner of Inland Revenue v Walker, above n 32, and Edwards v Bairstow, above n 33.
35 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation
HC Wellington AP266/00, 6 July 2001.
36 Gilmore v Accident Compensation Corporation [2016] NZHC 1594
37 Tohu v Accident Compensation Corporation HC Auckland CIV-2003-404-4869, 12 November 2003 at [13].
38 Cullen v Accident Compensation Corporation [2014] NZCA 94 citing Khan v Accident Compensation Corp HC Auckland CIV-2007-485-1632, 14 August 2008 at [5] and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].
39 Kenyon v Accident Compensation Corporation [2002] NZAR 385.
there will normally have to be some extraordinary factor which has not been properly taken into account to justify leave.40
[40] The desirability of finality of litigation is a relevant consideration, as is the overall interest of justice.41
Discussion
[41] I consider that there is a bona fide and serious argument that, with great respect to the learned Judge, she erred in the interpretation of “not an ordinary consequence of the treatment” and its application to paraplegia resulting from spinal surgery of a person with an existing spinal disease. Whether a statutory provision has been properly construed, interpreted and applied to the facts is a question of law. So too is where there is a mixed question of fact and law, which is virtually inevitable in the assessment of cases under s 32 in light of the Court of Appeal’s comments that “s 32(1)(c) requires an analysis that is rooted in the facts of the particular case”.42
[42] Again with respect to the Judge, I consider there is a serious argument that she 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”.43 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.
40 At [15].
41 Cullen v Accident Compensation Corporation, above n 38.
42 McEnteer v Accident Compensation Corporation [2010] NZCA 126, [2010] NZAR 301.
43 At [71].
[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.44 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”.45 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):46
[94] Mr Butler also submitted that, in assessing the ordinary consequence of treatment, the Court was also entitled to have regard to what the consequences of the underlying health condition, if left untreated, would be. However, such an argument loses sight of the fact that what s 32(1)(c) is addressing is the ordinary consequence of the treatment, not the ordinary consequence (or outcome) of the medical condition. If a particular medical condition, left untreated, would likely result in death, but death was an extremely unlikely and unpredictable outcome of the medical treatment, then it is not possible to say that, notwithstanding the extreme rarity of the treatment having caused that outcome, there was no cover because it would eventually have happened anyway if there had been no treatment at all.
[95] There is no doubt that the failure of a treatment to achieve the desired cure does not, of itself, amount to “treatment injury”. That is something different from where the treatment, wholly unexpectedly, produces a similar adverse outcome to that which would ultimately have occurred as a result of the underlying medical condition. Indeed, the words “of itself” in s 32(3) indicate that a failure to achieve the desired result, coupled with other factors, may potentially amount to a treatment injury.
[96] Mr Butler submitted:
To provide cover in situations where a patient has had surgery in order to prevent an outcome, and that outcome occurs anyway, would treat what is a result of a disease as being an injury.
[97] That submission is incorrect. If the treatment has itself unexpectedly produced the adverse outcome, it is the treatment and not the underlying condition that is the proximate cause of the outcome. In assessing whether an outcome is a reasonable consequence of the treatment, the probability that a similar outcome might have occurred anyway is irrelevant.
[44] Although the meaning of “not an ordinary consequence” was considered by the Court of Appeal in Ng, I nonetheless find that the question of law proposed for appeal in this case is worthy of consideration. Court of Appeal recognised in Ng that
44 Chalmers v Accident Compensation Corporation, above n 1, at [19], [20], [23], [69], [72], [86] and [87(b)].
45 At [87(b)].
46 Accident Compensation Corporation v Ng [2018] NZHC 2848.
its interpretation “does not provide the precision or comprehensive guidance that counsel … were seeking”.47 The meaning of s 32 will develop as a matter of law through its application to various types of factual applications, the present being one of them. There are distinctive features that interact with the legal test, and if that interaction were clarified it would provide precedent value. Namely, the fact Ms Chalmers has an underlying condition which would have led to paraplegia if untreated; the knowledge the risk of paraplegia was possible before the surgery; and the fact that the paraplegia is a permanent and very severe consequence. There is thus an issue of principle at stake.
[45] For completeness I do not accept Mr Hinchcliff’s submission that the claimants in Ng, Ms Ng and L, received cover from the Court of Appeal with statistical risk of adverse consequence from treatment being much higher than that of Ms Chalmers. The Court of Appeal did not grant cover to the claimants. Their claims were remitted to the District Court for reconsideration. Counsel did not provide me with the decision(s) on the reconsidered claims and I do not know the outcome.
Decision
[46] Leave to appeal is granted on the approved question: Did the District Court fail to correctly apply s 32(1)(c) of the Accident Compensation Act 2001?
Harvey J
47 Accident Compensation Corporation v Ng, above n 12 at [72].
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