Dela Rosa v Accident Compensation Corporation
[2019] NZHC 2657
•17 October 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-404
[2019] NZHC 2657
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an application for special leave to appeal under s 162(3) of the Act
BETWEEN
JOANNA DELA ROSA
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 16 October 2019 Appearances:
B J Peck and E M Bransgrove for the Applicant
E J Rushbrook and N J Fenton for the Respondent
Judgment:
17 October 2019
JUDGMENT OF DOOGUE J
(Special leave to appeal)
Introduction
[1] Jia Dela Rosa was delivered by emergency caesarean section at 3:24 am on 20 August 2013. She is the first-born child of Joanna Dela Rosa, the applicant in these proceedings.
[2] Due to various concerns held by medical professionals at National Women’s Health Hospital (Hospital), Mrs Dela Rosa was administered with prostaglandin gel in order to induce her labour. During the subsequent birthing process, Jia suffered prolonged bradycardia (a slower-than-expected heart rate) which resulted in Hypoxic-
DELA ROSA v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2657 [17 October 2019]
Ischemic Encephalopathy (HIE), injury to the brain due to a reduced supply of blood and oxygen. Jia’s injury has gone on to manifest as cerebral palsy and she will require life-long care.
[3] This is an application for special leave1 to appeal from a decision of Judge J H Walker, allowing an appeal by the Accident Compensation Corporation (the Corporation) resulting in cover under the Accident Compensation Act 2001 (the Act) being declined for Jia’s injury.2
[4] The issue before the District Court was whether Jia’s HIE was covered by the Act’s treatment injury regime as a personal injury caused either by:
(a)the giving of treatment (being the administration of the prostaglandin gel); or
(b)a failure to provide treatment (being a failure to either deliver Jia on an earlier date or at an earlier time on the same date).
[5] Leave to appeal was declined by Judge G M Harrison on 4 July 2019 on the basis the proposed appeal advanced no question of law warranting consideration by this Court.3
[6] Special leave to appeal is now sought on the following questions of law (the Leave Questions):
(a)Was the law in respect of causation under s 33(1)(a) of the Act correctly applied?
(b)Was the law in respect of causation under s 33(1)(d) of the Act correctly applied?
1 Accident Compensation Act 2001, s 162(3).
2 Dela Rosa v Accident Compensation Corporation [2018] NZACC 195 [Substantive Decision].
3 Dela Rosa v Accident Compensation Corporation [2019] NZACC 73 [Leave Decision].
(c)Did Judge Walker err in failing to give adequate reasons for preferring the evidence of a particular medical expert over Mrs Dela Rosa’s evidence?
[7]For the reasons that follow, special leave to appeal is not granted.
Factual background
[8] The background to these proceedings was set out by Judge Walker in her decision of 19 December 2018.4 However, the parties have filed an agreed chronology for the purposes of these proceedings, which I set out below.
[9] Mrs Dela Rosa is of Filipino ethnicity and was 26 years old when Jia was born. On the Auckland District Health Board booking form/antenatal record (ADHB form), Mrs Dela Rosa’s height was recorded as 153cm and her weight as 74kg (which equated to a body-mass index (BMI) of 31.6). However, on the customised antenatal growth chart used by the Hospital, Mrs Dela Rosa’s height and weight were recorded as 157cm and 64kg (equating to a BMI of 25.96) respectively.
[10] Mrs Dela Rosa's estimated delivery date (EDD) was recorded on the ADHB form as 6 August 2013 based on her regular menstrual cycle and her last menstrual period, of which she was sure.
[11] On 20 March 2013, Mrs Dela Rosa underwent an ultrasound scan which reported gestational growth consistent with an EDD of 6 August 2013. Liquor volume (the volume of amniotic fluid present) was also normal. A follow up ultrasound scan was performed on 8 April 2013, which confirmed an EDD of 6 August 2013 based on foetal anatomy.
[12] Despite this, an “agreed EDD” of 10 August 2013 was subsequently recorded on the ADHB form.
4 Substantive Decision, above n 2, at [5]–[35].
[13] On 5 August 2013, a routine growth scan reported a low liquor volume of 2cm in depth. Normal interval growth was recorded and the Biophysical Profile Score (BPP) was 8/8. As a result of this scan, a referral was sent that same day to the Antenatal Clinic at the Women's Assessment Unit of the Hospital for consultant review. It was requested that Mrs Dela Rosa be reviewed in respect of her reduced liquor volume. Increased weight gain was also noted.
[14] On 6 August 2013, a Dr Wise reviewed the referral and determined that no assessment was necessary. She was “happy” for Mrs Dela Rosa to be reviewed at full term. An appointment was arranged for the next available date, which was 13 August 2013. Two days later, on 8 August 2013, Mrs Dela Rosa's weight was recorded as 86.5kg.
[15] On 13 August 2013 (now at 40 weeks and three days), Mrs Dela Rosa was seen by a Dr Walker at the Day Assessment Unit (DAU) of the Hospital. Based on a clinical examination, Dr Walker recorded clinically adequate liquor volumes and good foetal growth. A cardiotocograph (CTG) was performed and considered normal. Dr Walker noted there were no induction booking vacancies until 20 August 2013. He therefore arranged for Mrs Dela Rosa to be seen at the DAU on 16 August 2013 for a formal scan and clinical review.
[16] On 16 August 2013 (at 40 weeks and six days), Mrs Dela Rosa was seen at the DAU by a Dr Baird who found no reason for induction. A CTG and an ultrasound scan were performed. The CTG was normal. The ultrasound scan recorded an active foetus, a BPP of 8/8, a normal umbilical artery Doppler (a measure of foetal well- being) and two measurable pockets of liquor measuring 2.3cm and 1.9cm respectively. No growth measurements were taken of the foetus.
[17] On 19 August 2013 (at 41 weeks and two days), an assessment of Mrs Dela Rosa was carried out by a Dr Haddad at the DAU. Dr Haddad recorded there were no measurable pockets of liquor and therefore her BPP fell to 6/8. Induction was booked for that evening.
[18] The following sequence of events then occurred, beginning on the evening of 19 August 2013:
(a)At 8:30 pm, Mrs Dela Rosa was admitted for induction.
(b)At 9:15 pm, CTG recording commenced. A vaginal examination showed that Mrs Dela Rosa’s cervix was “unfavourable” with a Bishop's score of two (out of 10). As a result of the Bishop's score, 2 mg of prostaglandin gel was administered vaginally with Mrs Dela Rosa's consent. Prostaglandin gel is used to induce labour.
(c)At 10:15 pm, a CTG conducted after the administration of the prostaglandin gel was recorded by the attending midwife as normal and was continued.
(d)A CTG recorded at 11:50 pm showed periods of low variability (referring to the variation of foetal heart rate from one beat to the next).
(e)At 12:55 am on 20 August 2019, a note was made that Mrs Dela Rosa felt foetal movements but that they were reduced in number. She was experiencing cramping pains, but no tightening was palpable.
(f)At 1:00 am, the CTG was recommenced.
(g)At 1:40 am, the registrar was asked to review the CTG due to the reduced variability.
(h)The registrar reviewed Mrs Dela Rosa at 1:45 am. An intravenous line was set up and intravenous fluids were administered to Mrs Dela Rosa.
(i)At 2:20 am, a small amount of moderate meconium stained liquor was noted on Mrs Dela Rosa’s gown. The CTG continued. Mrs Dela Rosa subsequently felt a small “pop” and a trickle. It was noted she suffered a spontaneous rupture of membranes (SROM).
(j)At 2:40 am, a “pink spot on pad” and further trickling were noted. Mrs Dela Rosa also felt some tightening when palpitated. The CTG continued.
(k)At 3:01 am, the foetal heart rate dropped to less than 60 beats per minute within three minutes and failed to recover.
(l)The registrar was called at 3:10 am and arrived in the room at 3:12 am.
(m)Mrs Dela Rosa was transferred to theatre at 3:18 am.
(n)Jia was delivered by emergency caesarean section at 3:24 am. There was no evidence of abruption during the caesarean section and no comment was noted in respect of the position of the umbilical cord. However, thick meconium was present.
[19] Jia was delivered in very poor condition with an “Apgar score”5 of one (out of five) at one minute, and zero at five minutes. Jia required active resuscitation, only regaining a pulse at 13 minutes of age and taking her first gasp at 17 minutes of age. She was treated with head cooling for the HIE at 1.5 hours of age, which continued for 72 hours.
[20] A placental pathology performed later in the day on 20 August 2013 recorded that the placenta contained a large infarct (tissue death due to inadequate blood supply) and was below the third percentile in weight. The umbilical cord was noted to be hyper-coiled with a spiral approximately every 10mm.
[21] Magnetic resonance imaging (MRI) scans at two weeks of age showed evidence of moderate HIE.
5 Apgar is a test performed on a baby at one and five minutes after birth. The one-minute score determines how well the baby tolerated the birthing process, while the five-minute score indicates how well the baby is doing outside the mother's womb.
The claim
[22] On 13 September 2013, a representative of the Hospital lodged, on Jia’s behalf, a treatment injury claim with the Corporation.
[23] The Corporation declined Jia’s claim on 14 January 2014. On review, the Corporation’s decision was quashed and substituted with a decision that Jia’s injury amounted to a treatment injury for the purposes of s 32 the Act.
[24]The Corporation appealed the reviewer’s decision.
District Court substantive decision
[25] Judge Walker outlined in extensive detail the contents of reports prepared by six medical experts, three of which were obtained prior to, and three following, the Corporation’s decision to decline cover for Jia’s injury.6
[26] The reports obtained prior to the Corporation’s decision to decline cover for Jia’s injury were reviewed in the following order:
(a)the Corporation’s Treatment Injury Claim form, dated 25 September 2013 and filled out by Eliza Cloete, Occupational Neonatologist Newborn Services, which outlined the bare facts of the injury and the events leading up to it;
(b)the report of Dr Suzanne Davis, a Paediatric Neurologist employed as a Senior Medical Officer at the ADHB, dated 30 December 2013, in which she provided her opinion in respect of the risk of the injury suffered by Jia occurring;
(c)the first report of Dr Digby Ngan Kee, Obstetrician, Gynaecologist and Endoscopic Surgeon, dated 8 December 2013, in which he provided his opinion on the adequacy of the treatment provided to Mrs Dela Rosa and whether alternative treatments were available; and
6 Substantive Decision, above n 2, at [54]–[121].
(d)the second report of Dr Ngan Kee, dated 15 January 2014, in which he answered further questions in respect of the adequacy of the treatment provided to Mrs Dela Rosa.
[27] The reports obtained following the Corporation’s decision to decline cover for Jia’s injury were reviewed in the following order:
(a)the first report of Associate Professor Jenny Westgate, Honorary Associate Professor in Obstetrics and Gynaecology at the University of Auckland, dated 28 April 2016;
(b)the report of Professor Peter Stone, Professor of Maternal Fetal Medicine at the University of Auckland, dated 22 November 2016, with an addendum, dated 1 February 2017;
(c)the second report of Associate Professor Westgate, dated 28 April 2017, answering specific questions put to her by counsel including questions relating to Professor’s Stone’s opinion as provided in his report;
(d)the report of Dr Tony Baird, a doctor at Auckland Urogynaecology, dated 20 September 2017 with an addendum, dated 5 October 2017, in which he provided his opinion on the cause of Jia’s sudden bradycardia and responded to aspects of Professor Stone’s and Associate Professor Westgate’s reports;
(e)the third report of Associate Professor Westgate, dated 18 October 2017, in which she primarily responded to Dr Baird’s report; and
(f)an email response from Dr Baird, dated 27 October 2017, briefly responding to Associate Professor Westgate’s third report.
[28] Throughout this extensive review of the medical reports and opinions, the Judge highlighted points of conflict between the medical experts, albeit not in an overly discursive way. For example, the Judge expressly quoted excerpts from Professor Stone’s report demonstrating an opposing view to those of Dr Ngan Kee and
Associate Professor Westgate in respect of the ability of the medical experts who delivered Jia to have intervened sooner.7 Similarly, the Judge outlined in some detail Associate Professor Westgate’s two follow-up reports which effectively responded to the reports of Professor Stone8 and Dr Baird,9 both of whom commented on Associate Professor Westgate’s views on the likely impact of the prostaglandin gel on the labouring process and whether the medical experts at the time ought to have delivered Jia sooner.
[29]Overall, the Judge preferred the evidence of Associate Professor Westgate.10
[30] Accordingly, in concluding that the administration of prostaglandin gel did not cause (as that term is understood in s 32(1)(b) of the Act) Jia’s injury, the Judge made the following findings:
(a)it was necessary to administer prostaglandin gel in order to induce the natural labour process;11
(b)the prostaglandin gel did not cause uterine hyperstimulation;12
(c)the labour process caused Jia’s injury (specifically, the onset of contractions and SROM);13 and
(d)it is likely Jia’s injury would have occurred had there been a spontaneous onset of labour.14
[31] Further, in concluding that Jia’s injury did not result from a failure to provide treatment (in terms of s 33(1)(d) of the Act), the Judge made the following findings:
7 At [71]–[72].
8 At [74]–[94].
9 At [109]–[120].
10 At [243].
11 At [221]–[222].
12 At [223].
13 At [223]–[224].
14 At [218] and [234].
(a)there was “no reliable evidence” of any indications that Jia should have been delivered on an earlier date; and15
(b)there was no evidence that indicated, in respect of events that proceeded post-induction on 19 August 2013, that any alternative procedure should have occurred.16
[32]Given the medical evidence, the Judge concluded:
[235] I accept the submissions of Counsel for the appellant that under s 33(2)(g) of the Act, an injury can only be a treatment injury, if it is demonstrated on the balance of probabilities it was not caused wholly or substantially by her underlying condition.
[236] The fact that the umbilical cord was hypercoiled rendered her susceptible to sudden cord occlusion during labour and it is noted in the Paediatric Pathologist's report it is often associated with adverse outcomes.
District Court leave decision
[33] Mrs Dela Rosa sought leave to appeal to this Court on eight questions of law, which were set out under the same Leave Questions that have been advanced before me. That application was declined by Judge Harrison on 4 July 2019, who determined that the application did not in fact raise any question of law.17
[34]In particular, the Judge found the following:
(a)Whether the administration of a drug causes an injury is a question of fact. Judge Walker relied on the evidence of Associate Professor Westgate to conclude that the administration of the prostaglandin gel did not cause Jia’s injury.18
(a)Whether there is a failure to provide treatment or to provide treatment in a timely manner is also a question of fact. Again, after assessing the
15 At [182].
16 At [201].
17 Leave Decision, above n 3, at [9].
18 At [15].
medical evidence, Judge Walker determined that there was no failure to provide treatment.19
(b)Judge Walker took great care to give reasons for preferring Associate Professor Westgate's evidence. Accordingly, no question of law arose in that regard.20
The proposed questions of law
[35] As already mentioned, Mrs Dela Rosa sought leave to appeal in the District Court on eight questions of law, which were succinctly summarised as the three Leave Questions. Both the Leave Questions and the sub-questions are now advanced before this Court. For ease of reference, the Leave Questions and sub-questions are the following:
(a)Was the law in respect of causation under s 33(1)(a) of the Act correctly applied?
(i)Was Judge Walker’s decision consistent with the expert evidence available?
(ii)Did Judge Walker err by referring to the absence of alternatives for progressing labour?
(iii)Did Judge Walker err by finding Jia’s injury would have occurred regardless of the method of delivery?
(b)Was the law in respect of causation under s 33(1)(d) of the Act correctly applied?
(i)Did Judge Walker apply the wrong standard to the treatment failure analysis?
19 At [18].
20 At [20].
(ii)Did Judge Walker err by relying on evidence that made reference to resource constraints?
(iii)Did Judge Walker err by relying on evidence that failed to look at the totality of the treatment?
(iv)Did Judge Walker err by failing to rely on evidence only available with the benefit of hindsight?
(c)Did Judge Walker err in failing to give adequate reasons for preferring the evidence of a particular medical expert over the others?
[36] Put simply, Ms Rushbrook, for the Corporation, submits that none of the questions of law proposed by Mrs Dela Rosa are seriously arguable. Further, she submits that the proposed questions are either answered by settled legal principles or are issues of fact dressed up as issues of law.
[37] As will become clear, it is not necessary to address each of the sub-questions in depth. Therefore, my analysis will primarily focus on the Leave Questions.
Principles applicable to applications for special leave
[38] The scope of applications for special leave to appeal brought under s 162(3) of the Act is confined to questions of law. The proper test for applications of this nature was set out by Dobson J in Ellwood v Accident Compensation Corporation:21
An applicant for special leave is required to establish that there is a question of law that is capable of bona fide and serious argument, and that it arises in a case which involves some public or private interest of sufficient importance to outweigh the delay and cost of a further appeal. It will usually be necessary for an applicant to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there are some reasonable prospects of success.
21 Ellwood v Accident Compensation Corporation [2012] NZHC 2887 at [10].
[39] Broken down, Ellwood establishes five criteria for applications for special leave to appeal:22
(a)the question posed is one of law;
(b)it is a question actually arising in the proceeding (as opposed to being hypothetical or abstract);
(c)it is capable of bona fide and serious argument;
(d)it involves some interest, public or private, of sufficient importance to outweigh the delay and cost of a further appeal; and
(e)there are some reasonable prospects of success.
[40]In addition, the interests of justice should require that leave be granted.23
[41] The present case invokes (a) and (c) above. In Gilmore v Accident Compensation Corporation, Dunningham J provided the following guidance on how to approach an application of this nature:24
[28] Section 162 makes it clear that an appeal is only allowed on a question of law. A question of law does not arise where the 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. Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. However, issues of fact should not be dressed up as questions of law. That said, a mixed question of law and fact is a matter of law.
22 See generally Murray v Accident Compensation Corporation [2013] NZHC 2967 at [6] where Kós J (as he then was) outlined the first four criteria, though still noted that there must be some reasonable prospect of success.
23 Accident Compensation Corporation v Ng [2019] NZHC 207 at [8]; Sinclair v Accident Compensation Corporation [2012] NZHC 2564 at [7]; Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [27](c); Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).
24 Gilmore v Accident Compensation Corporation, above n 23.
[42] Further, in determining whether special leave to appeal should be granted, it is not my role to determine the substantive issues upon which Mrs Dela Rosa wishes to appeal.25 Rather, I must focus on whether the issues raised are, first, questions of law, and second, cross the threshold of being capable of bona fide and serious argument.
Statutory framework
[43] The combination of s 20(1) and 20(2)(b) of the Act provides cover for physical injury that is “treatment injury”. That term is defined in s 32(1) as follows:
32Treatment injury
(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.
[44]Further, s 32(2) and (3) provide:
(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:
25 Accident Compensation Corporation v Hawke [2013] NZHC 2982 at [24]; Adlam v Accident Compensation Corporation [2016] NZHC 1967 at [17].
(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.
[45]Section 33(1) relevantly defines “treatment” as follows:
33Treatment
(1)For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a)the giving of treatment:
(b)a diagnosis of a person’s medical condition:
(c)a decision on the treatment to be provided (including a decision not to provide treatment):
(d)a failure to provide treatment, or to provide treatment in a timely manner:
...
[46] The first two Leave Questions relate to the application of s 33(1)(a) and (d), and in particular, whether they caused Jia’s injury as that phrase is understood in s 32(1)(b).
Analysis
[47] I begin by addressing the second and third Leave Questions as they can be dealt with briefly.
Treatment failure
[48] In my view, the proposed question of appeal focusing on s 33(1)(d) of the Act is predominantly one of fact.
[49] In essence, Ms Peck, for Mrs Dela Rosa, seeks to persuade this Court that Judge Walker ought not to have favoured Associate Professor Westgate’s evidence that each of Mrs Dela Rosa’s clinical encounters followed the appropriate guidelines and that the treatment decisions were acceptable. Indeed, other than the first sub-question under this Leave Question, the remainder focus on matters of weight in evaluating the
preferred evidence. Put simply, the Judge was within her right to favour Associate Professor Westgate’s evidence and her decision to do so raises no question of law.
[50] I say that this Leave Question is “predominantly one of fact” because the first sub-question does raise a question of law, that is, the appropriate standard to be applied in respect of s 33(1)(d). Ms Peck submits that the Judge erred by applying a negligence standard to the issue of causation in determining whether there was a failure to provide treatment, or to provide treatment in a timely manner.
[51] The Court of Appeal considered the meaning of “failure” in Adlam v Accident Compensation Corporation, stating:26
[61] In the result, we consider the relevant provisions properly construed mean that in order for there to be treatment injury as a result of a failure to provide treatment it is necessary to show that an alternative treatment that would have prevented the injury suffered could and should have been given having regard to the clinical indications at the time of the alleged failure.
[52] The Court went on to provide guidance on when an alternative treatment “should” have been given, stating:27
The injury said to be a treatment injury must be the consequence of a departure from appropriate treatment choices and treatment actions... A failure in the sense of omitting to take a step required by an objective standard is necessary.
[53]Judge Walker applied this standard, stating:
[229] However, the High Court decision and the Court of Appeal decision in Adlam change the landscape and now form an integral part of reaching any conclusion as to failure to treat, and requires that a claimant (in this case the respondent) must show alternative treatment would have prevented the injury suffered and could and should have been given.
[230] However, the respondent's position falls well short of this. (Original emphasis)
[54] Because the Judge applied the correct test, no seriously arguable question of law arises.
26 Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102.
27 At [62].
Reasons for preferring expert evidence
[55] Like the preceding Leave Question, in my view, this proposed question of appeal, which focuses on Judge Walker’s apparent failure to provide reasons for preferring the evidence of Associate Professor Westgate, raises no seriously arguable question of law.
[56] Ms Peck submits that it is seriously arguable whether the Judge turned her mind objectively to all the relevant evidence and came to an independent view. She submits further that given the complex body of evidence and the potential impact on Jia and her family if this Court were to decline the application for special leave to appeal, the Judge’s reasoning was insufficient. I disagree. On the contrary, I agree with Judge Harrison’s observation that Judge Walker “took great care to give reasons for preferring Associate Professor Westgate's evidence.”28 This is evident from the lengthy analysis which followed the setting out of the medical reports and opinions.
[57] Further, I note that Judge Walker stated that she preferred the evidence of Associate Professor Westgate because of her “expertise in this area”,29 her considerable qualifications,30 the detail and research she provided to support her opinions,31 her thorough analysis of each question put to her,32 her “reasoned and persuasive” reports,33 and her “careful responses” to the evidence of other experts.34
[58] In any case, I do not consider that this Leave Question is one of law. It is more appropriately characterised as one of fact.
Treatment and causation
[59]Finally, I turn to the first Leave Question which requires greater discussion.
28 Leave Decision, above n 3, at [20].
29 Substantive Decision, above n 2, at [240].
30 At [63].
31 At [243].
32 At [179] and [199].
33 At [178].
34 At [180]–[181].
[60] The test for causation under the Accident Insurance Act 1998 — the precursor to the Act — was outlined by the Court of Appeal in Accident Compensation Corporation v Ambros.35 In W v Accident Compensation Corporation, Collins J held that this test remains relevant to the present accident compensation scheme, stating:36
[55] The passages from Ambros quoted in [54] can be reduced to the following three-step guide to causation under the scheme:
(1)The first step is to determine whether there was causation in fact, which is “usually assessed on the basis of a ‘but for’ test”.
(2)The second step is to determine whether there is causation in law, which involves taking “into account policy issues arising in relation to the accident compensation scheme generally and the particular manifestation of that regime at issue in the case”.
(3)The third step, which the Court said, “will often merge into the second”, involves an inquiry into the “proximity (remoteness) between the cause and the damage”.
[61] In applying the “but for” test, it is necessary to consider the counterfactual, that is, what would have occurred had the treatment not been administered. The consequences of the treatment and whether or not it can be said to have caused the injury under the “but for” test will depend on the counterfactual.
[62] It is possible to consider two counterfactuals in these proceedings. These depend on which particular stage of the medical decision-making process is taken as being the operative one for the purposes of causation. They are as follows:
(a)The position Mrs Dela Rosa and Jia would have been in had the medical professionals opted to induce Mrs Dela Rosa using an alternative method to the prostaglandin gel (First Counterfactual).
(b)The position Mrs Dela Rosa and Jia would have been in had the medical professionals decided not to induce Mrs Dela Rosa (Second Counterfactual).
35 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340 at [24]– [25].
36 W v Accident Compensation Corporation [2018] NZHC 937, [2018] NZAR 829.
[63] The different stages of the medical process are reflected in the scheme of s 33(1) of the Act. Relevantly, s 33(1)(a) refers to treatments actually administered; s 33(1)(c) deals with decisions to treat (or not to treat) arising from a range of possible treatment options; and s 33(1)(d) refers to more general failures to treat, or failures to give the treatment that was ultimately chosen in a timely manner.
[64] Two different stages of the medical process — and therefore two different subsections under s 33(1) — are also reflected in the counterfactuals. The First Counterfactual relates to the actual treatment given, that is, once a decision to treat has already been made. Accordingly, it corresponds to s 33(1)(a). The Second Counterfactual relates to the point in time when the decision to treat (or not treat) Mrs Dela Rosa was made. That is, the point in time the medical professionals decided to induce labour rather than wait for labour to progress naturally or, alternatively, perform a caesarean section. Accordingly, it corresponds to s 33(1)(c) or arguably s 33(1)(d), the latter of which was rejected by Judge Walker.
[65] This analysis is relevant given Judge Walker’s determination, based on Associate Professor Westgate’s evidence, that Jia’s injury was not caused by the administration of the prostaglandin gel. Associate Professor Westgate stated, and Judge Walker accepted, the following:
After considering all of the above, it is my conclusion that the most likely cause of the sudden bradycardia was in-utero cord occlusion secondary to both rupture of the membranes with the loss of the small amount of liquor present and the mild contractions caused by the Prostaglandin Gel. I suspect the cord became compressed between parts of the fetal body or between the body and uterine wall. The hyper-coiled nature of the cord may have made the cord more susceptible to compression. Unfortunately, due to low liquor volumes and on- going (albeit mild) contractions the cord remained compressed which resulted in prolonged bradycardia. The cord compression would have been released once the uterus was opened at the time of CS and would not have been obvious to the doctor who delivered the baby.
Administration of the prostaglandin gel has contributed to these events by virtue of the fact that it stimulated uterine activity which resulted in spontaneous rupture of the membranes. It is likely that the same events would have happened with spontaneous onset of labour.
[66] In Associate Professor Westgate’s opinion, the cause of Jia’s injury was the coiling of the umbilical cord caused by the cord being crushed between the foetus and the uterine wall following the inducement of labour. Putting aside questions on the
appropriateness of the decision, in Associate Professor Westgate’s opinion, Jia’s injury was caused by the decision to induce Mrs Dela Rosa rather than the method by which inducement went ahead once the decision to induce was made (that is, by administering the prostaglandin gel).
[67] Associate Professor Westgate’s opinion therefore invokes s 33(1)(c) of the Act (as opposed to s 33(1)(a)), which was not argued before Judge Walker. Throughout these proceedings both in the District Court and in this Court, counsel for Mrs Dela Rosa have argued that administration of the prostaglandin gel caused the prolonged bradycardia for the purposes of s 32(1)(b) of the Act. The focus has therefore been on s 33(1)(a).
[68] However, the Judge cannot be faulted for her application of the “but for” test. Her causation analysis, focusing on s 33(1)(a), was appropriately narrow and applied the First Counterfactual at [62] above. It properly respected the separate focuses of s 33(1)(a), (c) and (d). As such, Judge Walker was correct to limit the causation test to the method by which labour was progressed (the prostaglandin gel as opposed to, for example, a catheter balloon) given the decision to induce labour had already been taken.
[69] In any event, had the scope of Judge Walker’s causation test been broader and the Second Counterfactual been considered, there would not have been sufficient evidence to suggest that at the time the decision was made to induce Mrs Dela Rosa’s labour, another option, such as a caesarean section or allowing labour to progress naturally, was necessarily available or more appropriate. As the Court of Appeal explained in Adlam, albeit in respect of s 33(1)(d), when assessing causation, “an alternative treatment must have been...clinically available”.37
[70] Accordingly, in considering s 33(1)(a), the Judge applied the correct causation test and the Leave Question becomes one of fact; that the Judge ought not to have preferred the evidence of Associate Professor Westgate.
37 Adlam v Accident Compensation Corporation, above n 26, at [54]–[55].
Result
[71] For the reasons given, I do not consider that Mrs Dela Rosa’s application satisfies the criteria for special leave under s 162(3) of the Act. The Leave Questions are not seriously arguable and are more appropriately characterised as questions of fact.
[72]The application for special leave to appeal is dismissed.
Doogue J
Solicitors:
John Miller Law, Wellington Russell McVeagh, Wellington
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