Folkema v Accident Compensation Corporation
[2023] NZHC 1103
•10 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1532
[2023] NZHC 1103
UNDER the High Court Rules 2016 and the Accident Compensation Act 2001 IN THE MATTER
of an intended appeal under s 162 of the Accident Compensation Act 2001
BETWEEN
MATTHEW FOLKEMA
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 23 February 2023 Appearances:
B R Hinchcliff for the Applicant
L D Hawes-Gander and F L Becroft for the Respondent
Judgment:
10 May 2023
JUDGMENT OF HARVEY J
This judgment is delivered by me on 10 May 2023 at 4 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors: ACC and Employment Law, Auckland
Medico Law, Auckland
FOLKEMA v ACCIDENT COMPENSATION CORP [2023] NZHC 1103 [10 May 2023]
Introduction
[1] Matthew Folkema had braces fixed to his upper and lower jaws in Peru in late 2015 and early 2016. In February 2016 he received orthodontic treatment. X-rays taken in November 2017 identified some root resorption of the upper incisors. Further x-rays were taken in June 2019 confirming further upper incisor resorption. Later that month, Mr Folkema’s GP lodged a claim with the Accident Compensation Corporation asserting that the upper incisor root resorption was caused by the orthodontic treatment received in February 2016.
[2] Between November 2019 and April 2021, the Corporation ultimately declined cover after two reviews.
[3] On 10 May 2022, Judge D L Henare dismissed Mr Folkema’s appeal. His subsequent application for leave to appeal was also dismissed on 18 August 2022 by Judge P R Spiller. Mr Folkema now appeals to this Court for special leave.
[4]The issue for determination is whether that application should be granted.
Background
[5] As foreshadowed, Mr Folkema had braces fixed to his upper and lower jaws in Peru in late 2015 to January 2016. Following that, on 13 February 2016, Dr Quick, an orthodontist, provided orthodontic treatment in New Zealand. Root resorption of the upper incisors was identified in x-rays taken in November 2017. Then on 3 December 2017, Dr Quick wrote to Mr Folkema recording that, based on a comparison between the x-rays, his upper right central root length had reduced from 14 to 10 mm. The braces were removed in late 2017/early 2018. X-rays taken in June 2019 confirmed further upper incisor root resorption.
[6] As foreshadowed, on 25 June 2019, Mr Folkema’s GP made a claim to the Corporation claiming that the resorption was caused by Dr Quick’s treatment. On 7 August 2019, Dr Quick confirmed that root resorption “is a very common side effect” of orthodontic treatment. He confirmed that on average 1.5 mm is common and that it is “very rare” to suffer resorption in excess of 4 mm.
[7] The Corporation declined cover on 14 November 2019 claiming that resorption was an ordinary consequence of the treatment. Following that, on 27 July 2020 Mr Lawless, a reviewer for the Corporation, quashed his decision and directed the securing of further evidence as to whether the degree of resorption experienced by Mr Folkema was an ordinary consequence of the treatment.
[8] On 9 November 2020, the Corporation issued a further decision declining cover once again on the basis that Mr Folkema’s experience was an ordinary consequence of treatment. That decision was upheld by Mr Edmondson, another reviewer, on 1 April 2021.
District Court judgment
[9] Judge Henare heard the appeal on 7 March 2022, received further evidence on 7 April and then issued her judgment on 10 May 2022.1
[10] The Judge set out the agreed facts and medical evidence and confirmed the principal issue on the appeal was whether root resorption is an ordinary consequence of the orthodontic treatment Mr Folkema received. She then outlined the parties’ submissions. The thrust of Mr Hinchcliff’s submissions were that although some root resorption is expected from orthodontic treatment, the degree of resorption suffered by Mr Folkema was “very rare” and thus outside the normal range of consequences. The Corporation argued that due to Mr Folkema’s unusual circumstances there was no “normal range for him”, and that it was not possible to determine the amount of resorption which occurred. Even if it was to the extent claimed, the Corporation submitted it would still be within the normal range of resorption for persons receiving orthodontic treatment.
[11] The Judge then referred to s 32 of the Accident Compensation Act 2001 (the Act) and its definition of “treatment injury”, this excluding “an ordinary consequence of the treatment” as set out in Accident Compensation Corporation v Ng.2 The Judge highlighted the Court of Appeal’s approach concerning a move away from statistical
1 Folkema v Accident Compensation Corporation [2022] NZACC 85.
2 Accident Compensation Corporation v Ng and L [2020] NZCA 274; [2022] NZLR 683, at [67]– [72].
frequency to tests that have a degree of flexibility to permit the decision-maker to exercise judgement. This was on the basis, she confirmed, that treatment injury claims demonstrate “an extraordinarily wide variety of circumstances from which these cases arise”. The Judge also stated the relevant factors as set out by the Court of Appeal, namely the nature, duration and severity of the harm; the patient’s susceptibility to the adverse consequence; and medical studies, literature and statistics (with caution).
[12] Judge Henare noted that she needed to first consider the nature, duration and severity of Mr Folkema’s condition. The Judge acknowledged that the evidence was not perfectly clear as to how much root resorption Mr Folkema had suffered and referred to Dr Quick’s 2017 x-rays and the caveat therein. She then considered the reports of Dr Gilbert dated 29 October 2019 and 30 October 2020 which echoed Dr Quick’s challenges in measuring the extent of Mr Folkema’s root resorption and when it occurred. The Judge then held that she did not accept Mr Hinchcliff’s submission of over 4 mm of root resorption but did accept at least some root absorption occurred.
[13] Judge Henare then considered the medical literature referred to by Dr Quick and Dr Gilbert which indicated that root absorption is an unavoidable pathological consequence of orthodontic tooth movement. The Judge also mentioned Dr Quick’s report of 7 August 2019, summarising medical literature, which arrived at similar conclusions. That report also noted that root resorption of greater than 30 per cent is considered severe, duration of treatment may be a risk factor, and root resorption is unpredictable and cannot be prevented with any degree of certainty.
[14] Following that, the Judge considered Mr Folkema’s susceptibility to root resorption in light of the medical literature, again quoting extensively the reports of Dr Quick from 7 August 2019 and of Dr Gilbert from 29 October 2019 and 30 October 2020. Ultimately, she concluded that Mr Folkema had increased susceptibility to root resorption from his treatment setting out five factors, reproduced below for convenience:
(a)Duration of treatment – Mr Folkema underwent a 26 month treatment programme in Dr Quick’s practice, and he had already started orthodontic
treatment before that, when the fixed appliances were placed on his upper and lower teeth in Peru. Dr Quick reported 30 active appointments. Three of the appointments were for oral hygiene with bleeding and inflammation and ten were for emergency breakages. They are not part of the same treatment which commenced in Peru and continued with Dr Quick, there were also unknown periods of treatment with Dr Dearing. Dr Quick considered this to be an extended length of treatment. However, it is the case that treatment for malocclusion started in Peru and continued in New Zealand.
(b)Extensive tooth movement – Mr Folkema presented for treatment with seriously misaligned teeth (severe malocclusion); his upper teeth protruded over his lower teeth (severe overbite – overjet). Given the severity of the condition, substantial tooth movement was required.
(c)Force of bite – Dr Gilbert commented, since Mr Folkema has a very low anterior face height, the force of his bite (occlusal force) is higher than normal and this could lead to root resorption. Similarly, Dr Quick suggested Mr Folkema’s traumatic bite was a factor contributing to his root resorption.
(d)Premolar extractions – three of Mr Folkema’s upper premolars (with evidence of short roots) were extracted.
(e)Susceptibility of incisors – Mr Folkema’s orthodontic treatment focused on his incisors, and his upper incisors appear to have been the most affected by root absorption.
[15] Tellingly, the Judge rejected the respondent’s contention that Mr Folkema was more susceptible because he refused orthognathic surgery. She concluded that if he did complete surgery then less orthodontic treatment would have been necessary. That would have meant less root resorption “may” have occurred, but the failure to obtain treatment did not somehow increase his susceptibility. In addition, the Judge noted Dr Gilbert’s opinion that there was no normal range of root resorption for Mr Folkema since his malocclusion was “most unusual, and unlikely to have been seen sufficiently often for there to be a normal range of outcomes.” The Judge interpreted this to mean
that for someone with the particular susceptibilities of presenting condition and circumstances of Mr Folkema, the ordinary range of outcomes is likely to be more severe than normal.
[16]The Judge concluded:
[73] Taken together, the evidence before me shows it was not possible to determine the degree of root resorption which occurred in this case. Further, there is no suggestion in the available reports that the root resorption which occurred was outside the normal range taking into account the circumstances of treatment and Mr Folkema’s circumstances.
[74] I conclude the evidence shows that Mr Folkema was at greater risk of root resorption. In particular, the following factors are relevant: treatment duration, extensive tooth movement during treatment, Mr Folkema’s bite, three premolar extractions, and susceptibility of incisors. Having regard to all the available evidence, I conclude the root resorption suffered by Mr Folkema was within the normal range of outcomes having regard to his circumstances and the treatment.
[17]She then dismissed the appeal.
District Court judgment on leave
[18] Judge Spiller issued his decision on 18 August 2022.3 He noted that the applicant’s reliance on Accident Compensation Corporation v Ambros was misplaced.4 In that case, the Court of Appeal commented on the challenge in establishing a causal link between medical error and personal injury. Even so, in the present case, the Judge confirmed that it was not in dispute for the purposes of s 32 of the Act that Mr Folkema’s root resorption was caused by orthodontic treatment.
[19] He further noted that Judge Henare found that the ordinary range of consequences for orthodontic treatment included some measure of root resorption and that given Mr Folkema’s increased susceptibility, there was no suggestion that what occurred was outside the normal range.
[20] The Judge concluded that Mr Folkema had failed to establish sufficient grounds as a matter of law to sustain an application for leave to appeal which he then
3 Folkema v Accident Compensation Corporation [2022] NZACC 162.
4 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
dismissed. He also observed that, even if the qualifying criteria had been made out, he would not have exercised the discretion to grant leave “so as to ensure the proper use of scarce judicial resources.” Finally, in dismissing the application, the Judge confirmed that he was not satisfied as to the wider importance of any contended point of law.
Applicant’s submissions
[21] Mr Hinchcliff submitted that the District Court decision is wrong in fact because it failed to correctly undertake an appropriate analysis of the meaning of “ordinary consequence” per s 32(1)(c) of the Act and in light of the Court of Appeal judgment Accident Compensation Corporation v Ng and L.5 Secondly, the evidence is inconsistent with and contradictory to the decision. The only reasonable conclusion on the evidence contradicts the decision.
[22] Mr Hinchcliff submitted the following summary of the District Court decision. The Court concluded that it was not possible to determine the degree of resorption that occurred. There was no suggestion that it was outside the normal range, taking account of the treatment and Mr Folkema’s circumstances. In any event, Mr Folkema was at greater risk of resorption. Relevant factors included treatment duration, extensive tooth movement during treatment, Mr Folkema’s bite, three pre-molar extractions and the susceptibility of his incisors. The Judge concluded that Mr Folkema’s resorption was “an ordinary consequence of the orthodontic treatment”.
[23] Mr Hinchcliff referred to the test for leave under s 162 of the Act, citing YZ v ACC and O’Neill v Accident Compensation Corporation in support.6 Counsel also referred to the Supreme Court’s judgment Bryson v Three Foot Six Ltd for the principles relating to errors of law,7 which were applied in Gilmore v Accident Compensation Corporation.8
5 Accident Compensation Corporation v Ng and L, above n 2.
6 YZ v Accident Compensation Corporation [2020] NZACC 160 at [19]; and O’Neill v Accident Compensation Corporation [2008] NZACC 250 at [24]–[26].
7 Bryson v Three Foot Six Ltd [2005] NZSC 34.
8 Gilmore v Accident Compensation Corporation [2016] NZHC 1594.
[24] Mr Hinchcliff referred to the Court of Appeal decision Accident Compensation Corporation v Ng and L and its definition of “not an ordinary consequence” as something out of the ordinary which occasions a measure of surprise.9 Applying these principles and on the other cases cited, Mr Hinchcliff submitted that the errors in the District Court judgment are the findings that:
(a)it is not possible to determine the amount of root resorption;
(b)the root resorption was not outside the normal range, taking account of the circumstances of treatment;
(c)Mr Folkema was at greater risk of root resorption;
(d)relevant factors included treatment duration, extensive tooth movement.
[25] Regarding the first error, Mr Hinchcliff contended that the evidence was consistent with tooth loosening, and that qualitative assessment should have been enough to find the adverse consequence was not an ordinary consequence. The inability to determine a precise amount of tooth resorption is not evidence the result was an ordinary consequence.
[26] Taking the second and third errors together, Mr Hinchcliff argued that the underlying condition was improperly taken into account, because to do so would mean that any adverse consequence caused by an underlying condition, which all are barring treatment error, would not be ordinary consequences. He submitted this was a misapplication of s 32.
[27] Finally, counsel submitted that the factors taken account of included factors which were known variables at the beginning of treatment, and it was an error of law to take them into account.
9 Accident Compensation Corporation v Ng and L, above n 2.
Respondent’s submissions
[28] Mr Hawes-Gander submitted that the Corporation correctly declined cover because root resorption is an ordinary consequence of orthodontic treatment. The leading authority of Accident Compensation Corporation v Ng was correctly applied.
[29] Counsel contended that the applicant alleged three errors of law and errors in factual findings, but it was not clear how the purported factual error related to the errors of law. Mr Hawes-Gander noted that although the applicant suggested his underlying health condition should not be taken account of, that is what the legal test expressly requires.
[30] Regarding the facts, counsel highlighted that Mr Folkema’s upper left incisor tooth root had reduced between the 2016 and 2017 x-rays by 1 mm from 13 mm to 12 mm (8 per cent). The upper right central incisor tooth root reduced by 4 mm, from 14 mm to 10 mm (28 per cent). However these measurements were “fairly crude” given that there were a number of different variables between the different x-rays. Although the braces were removed in April 2018, resorption continued. In July 2019 Dr Somerville stated resorption was likely due to multiple issues including underlying orthodontic issues and the treatment. Dr Quick agreed with this.
[31] Mr Hawes-Gander also clarified that the fitting of braces outside of New Zealand was not an eligible treatment because it was out of the country. Thus the relevant treatment to consider was the subsequent adjustment and management of the braces in New Zealand.
[32] Turning to the applicant’s argument, Mr Hawes-Gander submitted that it would be difficult to make out an error of law given the careful consideration of the legal test by the District Court. In Mr Hawes-Gander’s submission, the applicant’s argument was that the factual findings were not open to the Court. Counsel submitted that is a high threshold, citing Edwards v Bairstow,10 and one that was not met by the applicant in light of the uncontested expert evidence that root resorption is a very common consequence of orthodontic treatment. Mr Hawes-Gander pointed to further relevant
10 Edwards v Bairstow [1995] 3 All ER 48.
factors that required the factual findings the Judge made, including that the actual degree of root resorption experienced by the applicant could not be determined and that he was at a higher risk of root resorption than normal due to his underlying dental condition.
[33] Mr Hawes-Gander then addressed the specific errors the applicant contended were made. First, that it was not possible to determine the amount of root resorption. Counsel submitted the applicant appeared to argue that the District Court incorrectly relied on this finding to reach an incorrect conclusion that there could not have been “an unusual amount of resorption”. However, Mr Hawes-Gander submitted that the District Court did not reach such a conclusion; it determined that the root resorption suffered by the applicant was within the normal range of outcomes.
[34] Secondly, that there was no suggestion that the root resorption was outside the normal range and the applicant was at great risk of root resorption. Counsel pointed out that the applicant’s argument appeared to be that the District Court erred because it incorrectly relied on the fact there were “known risks” of resorption to reach a conclusion that root resorption could not be a covered treatment injury. However, again, Mr Hawes-Gander contended that this was not the conclusion reached. Rather, the District Court was focused on the statutory test of whether resorption was an ordinary consequence of treatment, and no particular significance was placed on the knowledge of the risk of resorption.
[35] Counsel submitted that the same was the case for the applicant’s third alleged error relating to the Judge’s treatment of the relevant factors. Namely, the applicant appeared to argue the District Court incorrectly relied on the fact that there were known risks which predisposed the applicant to root resorption to reach a conclusion that root resorption could not be a covered treatment injury. Once again Mr Hawes- Gander submitted the District Court did not reach such a conclusion.
[36] Finally, in relation to alleged errors, Mr Hawes-Gander referred to the claim the Judge incorrectly found the applicant’s root resorption was “outside the normal range”. Counsel argued there was no inconsistency between this finding and the expert evidence before the Court.
[37] Counsel then referred to the proposed questions for appeal and argued that the applicant did not establish how these arose from the District Court judgment. They all seemed to stem from the applicant’s suggestion that the District Court concluded that root resorption could not be covered as a treatment injury because there were known risks which predisposed the Applicant to root resorption. However, in Mr Hawes-Gander’s submission, the District Court did not make this alleged finding. To the extent that the applicant may be suggesting that the District Court erred in taking account of the details of his pre-existing dental condition and the nature of the orthodontic treatment he received, counsel submitted that this is not seriously arguable, because section 32 of the Act expressly states that these factors are to be taken into account in considering what is a necessary or ordinary consequence.
Legal principles and framework
[38]Section 162 of the 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.
[39] Appeals to this Court are only permissible on a question of law. Leave will be declined where an error of fact is “dressed up” as an error of law.11 That said, a mixed question of law and fact is matter of law.12 Further, a 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
11 Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at 363.
12 Commissioner of Inland Revenue v Walker [1963] NZLR 339 at 354.
reasonable conclusion on the evidence contradicts the conclusion.13 The correct interpretation of the law and its application to the facts will be a question of law.14
[40] Moreover, the point of law must be capable of bona fide and serious argument,15 given that leave is not granted as a matter of course.16 A second appeal is intended to clarify the law and determine whether it has been properly interpreted and applied by the court below rather than correct its error.17 A principal consideration in this context is whether the question of law is worthy of consideration.18 This Court has underscored that for leave to be granted the proposed appeal should be deserving of scarce judicial time, have an issue of principle at stake, and have a reasonable prospect of success.19 There will usually have to be some extraordinary factor which has not been properly taken account of to justify leave from an earlier District Court refusal.20
[41] Finally, it is well settled that the desirability of finality of litigation is also a relevant consideration, as is the overall interests of justice.21
Discussion
[42] I am not satisfied that the appellant has identified a bona fide argument that there is an error of law in Judge Henare’s decision.
[43] Turning first to the alleged error of fact, overall, the applicant has not established that the errors of fact pleaded in the application for special leave amount to an error of law or are mixed questions of fact and law. The Judge had before her evidence that resorption in excess of 4 mm would be “very rare”. At best,
13 Edwards v Bairstow, above n 10.
14 Commissioner of Inland Revenue v Walker, above n 12, and Edwards v Bairstow, above n 10.
15 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation
HC Wellington AP266/00, 6 July 2001.
16 Gilmore v Accident Compensation Corporation [2016] NZHC 1594
17 Tohu v Accident Compensation Corporation HC Auckland CIV-2003-404-4869, 12 November 2003 at [13].
18 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].
19 Kenyon v Accident Compensation Corporation [2002] NZAR 385.
20 At [15].
21 Cullen v Accident Compensation Corporation, above n 18.
Mr Folkema’s x-rays showed a resorption of 4 mm, and Dr Quick noted that there would likely be inaccuracy due to the methodology. It was therefore open to the Judge on the facts and evidence to find that root resorption was not likely to be greater than 4 mm, “some” root resorption occurred, but it was not possible to say exactly how much. Evidence from several doctors supported the Judge’s finding that it was not possible to accurately identify the extent of loss. Put another way, it was not a conclusion that contradicted the true and only reasonable conclusion on the evidence.22
[44] Similarly, I can see no error of fact amounting to an error of law regarding Mr Folkema’s greater risk of root resorption. That risk was articulated in evidence given by the doctors. A patient’s susceptibility to an adverse outcome is relevant to assessing whether the adverse outcome “occasions a measure of surprise”.23 The applicant has not established there is a bona fide argument that there is an error of law in this context.
[45] Turning to the Judge’s application of the law to the facts, the applicant argued that the Judge improperly found that Mr Folkema’s root resorption was not outside the normal range of consequences, and wrongly took into account the factors of treatment duration, extensive tooth movement during treatment, Mr Folkema’s bite, three premolar extractions, and susceptibility of incisors. However, those factors are plainly relevant to the statutory considerations of “a person’s underlying health condition at the time of treatment” and “the clinical knowledge at the time of treatment”.24
[46] Those factors are also taken directly from Dr Quick’s evidence that “the risk for resorption increases with duration, extraction sites and distance that teeth move”. Dr Quick also stated that Mr Folkema’s “traumatic bite” may have contributed to the root resorption and the degree of root resorption seen after treatment ceased suggested the bite may have contributed to resorption. This opinion was reinforced by Dr Somerville’s evidence that the tooth resorption was likely related to both the orthodontic treatment and Mr Folkema’s underlying skeletal structure. Thus there is
22 Edwards v Bairstow, above n 10.
23 Accident Compensation Corporation v Ng, above n 5.
24 Accident Compensation Act 2001, s 32(1)(c).
no error of law in Judge Henare taking those factors into account when assessing whether the resorption was an ordinary consequence of treatment.
[47] Even if Mr Hinchcliff’s argument is accepted that the numerical measure of tooth resorption does not matter and that the more relevant consideration is whether there is tooth loosening as a result, the Judge did not err in applying s 32, in light of the evidence before her from Dr Quick that “root resorption is a very common side effect of orthodontic treatment” and “in some reports, is present in most individuals undergoing orthodontic treatment” and evidence from Dr Gilbert that “root resorption occurs in almost all orthodontic treatment”. Although resorption of more than 30 per cent was considered by Dr Quick to be “rare”, two considerations are relevant. First, there is the fact that there is no certainty that Mr Folkema’s adverse outcomes were this severe. Secondly, although it may be considered a “rare” consequence for the general population, for someone more susceptible to the adverse outcome and more at risk, the outcome is less likely to “occasion a measure of surprise”.
[48] Mr Hinchcliff argued that there was an unresolved legal question as to the impact pre-existing conditions have on the assessment of “ordinary consequence”. In Chalmers I found that was the case because although Ms Chalmers’ multiple sclerosis did not cause her paraplegia, it was likely she would have become paraplegic without the treatment regardless.25 There was a real question as to whether that should be considered. The situation is different here, where Mr Folkema’s underlying physiology was a contributing factor to the adverse consequence occurring. The evidence tends to suggest it may have made the adverse consequence more likely or more severe or both. That falls within the plain wording of s 32(1)(c). I detect no error in the Judge’s approach and accordingly, I am not satisfied the criteria for special leave to appeal set out in Kenyon v Accident Compensation Corporation are met.26
25 Chalmers v Accident Compensation Corporation [2023] NZHC 925.
26 Kenyon v Accident Compensation Corporation, above n 19.
Decision
[49]Special leave to appeal is declined.
Harvey J
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