Karmarkar v Accident Compensation Corporation - [2019] NZHC 294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001872

[2019] NZHC 294

IN THE MATTER OF
the Accident Compensation Act 2001 under s 162 substituted by s 4(1) of the Injury Prevention, Rehabilitation and

Compensation Amendment Act 2003

BETWEEN

MADHAV HARI KARMARKAR

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 21 February 2019

Appearances:

M H Karmarkar (Self-represented Plaintiff) in Person D K L Tuiqereqere for the Defendant

Judgment:

28 February 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 28 February 2019 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Medico Law Ltd, Auckland

Copy To: M H Karmarkar (Plaintiff), Auckland

KARMARKAR v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 294 [28 February 2019]

[1] In 2016 Mr Karmarkar lodged a claim with the Accident Compensation Corporation for treatment injury arising out of gallbladder surgery. That claim was declined by the Corporation. Mr Karmarkar’s subsequent appeal of that decision was dismissed,1 as was his application for leave to appeal to this Court.2

[2] Mr Karmarkar now seeks special leave to appeal under s 162 of the Accident Compensation Act 2001 (ACC Act).

[3] The Corporation opposes Mr Karmarkar’s application for leave on the basis that he has not identified an error of law.

What happened?

[4] On 12 April 2016, Mr Karmarkar was admitted to Auckland Hospital with stomach pain. He was discharged on 15 April 2016 following investigations undertaken by the hospital. Mr Karmarkar was told he would need a cholecystectomy, which, in layperson terms, is gallbladder surgery.

[5] Mr Karmarkar was referred to a surgeon, Mr John Dunn, for the surgery. Mr Dunn saw Mr Karmarkar on 19 April 2016 and arranged for an ultrasound the same day. The surgery was scheduled for 21 April 2016.

[6] The surgery went ahead that day. However, in the course of the operation, and after conferring with colleagues, Mr Dunn decided not to proceed with the cholecystectomy due to the acute and chronic inflammation of Mr Karmarkar’s gallbladder. Mr Dunn was unable to clearly identify the cystic duct at the time, and he described Mr Karmarkar’s unique gallbladder anatomy as confusing. Mr Dunn was concerned that Mr Karmarkar might have been suffering from Mirizzi syndrome. In a report to Mr Karmarkar’s doctor, Mr Dunn explained this as a syndrome where the cystic duct is fully effaced and a stone is impacting on the common duct. A cholecystostomy tube was inserted to drain the gallbladder with a view to arranging surgery at a later time.

1 Karmarkar v ACC [2018] NZACC 41.
2 Karmarkar v ACC [2018] NZACC 138.

[7] Due to Mr Karmarkar’s unique gallbladder anatomy, Mr Dunn referred him to Mr Bartlett, a specialist hepatobiliary surgeon. Over the subsequent months, the tube remained inserted, and several investigations were undertaken by the hospital. These included a MR Cholangiopancreatography (MRCP) undertaken on three occasions: 26 April 2016, 15 June 2016,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 294
Decision Date: 28 February 2019

CaseChat Overview and Summary

Madhav Hari Karmarkar appeals the District Court's dismissal of his appeal against the Accident Compensation Corporation's (ACC) decision to decline his claim for treatment injury cover. Karmarkar argues that the District Court's decision contains an error of law. The Corporation opposes the application for leave on the basis that no error of law was made. The High Court must determine if there is an error of law that warrants special leave to appeal. The Court finds that the District Court did not make an error of law in its assessment of the evidence or its approach to the appeal. The application for leave to appeal is dismissed.

The Court noted that Karmarkar's appeal to the District Court was premised on the failure to undertake preoperative investigations which would have revealed that the first operation was not necessary at all. The Judge's identification of the key issues reflected this approach. The Judge concluded that there was no failure by the surgeon to arrange for additional preoperative investigations or assessments, and that those that were undertaken were comprehensive. The Judge found there was no evidence to support the contention that the surgery was unnecessary or could have been avoided. The Court found that the Judge did not err in law in this respect.

The Court also found that the Judge's approach to the appeal did not amount to an error of law. The Judge referred to Karmarkar's contentions regarding the Magnetic Resonance Cholangiopancreatography (MRCP) and the extensive medical literature produced by Karmarkar in support of his claim. However, the Judge determined that she was unable to draw any conclusions from that literature in the absence of specialist comment upon it. The Judge found that there was no evidence to support a failure by the surgeon to arrange an MRCP investigation. In the circumstances of the appeal, that was all that was required. The Court found that there was no error of law in the Judge's approach.

Further, the Court found that the Judge did not make any discernible error by relying on the evidence of Professor Windsor. There was no other independent expert evidence before the Court. Although Karmarkar had produced medical literature in support of his claim, he had not engaged a specialist to comment on that literature or to respond to the evidence of the surgeon and Professor Windsor. The Judge was entitled to rely upon the evidence of Professor Windsor in those circumstances.

The Court found that the Judge did not fail to take into account relevant factors. The reports of Mr Bartlett and the radiology report regarding the MRCP were of limited relevance to the appeal. The fact that the Judge did not refer to Karmarkar's unusual gallbladder anatomy in her judgment did not mean she was not aware of it. But, more importantly, this feature was of contextual relevance only. It had no bearing on the determination of the appeal. There could be no error of law in failing to take it into account. The medical literature produced by Karmarkar was referred to by the Judge, but she declined to take it into account because there was no specialist comment upon it. There was no error in that approach.

In summary, the Court found that Karmarkar was unable to meet the statutory threshold for special leave to be granted. The application for leave to appeal must accordingly be dismissed.

Orders