Lamb v Attorney General - [2016] NZHC 849

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2014-454-121 [2016] NZHC 849

IN THE MATTER OF
the New Zealand Public Health and

Disability Act 2000

BETWEEN

TANIA JOY LAMB Appellant

AND

THE ATTORNEY GENERAL Respondent

Hearing: 27 April 2016

Appearances:

Appellant appearing in person
S Leslie for the respondent

Judgment:

29 April 2016

JUDGMENT OF MALLON J

Introduction

[1] Ms Lamb applies for an extension of time to review a decision of the Associate Judge Smith on 28 August 2015. That decision struck out Ms Lamb’s claim for exemplary damages arising from treatment she received in hospital in
1977.1 Her application to extend the time is opposed by the respondent on the

ground that her claim is without merit.

Background

[2] Ms Lamb suffered head injuries in a car accident in 1977 when she was 11 years old. She was admitted to Palmerston North Public Hospital where she remained for three and a half months. Six to nine days after her admission she developed paralysis on the left side of her body. She considers that if she had been
given a CAT scan or other neurological assessment, a subdural haematoma may have

1 Lamb v Attorney-General [2015] NZHC 2066, [2015] NZAR 1737.

LAMB v THE ATTORNEY GENERAL [2016] NZHC 849 [29 April 2016]

been detected and a craniotomy performed. In this way she considers that she lost the chance of having treatment to prevent the paralysis from developing. She considers her treatment was outrageously deficient. She wishes to pursue a claim for exemplary damages arising out of this deficiency.

[3] Prior to commencing the present proceedings Ms Lamb sought accident compensation cover for “treatment injury”. Ms Lamb already had cover for personal injury by accident. Because she had that cover, her claim for treatment injury cover would have no compensation consequences. However she wished to have cover for treatment injury for the purpose of holding the hospital to account.2 On 18 February
2009 ACC declined cover for a treatment injury. This decision was upheld on a

review which concluded on 5 January 2010.

[4] Ms Lamb appealed to the District Court on 24 August 2010. The appeal was heard on 5 April 2011 and the decision was delivered on 20 May 2011. The District Court (Judge Ongley) noted that cover for treatment injury was not available on a loss of a chance basis, in contrast with civil liability for personal injury in
jurisdictions where such claims can be made.3 Under the ACC legislation, it had to

be shown on the balance of probabilities that the injury was caused by a treatment injury.4 That depended on expert analysis. While the medical evidence did not appear to fully answer Ms Lamb’s concerns, the medical evidence before the Court was that further diagnosis would not have improved the outcome for Ms Lamb. The claim for cover was moot in that Ms Lamb had cover in any case and it was not purpose of the ACC legislation to hold the…

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.

Continue reading Lamb v Attorney General

Details

AGLC: Lamb v Attorney General [2016] NZHC 849
Case: [2016] NZHC 849
Decision Date: 29 April 2016

CaseChat Overview and Summary

Tania Joy Lamb applied for an extension of time to review a decision of the Associate Judge, which had struck out her claim for exemplary damages. The respondent, the Attorney General, opposed the application on the ground that Ms Lamb's claim was without merit. The court had to decide whether the application for review was filed within the appropriate time, whether there was a good explanation for the delay, and whether the proposed review had merit. The court granted the application for an extension of time, noting that the delay in filing the application was relatively short and had been explained. While Ms Lamb's claim may well be statute barred, the court found that it was at least worthy of full consideration on a review hearing. The court also found that Ms Lamb's concern about the costs order was not a basis for challenging the costs order that was made. The court directed that the review should be allocated a fixture in consultation with counsel for the respondent and Ms Lamb.

Ms Lamb's claim was that her care at Palmerston North Public Hospital in 1977 was deficient and resulted in her suffering partial paralysis. She claimed exemplary damages for the hospital's failure to adequately assess and treat her when it had a duty to do so. The Associate Judge had struck out Ms Lamb's claim on the grounds that it had no prospect of success, as it was statute barred and did not allege facts which could give rise to an award of exemplary damages. Ms Lamb sought to review the Associate Judge's decision, but her application for review was filed late. She applied for an extension of time to bring her review application. The court found that the delay in filing the application was relatively short and had been explained. Ms Lamb had made a mistake about the applicable procedure for challenging the Associate Judge's decision, and had therefore filed an appeal in the Court of Appeal. The court found that it was at least worthy of full consideration on a review hearing whether Ms Lamb's claim was statute barred and whether she could properly plead a claim that could give rise to exemplary damages.

Orders