[2] On 2 July 1977, Ms Lamb and her family were involved in a serious motor vehicle accident. Ms Lamb, who was then eleven years of age, suffered serious head injuries.

[3] Ms Lamb was admitted to the Palmerston North Public Hospital, where she remained for approximately three and a half months. In that period, she says that she developed paralysis on the left side of her body, to the point where she was not able to open her left hand. Her left hand and elbow were flexed upright, and her left foot so tight the heel would not touch the floor.

[4] Ms Lamb says that it was not until 6-9 days after the 1977 accident that she started to slowly develop the paralysis on the left side of her body. She alleges that

TANIA JOY LAMB v THE ATTORNEY-GENERAL [2015] NZHC 2066 [28 August 2015]

the development of the paralysis could have been avoided if she had received proper care immediately after the accident. She contends in particular that the hospital records from the time show that she had symptoms of intracranial pressure, but no (or no sufficient) action was taken to prevent or alleviate the intracranial pressure in her brain. No neurosurgical assessments were undertaken in what she says was the critical period of six days before the onset of the paralysis, or indeed in the three and a half months she spent in hospital. There were no CAT scans, nor any telephone consultations with the neurosurgeons who would have been available for consultation at the main hospitals in New Zealand. A burr drilled in the side of her head to relieve intracranial pressure is said to have been inadequate, either as a diagnostic tool or as a form of treatment.

[5] Ms Lamb says that the failure to diagnose the extent of her head injuries sustained on 2 July 1977 was negligent. She contends that she lost the chance to undergo treatment which may have prevented some or all of the injuries she sustained.

[6] In 1979, at the age of thirteen, Ms Lamb wrote to a number of neurosurgeons to see whether anything could be done to rectify the tightness in her arm and correct an uneven gait. She saw a Wellington neurosurgeon that year, and various neurological assessments were made.

[7] Ms Lamb commenced her Court proceeding on 29 September 2014. In her statement of claim, she named the Mid-Central District Health Board as the defendant, on the basis that it was the entity with legal responsibility for…

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 [2015] NZHC 2066
Case: [2015] NZHC 2066
Decision Date: 28 August 2015

CaseChat Overview and Summary

Tania Joy Lamb, a plaintiff, brought an action against the Attorney-General, suing in respect of the Ministry of Health, claiming damages for injuries sustained in a motor vehicle accident in 1977. The plaintiff commenced proceedings on 29 September 2014, naming the Mid-Central District Health Board as the defendant. The Mid-Central District Health Board took the view that it was not the correct defendant, and that any liability for the acts or omissions of those involved in Ms Lamb’s treatment in 1977 rested with the Crown. The plaintiff accepted that view, and on 19 February 2015 an order was made removing Mid-Central District Health Board as defendant and substituting as defendant the Attorney-General, sued in respect of the Ministry of Health. The defendant applied to strike out Ms Lamb’s amended statement of claim. The issues to be determined were whether Ms Lamb’s claim was clearly statute-barred under the Act, and whether on the facts pleaded in her amended statement of claim it was reasonably arguable that Ms Lamb might be entitled to exemplary damages. The court held that the defendant had satisfied the test for striking out on limitation grounds set by the Supreme Court in Murray v Morel & Co. There will be orders striking out the statement of claim accordingly. The court held that Ms Lamb’s amended statement of claim was also deficient under this heading. The court held that there was nothing in Ms Lamb’s pleading which in the court’s view sufficiently alleged intentional misconduct or subjective recklessness in allowing harm to befall Ms Lamb. The allegations in the amended statement of claim did not sufficiently allege outrageous conduct of that sort. The court made orders that Ms Lamb’s amended statement of claim dated 26 February 2015 was struck out and that the defendant was awarded costs on scale 2B, including two half days for the hearings on 23 July 2015 and 20 August 2015, plus disbursements as fixed by the registrar.

Orders