IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2012-470-977 [2015] NZHC 191
UNDER
the Human Tissue Act 1964, the Coroners
Act 2006
BETWEEN
JOHN MORGAN MACKENZIE Plaintiff
AND
THE ATTORNEY-GENERAL (sued in respect of the Crown Health Financing Agency)
Defendant
Hearing:
18 March 2014
Appearances:
Plaintiff in person T Bromwich for Defendant
Judgment:
17 February 2015
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 17 February 2015 at 4:30pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors:
Crown Law (T Bromwich), Wellington, for Defendant
Copy for:
Mr J M Mackenzie (Plaintiff)
MACKENZIE v THE ATTORNEY-GENERAL (sued in respect of the Crown Health Financing Agency) [2015] NZHC 191 [17 February 2015]
TABLE OF CONTENTS
Paragraph
Mr Mackenzie’s claim [4]
Has Mr Mackenzie sued the right defendant? [8]
Does Mr Mackenzie have a cause of action? [19] Does Mr Mackenzie have a defamation claim? [23] Does Mr Mackenzie have a cause of action for the
removal of the aortic valve without consent? [25] A common law question [28] Coroners Act 1951 [29] Human Tissue Act 1964 [32] The interest claimed by Mr Mackenzie [37] Other jurisdictions [59] United States [60] Canada [62] Scotland [63] England [66] In Re Organ Retention Group Litigation [68]
Is Mr Mackenzie’s cause of action statute-barred? [78] Limitation for removal of aortic valve [81] Limitation for defamation claim [92]
Outcome [93]
[1] In this organ-harvesting case, Mr Mackenzie sues over the removal of the heart from the body of his deceased son after consent had been refused. The defendant applies to strike out. That requires me to decide these questions:
(a) Has Mr Mackenzie sued the right defendant? (b) Does he have a cause of action?
(c) Is his claim statute-barred?
[2] In summary, the Crown Health Financing Agency, whom Mr Mackenzie originally sued, no longer exists. The Attorney-General is substituted as the defendant. Although Mr Mackenzie has an arguable cause of action, his claim is out of time.
[3] I have taken much longer to give this decision than I would have liked. I
apologise to the parties for the delay.
Mr Mackenzie’s claim
[4] Mr Mackenzie’s son, Kenneth, aged 21, was fatally injured in a motorbike accident on 1 October 1987. He was admitted to Tauranga Hospital with head injuries and put on life support. That was later withdrawn and Kenneth died early in the morning of 2 October 1987. Mr Mackenzie says that a doctor asked for consent to take Kenneth’s aortic valve but that was refused. Notwithstanding that refusal, Kenneth’s heart was removed. The aortic valve was used in a successful transplant operation at Greenlane Hospital in Auckland. The Tauranga coroner authorised an autopsy, which is said to have taken place early in the afternoon of 2 October 1987. Mr Mackenzie contends that the heart was removed before the coroner authorised the autopsy. The defendant does not agree. For reasons that I will give later, I do not think that 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.
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MacKenzie v Attorney-General [2015] NZHC 191
Case
[2015] NZHC 191
Decision Date
CaseChat Overview and Summary
In MacKenzie v Attorney-General, the plaintiff, Mr MacKenzie, sued over the removal of his deceased son's heart without consent. The primary legal issues the court had to decide were whether Mr MacKenzie had sued the right defendant, whether he had a cause of action, and if his claim was statute-barred. The court determined that although Mr MacKenzie had an arguable cause of action, his claim was out of time. The defendant had shown that the claim was statute-barred under the Limitation Act 1950, and Mr MacKenzie had not presented an arguable case for an extension or postponement of the limitation period. Consequently, the court struck out Mr MacKenzie's statement of claim as frivolous and vexatious. The court also extended the time for applying for a review of this decision to allow Mr MacKenzie to consider his options.