MacKenzie v Legal Services Commissioner

[2012] NZHC 3098

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1299 [2012] NZHC 3098

UNDER  section 59 of the Legal Services Act 2011

IN THE MATTER OF     an appeal from a decision of the Legal Aid

Tribunal

BETWEEN  JOHN MORGAN MACKENZIE Appellant

ANDLEGAL SERVICES COMMISSIONER Respondent

Hearing:         7 November 2012

Appearances: Appellant in person (by videolink) D P MacKenzie for respondent

Judgment:      21 November 2012

RESERVED JUDGMENT OF DOBSON J

[1]      This is an appeal from a decision of the Legal Aid Tribunal (the Tribunal) upholding  an  original  decision  by  the  Legal  Services Agency  not  to  grant  the appellant (Mr MacKenzie) civil legal aid to pursue proceedings against the Crown Health   Funding  Agency.      Both   decisions   were   made   on   the   ground   that Mr MacKenzie’s  proposed  claim  lacked  sufficient  prospects  of  success.     The Tribunal’s decision, delivered on 30 May 2012, can only be challenged on a point of

law.[1]

MACKENZIE v LEGAL SERVICES COMMISSIONER HC WN CIV-2012-485-1299 [21 November 2012]

[1] Legal Services Act 2011, s 59.

[2]      To understand the context in which Mr MacKenzie has pursued this appeal, it is necessary to provide some detail of the circumstances in which he appears to be driven by a deep sense of grievance and injustice.

[3]      On the evening of Thursday, 1 October 1987, Mr MacKenzie’s son, Kenneth John MacKenzie, aged 20, crashed his motorcycle, suffering severe head injuries. He was admitted to Tauranga Hospital where he was pronounced dead at 2am the following morning, after life support had been terminated.

[4]      Kenneth’s heart was removed.  There is a dispute about whether it was done immediately after he died, or during an autopsy some 12 hours later.   The point matters  because  Mr MacKenzie  believes  the  heart  was  removed  at  once  for transplant purposes.  Some support for that view may be found in evidence that the family were asked to authorise a transplant, but refused.  There is an issue whether the coroner authorised the subsequent autopsy at all, and whether the autopsy was done as a pretext to justify taking the heart.

[5]      The heart was taken to Greenlane Hospital in Auckland, where one of the valves was successfully transplanted into a 16 year old girl.  What happened to the rest of the heart is not known for sure.   It was likely treated as human tissue and cremated in Auckland.   It was not usual at the time to return such tissue to the deceased’s family for burial.

[6]      Kenneth’s family were not told at the time what had happened to the heart. The autopsy report  indicates  only that  it  was  removed and  weighed  during  the autopsy.  Mr MacKenzie has long harboured suspicions about what happened.  His reconstruction of events is that Kenneth’s mother had attended the hospital after Kenneth had been put on life support, and arranged with the doctor supervising his care that her son would stay on life support until 9am in the morning, affording an opportunity for the family to gather and make a decision in light of his condition about  terminating  life  support.     Mr MacKenzie  infers  that  the  doctor  then countermanded the arrangement that had been made, given the inevitability that Kenneth would die and the hospital’s interest in acquiring his heart, and knowing or suspecting that the family, if asked, would not give their permission for its removal.

[7]      Mr MacKenzie made enquiries of Tauranga Hospital from 2002, if not earlier. In  early  2005,  Mr MacKenzie  made  a  written  enquiry  of  Dr Beer,  a  Tauranga pathologist who had apparently been involved at the time of his son’s accident.  In a letter dated 5 March 2005, Dr Beer replied to Mr MacKenzie, advising as follows:

With the passage  of  time,  I have  no  specific  recall of  your  son’s  case. However, I can confirm the practice current in 1987. At that time, Greenlane Hospital   supplied   mortuaries   throughout   New Zealand   with   special containers for heart valves in cases where the person had died from a non- heart related cause and the aortic valve was healthy.   Natural heart valves were superior to the artificial valves at the time and Greenlane Hospital actively encouraged return of valves for use in valve replacement surgery. The valve was sent to Greenlane but the rest of the heart remained with the body.

At this time it was not usual practice for consent to be obtained from next of kin.  This practice ceased around the time the new Coroner’s Act came into force on 1 January 1989.  The logistics of confirming written consent from next of kin introduced a time delay that prevented the urgent delivery of the valve to Greenlane.

[8]      At around the same time, Mr MacKenzie also made enquiries of the National Transplant Donor Co-ordination Office in Auckland.  He received a response from the donor co-ordinator at that organisation dated 21 March 2005 that included the following:

Kenneth’s  tragic  death  was  before  heart  transplantation  commenced  in New Zealand  and  before  our  service  was  set  up  in  December  1987. However,  I have  contacted  the  Heart Valve  Bank which was previously situated at Green Lane Hospital and is now situated on the Auckland City Hospital site.  They confirmed that they did retrieve the aortic heart valve from Kenneth’s heart and that the heart valve was successfully transplanted to a young sixteen year old girl.

This recipient and her family will be very grateful that following her heart valve transplant she would have been able to return to a normal healthy life- style without the need for long-term medications.

On behalf of this recipient and her family and Cardiothoracic Surgical Unit at Green Lane Hospital, thank you for your generosity.

[9]      Mr MacKenzie  perceives  the  inconsistencies  in  explanation  between  that offered  by the pathologist,  and  that  reconstructed  by the donor co-ordinator,  as reflecting an intentional cover-up of an unlawful taking of his son’s heart.  He treats the conduct of an autopsy as a pretext, again contrived after the event to justify an unlawful taking of the heart.  He complained of the offence caused to the family by

his son being “unnecessarily mutilated” by the autopsy, and what he reconstructs as the  absence  of  the  victim’s  heart  as  depriving  the  family  of  an  opportunity  to properly grieve and to farewell their son in circumstances of dignity.

[10]   In November 2006, the Crown Health Financing Agency asserted the circumstances of removal of Kenneth’s heart inconsistently with Mr MacKenzie’s belief, denied liability in respect of claims he was threatening and raised, among other things, that the Limitation Act would be relied on as a bar to any claim. Thereafter, Mr MacKenzie’s on-going attempts to have recognition of his grievance and be paid a financial settlement have resulted, among other things, in letters from Attorneys-General  in  February  2007  and  March  2009  to  the  effect  that  if  he disagreed with the Crown Health Financing Agency’s decision then the appropriate course would be to commence legal proceedings.

[11]     Mr MacKenzie likens his claim to that of parents of children who had organs removed, without consent, on their death over a prolonged period.  It appears that there was a long-standing practice at Greenlane Hospital of removing organs from deceased babies and children without parental consent.  When this practice came to light,  parents  brought  claims,  which  were  subsequently  settled.    Mr MacKenzie argues that settlements would only have occurred if there were valid claims, and his should be recognised as the same.

[12]     In this case, the Crown Health Funding Agency has sought to defend the removal by claiming that Kenneth’s heart was lawfully removed during autopsy.  It maintains that no actionable wrong was done.   However, under s 3 of the Human Tissues Act 1964, which was in force at the time, organs could be removed for therapeutic purposes only if the person lawfully in possession of the body had no reason to believe that surviving relatives objected to the body being so dealt with. Mr MacKenzie may be able to show that the heart was removed for transplant, or that the legislation did not authorise therapeutic use of organs that had previously been removed to ascertain cause of death.  In the circumstances, I proceed, as did the Tribunal,  on  the  assumption  that  Mr MacKenzie  may  be  able  to  establish  that Kenneth’s heart was removed unlawfully.

[13]     Mr MacKenzie  still  wants  to  sue the Crown  Health  Funding Agency for damages, but feels unable to do so without legal representation, which he cannot afford.  Mr MacKenzie considers that all government agencies that he has dealt with have deliberately obstructed his initiatives to get proceedings underway, because they   appreciate   the   extent   of   embarrassment   and/or   cost   involved   for   the Government if and when the courts recognise his claim.  Mr MacKenzie attributes that motivation to the decisions not to grant him legal aid, and to various bodies involved in the administration or supervision of health services with which he had dealt.   He suspects the same of the Ministry of Justice to whom he had sent documents, and who then frustrated him by allegedly misaddressing its responses.

Grounds of appeal

[14]     The Legal Services Commissioner’s assessment[2] of Mr MacKenzie’s claim as lacking sufficient prospects of success was confirmed in the decision of the Tribunal now under appeal, except on one point.

[2] The original decision to decline aid had been the subject of two reasoned reconsiderations undertaken in response to requests by Mr MacKenzie.

[15]     The list of impediments cited by the Commissioner (as summarised in the decision of the Tribunal) was as follows:[3]

[3] Re MacKenzie [2012] NZLAT 023 at [14].

undersection 4 of the Limitation Act 1950 (the applicable statute in this instance) any legal proceedings would be out of time;

the applicant lacks standing to bring an action;

there is no evidence that the actions of the DHB (sic) had caused the applicant any recognised mental disorder (which might otherwise allow him to bring an action);

in  the  event  that  the  applicant  is  seeking  to  bring  a  claim  in exemplary damages,  it  must  be  linked  to  a sustainable cause  of action;

in the event that the applicant is acting on behalf of the deceased’s estate a claim for exemplary damages is barred under section 3(2)(a) of  the  Law  Reform Act  1936,  and  any  claim  for  compensatory damages cannot be sustained given the absence of any compensatory loss; and

the Human Tissues Act 1964, which governed the removal of human tissue and post-mortem examination at the time, did not require the consent  of relatives  before  tissue  could  be removed  for  medical purposes.

[16]     For its part, the Tribunal took a different view in relation to the provisions of the Human Tissues Act 1964, reaching the view that there may have been a prima facie breach of the statutes consent provisions.[4]

[4] At [42] and [43].

[17]     Mr MacKenzie rejects the conclusions that have been reached on each of the impediments to a claim, but he has not provided any new arguments against those conclusions, or identified any new basis for a claim.

[18]     The criterion consistently applied in the decisions that Mr MacKenzie should not be granted legal aid reflect the discretionary evaluation under s 10 of the Legal Services Act 2011 of whether the prospects of success for the applicant for aid are “not  sufficient  to  justify  the  grant  of  legal  aid”.[5]      The  relevant  evaluation  of “prospects of success” involves weighing likely benefits against likely costs, and whilst generally measurable in dollar terms, there may be cases in which success involves the vindication of some important point of principle.[6]   For this appeal to be successful, I would need to be satisfied that the Tribunal erred in its evaluation of the prospects of this claim succeeding.

No actionable wrong done to Mr MacKenzie

[5] Section 10(4)(d)(i).

[6] Timmins v Legal Aid Review Panel [2004] 1 NZLR 708 (HC) at [33].

[19]     Mr MacKenzie is a secondary victim of any unlawful removal.   It appears that he has suffered considerable distress from what he regards as the mutilation of Kenneth’s body and subsequent concealment of what was done.

[20]    However, a secondary victim cannot sue for mental suffering caused by awareness of death or injury to a principal victim through negligence, unless the secondary victim has suffered a recognisable psychiatric disorder or illness.[7]    The

[7] van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA) at [65].

requirement for some form of mental illness brought on by the allegedly unlawful

conduct has been canvassed in prior stages of Mr MacKenzie’s attempts to obtain

legal aid, and he has not suggested that any such condition exists.

[21]     In the absence of a cause of action personal to him, Mr MacKenzie cannot mount a claim for exemplary damages either.[8]

[8] Barlow v Humphrey [1990] 2 NZLR 373 (HC).

[22]     Mr MacKenzie argued that he would not want to seek exemplary damages, but   rather   would   confine   himself   to   a   claim   for   compensatory   damages. Mr MacKenzie indicated that he understood the difference between the two types of damages.  I asked him how much he would claim by way of compensatory damages, and how he would justify the amount sought.  He was unable to do so initially, but after an adjournment indicated that he would likely claim $150,000 compensatory damages.  However, he was unable to identify any items of financial loss incurred that were sufficiently related to the removal of his son’s heart to qualify as compensatory damages.    Instead,  Mr MacKenzie’s  description  of the amount  he might claim mostly had the hallmarks of a sum to reflect the Court’s (anticipated) disapproval of the unlawful taking of the heart, and the subsequent steps taken to obfuscate the circumstances in which it had occurred.

[23]     It is clear that Mr MacKenzie could have no basis for claiming exemplary damages, and compensatory damages could be no more than reimbursement for costs incurred in seeking an acknowledgement of what actually happened, and an apology for the perceived wrong.

[24]     On that basis, the Tribunal was clearly entitled to have regard to the very remote prospects of any financial benefit in proceedings, were they to succeed, and to take the view that it would be outweighed by the costs of pursuing such claims.

[25]     Mr MacKenzie pointed to the settlement of claims brought by the parents of infants  whose  organs  were  taken  without  permission  at  Greenlane  Hospital. However,  those  claimants  are  distinguishable  because  Mr MacKenzie  was  not Kenneth’s guardian, as Kenneth was aged 20 at the time of his death.  Further, the

question is not whether a State agency has settled other claims: that is a defendant’s

prerogative.  It might settle because it recognised a moral but not legal responsibility or wished to avoid the costs of trial.  The relevant question for the purposes of this appeal is whether Mr MacKenzie’s claim has prospects of success in law.  He has pointed to nothing that might show the Tribunal was wrong to conclude that his claim has no real prospects of success.

[26]     I raised with Mr MacKenzie the prospect of a claim being brought in the

name of Kenneth’s estate.  He indicated that that was not an option.

[27]     In any event, the Legal Services Commissioner touched on this prospect by pointing out that no loss was suffered by the estate that might found an award of compensatory damages, and any claim for exemplary damages  on behalf of the estate of a deceased person would be precluded by s 3(2)(a) of the Law Reform Act

1936. The Tribunal agreed.

Limitation period for civil claims

[28]     The argument before me, as below, proceeded on the assumption that the six year limitation period for actions in tort would apply.   If a cause of action were available for breach of a statutory duty,[9]  then the same period would apply.   The analysis on when the limitation period would start to run has assumed that the relatively confined concept of reasonable discoverability would defer the point from which time began to run.  Mr Duncan MacKenzie, in his submissions for the Legal Services Commissioner, argued that that was a generous assumption and that there is a very real prospect that the circumstances in which Mr MacKenzie framed his claim

[9] None was contemplated by Mr MacKenzie.  There might be scope to argue, for example, that proceeding to remove Kenneth’s heart, in the knowledge that his family opposed that, amounted to a breach of a duty owed under the then provisions of the Human Tissues Act 1964.

would not qualify for that extension. Again, for the purposes of argument, I will also assume that reasonable discoverability would apply.

[29]     The Tribunal found that, at the very latest, the elements of the cause of action were available by 21 March 2005, when Mr MacKenzie received confirmation that

Kenneth’s heart had been removed and used for transplant purposes.  On a view of

the facts most favourable to Mr MacKenzie, the period in which his claim could have been brought ended on 21 March 2011.

[30]     Mr MacKenzie has pointed to nothing which might suggest that the Tribunal was wrong in this respect.  He again cites the decision to settle claims brought by parents of children whose organs were removed at Greenlane Hospital.  No details are available as to the period between the deaths of the children, and pursuit of the claims, or whether the Crown was, in those cases, prepared to forgo any Limitation Act defence.  Again, the question is not why a State agency chose to settle those claims.  The question is whether Mr MacKenzie would be able to answer a limitation defence at trial in this case.  I agree with the Tribunal that, on the material presented, a limitation defence appears unanswerable.

[31]     It follows that the Tribunal was correct, for the reasons which it gave.  The appeal is dismissed.

Name suppression

[32]     In his submissions in reply, Mr MacKenzie asked for the first time that there be  name  suppression  so  as  to  avoid  him  and  Kenneth  being  identified.    He anticipates that if he is named, he would be hounded by the media, and also was concerned that the memory of his son ought not to be sullied by the circumstances of his death being raised in proceedings as has occurred.  Mr MacKenzie also implied that other members of his extended family do not agree with the initiatives he is attempting to take, in pursuing claims of the type involved.

[33]     The balance to be struck in each case between the very important interests of open justice, and the particular prejudice or harm that might be caused to litigants by publication  of  their  names  will  vary  infinitely.    Mr MacKenzie’s  concerns  over publicity are unusual and, to a degree, inconsistent with his wider aspirations to reveal  what  he  considers  to  be  unlawful  behaviour  in  1987  and  its  subsequent

cover-up.   The primacy given to the principles of open justice is reflected in the following observation from the Court of Appeal:[10]

[10] Clark v Attorney-General (No 1) [2005] NZAR 481 (CA) at [42].

… the principles of open justice and the related freedom of expression create a presumption in favour of disclosure of all aspects of court proceedings which can be overcome only in exceptional circumstances.  We refer here to the case of Re Victim X [2003] 3 NZLR 220 in which this Court upheld the setting aside of a suppression order in favour of the intended victim of a failed kidnapping plot. The Court was mindful of “the sense of anguish” the result would cause the intended victim and his family but held that the victim’s private interest did not outweigh the fundamental principles of open justice and freedom of expression.

[34]     None of the conventional bases for suppressing the identity of a litigant in civil  litigation  apply  here  to  justify  overriding  the  interests  of  open  justice. Mr MacKenzie is not sensitive to any confidential details of his own situation being revealed in circumstances that cause embarrassment.  Indeed, at times he referred to what he perceives as access to justice being blocked to him, with the consequence that he would be forced to go to the “court of public opinion”.

[35]     Accordingly, I am not prepared to order suppression of his name, or any of the details of his proposed claims.

Costs

[36]     The respondent is entitled to costs on a 2B basis.  However, I invite the Legal Services Commissioner to reflect on whether it would be appropriate not to enforce an order, depending on the nature of any future dealings with Mr MacKenzie.

Dobson J

Solicitors:

Minter Ellison Rudd Watts, Wellington for respondent

Copy to:

J M MacKenzie, Tauranga