P v F - [2014] NZHC 456

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-680 [2014] NZHC 456

BETWEEN P Plaintiff

ANDF Defendant

Hearing: 27 February 2014

Counsel: H J P Wilson and A M Hall for Plaintiff
A C Challis and H K Harkess for Defendant

Judgment: 17 March 2014

JUDGMENT OF RONALD YOUNG J

Introduction

[1] These proceedings raise the question, through an indirect route, of whether

Mr P is an “aggrieved person” under the Health and Disability Commissioner Act

1994 (HDCA) arising from the birth of his child.

[2] The issue arises in this way. Mr P’s child was born in February 2001. As a result of birth complications the child suffered oxygen deprivation and later developed cerebral palsy. Mr P was present at the birth. A complaint was made to the Health and Disability Commissioner (the Commissioner) regarding the actions of the doctor present at birth towards Mrs P and the child. Initially the Commissioner refused to investigate. However later, after further medical opinions were obtained, the Commissioner agreed to do so. In the meantime the Accident Compensation
Corporation (ACC) had accepted Mrs P’s claim for cover.

P v F [2014] NZHC 456 [17 March 2014]

[3] The Commissioner’s investigation found that the doctor present at birth had breached some of Mrs P’s rights under the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (the Code). While the doctor was ordered to apologise and undertake further medical training, the Commissioner did not refer the matter to the Director of Proceedings.

[4] In 2004 the defendant in these proceedings, Ms F, a barrister, was instructed to provide legal advice to Mr and Mrs P about potential remedies arising from the circumstances of the birth of their child.

[5] In 2007 Mr P engaged Ms F to act for him in compensation proceedings. A claim on Mr P’s behalf was filed in the Human Rights Review Tribunal (HRRT) seeking damages from both the relevant District Health Board and the doctor. The HRRT granted the District Health Board and the doctor’s application to strike out Mr P’s proceedings on the basis that Mr P was not an “aggrieved person” in terms of the HDCA and therefore could not bring a claim for damages.

[6] Mr P then instructed Ms F to appeal this decision. While Ms F filed the appeal documents in the High Court she failed to serve the notice of appeal on the HRRT. That failure meant that the appeal was irretrievably out of time and could not be pursued.

[7] Mr P has now brought these proceedings against Ms F based on her admitted negligent failure to properly serve the notice of appeal on the HRRT.

The issue in this case

[8] The parties agree that the preliminary issue I have identified at the beginning of this judgment can conveniently be decided before any full trial. If Mr P is not an aggrieved person under the HDCA (as claimed by Ms F) then his…

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 P v F

Details

AGLC: P v F [2014] NZHC 456
Case: [2014] NZHC 456
Decision Date: 17 March 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of P v F addressed the issue of whether Mr P could be considered an "aggrieved person" under the Health and Disability Commissioner Act 1994, given the circumstances surrounding the birth of his child. Mr P's child was born in February 2001 and suffered from cerebral palsy due to birth complications. A complaint was made to the Health and Disability Commissioner regarding the doctor's actions during the birth, which led to an investigation that found a breach of Mrs P's rights under the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996. The Commissioner ordered an apology and further medical training for the doctor, but did not refer the matter to the Director of Proceedings.

In 2004, Ms F, a barrister, was instructed to provide legal advice to Mr and Mrs P regarding potential remedies arising from the circumstances of the birth of their child. In 2007, Mr P engaged Ms F to act for him in compensation proceedings. A claim on Mr P's behalf was filed in the Human Rights Review Tribunal (HRRT) seeking damages from the relevant District Health Board and the doctor. However, the HRRT granted the District Health Board and the doctor's application to strike out Mr P's proceedings on the basis that he was not an "aggrieved person" under the Health and Disability Commissioner Act and therefore could not bring a claim for damages.

Mr P then instructed Ms F to appeal this decision. While Ms F filed the appeal documents in the High Court, she failed to serve the notice of appeal on the HRRT, rendering the appeal irretrievably out of time and unable to be pursued. Mr P then brought these proceedings against Ms F, based on her admitted negligent failure to properly serve the notice of appeal on the HRRT.

The central issue in this case was whether Mr P could be considered an aggrieved person under the Health and Disability Commissioner Act, as his claim before the HRRT could never have succeeded if he was not an aggrieved person. If Mr P was an aggrieved person, then the proceedings could continue to trial, and if he was not, then the proceedings in the High Court against Ms F would come to an end.

The court found that Mr P was not an aggrieved person under the Health and Disability Commissioner Act. While the Court of Appeal in Marks v Director of Health and Disability Proceedings left open the question of whether the father of a child may have derivative consumer rights and therefore be able to seek damages for breach of the Code, the court in P v F concluded that there were practical and principled objections to such an approach. The court found that the definition of aggrieved persons must be wider than the definition of "health consumer," but only to include those who are exercising rights on behalf of a consumer and the executors of a consumer’s estate. A father involved in the pregnancy process and birth is in a quite different situation, and his derivative claim, if it exists, would have to arise from the mother as the primary consumer.

Therefore, the court concluded that Mr P was not an aggrieved person for the purpose of the Health and Disability Commissioner Act, and he could not bring a damages claim in his own right for a breach of the Code as a derivative consumer. As a result, despite Ms F's negligent failure to bring Mr P's appeal, he had suffered no loss. Consequently, these proceedings in the High Court against Ms F could not succeed.

Orders