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 proceedings before the HRRT could never have succeeded and so Ms F’s failure to properly file the appeal has caused Mr P no loss.  In those circumstances his proceedings in the High Court against Ms F would come to an end.   If Mr P is an aggrieved person (as claimed by Mr P) then the proceedings can continue to trial.  And so the question of

whether  Mr P  is  an  “aggrieved  person”  for  the  purpose  of  the  HDCA  in  the circumstances of this case is the sole focus of this judgment.

[9]      For the purpose of this case it is accepted that Mr P suffered a mental injury arising from him witnessing the circumstances of his child’s birth and the consequences for that child.  Mr P was present at the birth of his child and therefore witnessed each of the breaches of the Code relating to Mrs P.  Mr P had sought ACC cover for his mental injury but this was declined.

Statutory context

[10]     First,  the  statutory  context  for  proceedings  before  the  HRRT  and  the definition of aggrieved person.  The Commissioner may investigate any action by a health provider if the Commissioner considers the actions appear to be in breach of the Code.1

[11]     The Commissioner can do so whether there is a complaint or not.2     The relevant parties are notified, the investigation takes place and the Commissioner notifies the relevant persons of the result of the investigation.3

[12]     If the Commissioner concludes there was a breach of the Code then the Commissioner may, amongst a number of possible actions, refer the breach to the Director of Proceedings.4    After referral the Director of Proceedings may, amongst other powers, decide to bring proceedings before the HRRT for breach of the Code.5

[13]     Where, however, the Commissioner does not refer a person who has breached the Code to the Director of Proceedings, or the Director of Proceedings does not pursue  a  case  referred  to  him  or  her,  then  the  “aggrieved  person”  can  bring

proceedings themselves before the HRRT.6

1      Health and Disability Commissioner Act 1994, s 40.

2      Section 41.

3      Section 43.

4      Section 45(2)(f).

5      Sections 49 and 50.

6      Section 51.

[14]     The HRRT can (amongst other orders) order damages against the defendant in favour of the aggrieved person.7     Section 57 identifies what damages may be payable and provides that an aggrieved person or someone on their behalf is entitled to the damages payable.8  An aggrieved person is not defined in the Act.

Marks, O’Neil and Harrild

[15]     The question of who an aggrieved person is came before the Court of Appeal in Marks v Director of Health and Disability Proceedings.9    The background facts were these.  SW committed suicide.  Dr Marks, a consultant psychiatrist, had been treating SW. The Medical Practitioners Disciplinary Tribunal found Mr Marks guilty of misconduct regarding his treatment of SW.   SW’s parents complained to the Commissioner.  Ultimately the Director of Proceedings brought a claim on behalf of SW’s parents seeking, amongst other orders, $40,000 in damages.

[16]     Dr Marks unsuccessfully sought to strike out the claim before the HRRT on the basis that SW’s parents were not aggrieved persons.  Dr Marks’ challenge to that ruling in the High Court also failed.  However, the Court of Appeal concluded that “only consumers with rights under the Code can be aggrieved persons under the

HDC Act”.10   SW’s parents were not themselves health consumers with rights under

the Code. And so their claim failed.

[17]     It is common ground that Mr P was not, at the time of his child’s birth, a “consumer” with rights under the Code himself.  He was not subject directly to any form of medical treatment or intervention at the birth of his child. And so any rights

that he may have do not arise as a “primary” health consumer.

7      Section 54(1)(c).

8      Section 57(2), (3), (4) and (5).

9      Marks v Director of Health and Disability Proceedings [2009] NZCA 151, [2009] 3 NZLR 108.

10 At [62].

[18]     However, the Court of Appeal suggested there may be two caveats to its conclusion as to the meaning of aggrieved persons. The Court went on to say:

[63]      We have two caveats. The first caveat relates to the position of fathers of babies in the course of pregnancy and the birth process. Because of the recognition of the increased role of fathers in that regard, it may be that they could be seen to be derivative consumers in their own right and thus aggrieved persons under the HDC Act. This appears to have been the view (obiter) of Blanchard and Glazebrook JJ in Harrild v Director of Proceedings [2003] 3 NZLR 289 at [74] and (implicitly) of McGrath J at [81]. Elias CJ left open the question as to the father's entitlement to damages at [14], while the issue was not examined by Keith J. We leave that point open. We are thus not to be taken as overruling O’Neill, insofar as it relates to the position of fathers.

[64]     The second caveat relates to the position if the person whose rights have been breached under the Code has died. The parties are agreed that the standing of SW's estate is expressly preserved by s 51 of the HDC Act as an executor would be, in terms of that section, a person authorised to act on an aggrieved  person's  behalf.  Mr  Hodson  also  refers  to  s 3(1)  of  the  Law Reform Act 1936, which provides that, subject to certain requirements, on the death of any person all causes of action (except defamation or inducing one spouse to leave or remain apart from the other) subsisting against or vested in him or her shall survive against or, as the case may be, for the benefit of his estate.

[65]      We consider, contrary to the parties' submissions, that there may be uncertainty as to whether s 51 can apply where there is no subsisting complaint and where the person who died did not authorise a complaint being lodged before his or her death. Further, there may also be uncertainty whether a complaint procedure leading to a case being taken by the Director can be a “cause of action” in terms of s 3(1) of the Law Reform Act 1936, as it is an action taken by the Director rather than the complainant. Because of these uncertainties, we would extend the term aggrieved person in the HDC Act to cover a deceased person's executors or administrators. It would be unsatisfactory if breaches of the Code with regard to deceased consumers remained without remedy. Where a consumer has died, there would be none of the possible conflicts referred to above at [30] and [38]. The executors or administrators would, however, be claiming on behalf of the deceased consumer and not in their own right.

[66]     Ms McDonald submits that giving executors and administrators a derivative right only would effectively leave SW's estate without remedy because damages under s 57(1)(d), being punitive damages, would be precluded by s 3(2)(a) of the Law Reform Act 1936, which precludes an estate from recovering exemplary damages. Further, there would be difficulties of proof with regard to the heads of damages under s 57(1)(a) to (c).

[67]      We consider that there may be an issue as to whether the statutory s

57(1)(d) damages, albeit called punitive in s 57(2), are in fact caught by the Law Reform Act 1936 prohibition on exemplary damages, given that they are a statutory head of damages and given the purposes of the HDC Act. We are not, however, to be taken as expressing a view on that issue. In terms of

the proof of the matters relating to the heads of damage in s 57(1)(a) to (c), we agree that there may be some difficulties in establishing the claim on behalf of the deceased person. However, we do not consider that, for example, the matters referred to in s 57(1)(c) are wholly subjective. Once the breach of the Code is established, the relevant humiliation, injury to feelings and loss of dignity could be inferred from the circumstances of the breach. We also note that, even if a damages claim cannot be sustained, there remains the possibility of a declaration under s 54(1)(a) of the HDC Act. Further, as happened in this case, there is also the avenue of a complaint to the relevant disciplinary body: see at [1] above.

[19]     As to O’Neil the Court in Marks said:11

[56]     Ms McDonald relies heavily on the cases interpreting the term aggrieved person in the context of anti-discrimination legislation, pointing out that the Tribunal is common to both litigation under that legislation and that under the HDC Act. She also relies on case law in other contexts and on the case of O’Neill in the HDC Act context.

[57]      We do not find it helpful to refer to case law in unrelated statutes. We do agree that it would normally be expected that the same term used in two pieces of legislation dealing with rights, and which share the same Tribunal, would have the same meaning. However, the decisions under the HDC Act, although by the same Tribunal as under the Human Rights Act, are decided within a different statutory context. The meaning of the term in the HDC Act must be gleaned from the statutory provisions of the HDC Act.

[58]     We accept that O’Neill was a case under the HDC Act and that it proceeded  on  the  assumption  that  a  baby's  parents  could  be  aggrieved persons under that Act but the point was not fully argued. Further, as Ms McDonald acknowledges, the mother was a health consumer in her own right.

[20]     The other case mentioned by the Court of Appeal was Harrild v Director of

Proceedings.12   In Harrild the issue was, as identified by McGrath J:

[79]      Has  a  pregnant  woman,  whose  unborn  child  died  as  a  result  of medical misadventure, suffered personal injury on that account so as to have cover under accident compensation legislation?

11     Director of Proceedings v O’Neil [2001] NZAR 59 (HC).

12     Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA).

[21]     In Harrild the Director of Proceedings had brought proceedings under the HDCA on behalf of parents of a stillborn child.  Both the relevant Tribunal and the High Court concluded the mother was covered by ACC and therefore a claim for damages under the HDCA was statute barred.  Justices Glazebrook and Blanchard, giving a minority judgment, said:

[74]      In this case too the Director of Proceedings is acting on behalf of both Mr and Mrs M. Any decision that Mrs M was covered by the accident compensation legislation would not apply to Mr M. There would be two different regimes operating. Mr M would also clearly retain any common law rights he may have. This could lead to an anomalous result and provides a further reason for interpreting the provisions of the 2001 Act strictly in accordance with their plain wording.

[22]     Thus, the Court noted that the stillborn child’s father had potential remedies under the HDCA as well as common law rights.  For proceedings to be brought on behalf of the father of the stillborn child in Harrild the father would have to bring himself within the definition of an aggrieved person.

[23]     And so Mr P says that the observations of Glazebrook and Blanchard JJ at [74]  supports his contention that “secondary” health consumers (in Harrild, the father of a stillborn child) can be aggrieved persons.

[24]     I consider it is not clear from the Harrild judgment that the issue of whether the father of the stillborn child was an aggrieved person was the subject of any submissions, argument or analysis by the Court.   I do not consider the Harrild decision assists the analysis in this case.

[25]     In Marks the Court of Appeal specifically left open the question of whether the father of a child (the child presumably being the primary health consumer) may have derivative consumer rights and therefore be able to seek damages for breach of

the Code.13   That issue falls directly for resolution in this case.

13 At [63].

[26]     In Marks the Court recognised that the definition of an aggrieved person must

be wider than the definition of “health consumer”.  The Court said:

[17]     The first point we make is that the term aggrieved person must be wider than health consumer as defined in the HDC Act, as it must (as Mr Hodson accepts) include persons whose derivative informed consent rights (ie  rights  to  consent  on  behalf  of  another)  under  the  Code  have  been breached. The fact that only consumers have rights under the Code does not, however, necessarily mean that secondary victims are not aggrieved persons. Their grievance would, however, have to relate to a breach of the Code with regard to a consumer as defined in the Code. As noted above at [12], it may have been contemplated that the ability of those closely associated with health consumers to claim damages could enhance the rights of health consumers. It is thus not necessarily inconsistent with the scheme of the Act that those closely affected by breaches of the Code have similar rights to health consumers.

Mr P’s case

[27]     The plaintiff’s case is, therefore, that secondary victims have derivative rights which originate with a  primary consumer.   Derivative consumers’ or secondary consumers’ rights come from a source other than themselves, the primary consumer (and are therefore derived).  These rights are in addition to the rights of the primary consumer.

[28]     At cl 4 of the Code “consumer” is defined in this way:

consumer  means a health consumer or a disability services consumer; and, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10, includes a person entitled to give consent on behalf of that consumer

[29]     Thus,  a  “consumer”  includes  a  person  who  is  not  in  a  direct  sense “consuming” health services but is acting instead of the health consumer.   Claims may be made by those representing a consumer’s estate when the consumer has died or by a person who acts for a consumer who cannot act for themselves.

[30]     The  plaintiff says  the  Court  of Appeal  in  Marks  intended  to  extend the definition of aggrieved person beyond those directly or indirectly identified as consumers to those whose rights may arise from the closeness of a relationship with a primary consumer in circumstances where breaches of the Code are alleged.

[31]     In this case Mr P had the closest relationship in law and in fact with Mrs P, both by the fact of his marriage to Mrs P, and by his presence at and involvement in decision making with respect to the pregnancy both leading up to and at the birth. This closeness, the plaintiff says, qualifies him as a derivative consumer and in the circumstances as an aggrieved person.  His consumer “rights” are derived from his wife who is the primary consumer.  If this approach is adopted the plaintiff says he is an aggrieved person.

Discussion

[32]     The discussion of this issue in this Court must begin with the primary finding of the Court of Appeal in Marks.  That finding is that only consumers with rights under the Code can be aggrieved persons under the HDCA.  This would, on its face, disqualify Mr P from bringing any damages claim to the HRRT.  Mr P was not on this occasion in any direct sense a consumer with rights under the Code.

[33]     The  Court  in  Marks  pointed  out  that  the  HDCA  intended  to  define  an aggrieved person wider than a health consumer (as defined in the HDCA).  A health consumer was  limited to  those  on  whom  a  medical  procedure was  carried out. However, an aggrieved person would include those who exercised consent rights for consumers who could not do so and executors of the estate of consumers.

[34]     However, these persons, who are effectively “in the shoes” of the consumer are in  quite a different  category than derivative consumers.   These persons are exercising consumer rights because the consumer cannot do so.  This explains their status as consumers.   But they are in a quite different situation than derivative or secondary consumers.

[35]     The Court of Appeal in Marks appears to distinguish these persons who act as the primary consumer from the fathers of the babies who they describe as “derivative

consumers in their own right”.14

14 At [63].

[36]     Mr P was not in the shoes of the primary consumer, here, his wife.  Mrs P in this case was able to make decisions for herself.  The fact that a mother may or may not discuss with a father the various medical alternatives available at birth that may be  relevant  does  not  mean  that  the  father  is  making  decisions  or  that  he  is  a consumer.  He receives no medical care or procedure.

[37]   The reference at [63] in Marks to fathers potentially being “derivative consumers in their own right and thus aggrieved persons” was made in the context of an observation about the recognition of fathers’ increased role in the course of a woman’s pregnancy and the birth process. The rationale at [63] seems to be that given this increased role, fathers should have consumer rights in their own right, derived from the mother of the child who will typically be receiving medical care at birth. In these circumstances the father would have consumer rights under the Code and could himself complain about any breach of his rights under that Code. Where there is a breach of Code obligations toward the father, then the plaintiff’s case is that he may bring proceedings as an aggrieved person.

[38]     I  consider  that  there  are  practical  and  principled  objections  to  such  an approach and to such an extension of the meaning of aggrieved persons.

[39]     First there are logical reasons for defining aggrieved persons as including those who are exercising rights on behalf of a consumer and the executors of a consumer’s estate.  As I have noted both are effectively in the shoes of a consumer. This is a logical extension of the narrow definition of health consumer.

[40]     A father involved in the pregnancy process and birth is in a quite different situation.  The father’s claim to be an aggrieved person arises not from being in the consumer’s shoes but from his relationship with the pregnancy, birth and birth mother.  His derivative claim, if it exists, will have to “derive” from the mother as the primary consumer.  For example, in this case the Code breaches relating to Mrs P all occurred before the baby’s birth.  And so the primary health consumer would be Mrs P and not the baby.   Mr P’s derivative rights would, therefore, have to arise from Mrs P.

[41]     As to pregnancy and birth there will be many occasions where the father plays little or no part in the process of pregnancy and birth but might still suffer mental anguish when a child has significant birth defects.  Close relatives or friends may provide as close a relationship with the pregnant woman as an involved father. Are they to be included or excluded as aggrieved persons, and if excluded, on what basis?  Why is pregnancy and birth the sole focus of the caveat to the general rule. What of a husband or wife supporting their seriously ill spouse?  Do they qualify? How close does a relationship have to be before it qualifies?

[42]     I note that the plaintiffs in Marks, the parents of a health consumer, were considered not to be aggrieved persons.  It would be absurd if the HDCA to grant a father aggrieved person status during birth, only for him to lose it immediately after the child’s birth.

[43]     Given the likely significant differences between the involvement of fathers in the process of pregnancy and birth, an individual fact-based assessment would have to be made on each occasion as to whether, given what the father had done, he could be  considered  to  have  derivative  consumer  rights.    This  would  inevitably be  a retrospective assessment based on what the father actually did.  I do not consider, as the plaintiff claimed, that such an approach somehow diminishes the father’s role at birth.  The reality is the father is not subject to any medical intervention (unlike the mother and child) at birth.   And even if the father is closely involved with the mother’s decision making process he is not able to make decisions about medical care for the mother (unless the mother is unable to do so).  The father has the right to complain about breaches of the Code as they affect the mother and child.

[44]     In such circumstances how would those who have responsibilities to comply with the Code know who their consumers were?  The health professionals will know who is a health consumer but they will not know who is a derivative consumer.  How then  would  health  providers  comply  with  the  Regulations  which  oblige  health

providers to:15

15     Health  and  Disability  Commissioner (Code  of  Health  and  Disability  Services  Consumers’

Rights) Regulations 1996, sch, cls 1 and 2.

(3)     (a)   inform consumers of their rights; and

(b)   enable consumers to exercise their rights

where at the relevant time the provider will not know who a derivative consumer is?

[45]     The plaintiff submits that given the HDCA permits any member of public to complain about a Code breach, Parliament may have intended to widen the class of those who may claim damages to those closely associated with consumers.16    The plaintiff says that protection of consumer rights will be enhanced if those in close association with consumers are also able to claim damages.

[46]     Ensuring anyone who believes there has been  a breach of the Code can complain provides broad consumer protection.   Indeed it would seem especially narrow to limit the ability to complain about Code breaches to consumers.  However, the right to claim damages is in a quite different category than the right to complain.

[47]     The law has always provided for a restricted range of persons who could sue in such circumstances.  And so does the HDCA.  I consider there is nothing in the statutory aim of enhancing consumer rights which clearly requires such an expansion of the definition of aggrieved persons.

[48]     Nor is it clear from the plaintiff’s case (nor from the Court of Appeal’s judgment in Marks) whether Code breaches for a derivative consumer are limited to Code breaches suffered by the primary consumer.   It is also unclear whether any damages would flow from the effect on a derivative consumer themselves or whether the derivative consumer is entitled to claim breaches of the Code as they affect the derivative consumer only but arising from the facts of the primary consumer’s Code breaches  (if  any).    Does  the  secondary  consumer  have  rights  to  pursue  Code breaches if the primary health consumer has suffered no Code breach?  Further, there is  real  potential  for  conflict  between  primary  and  derivative  health  consumers’

rights.

16     Marks v Director of Health and Disability Proceedings, above n 9, at [13].

[49]     In my view these questions and difficulties illustrate that Parliament could not have intended to extend the meaning of aggrieved persons beyond those who are defined as consumers or those who are acting for those consumers because they are unable to act for themselves, either through incapacity or death.

[50]     I am satisfied that Mr P is not an aggrieved person for the purpose of the HDCA.  He could not, therefore, bring a damages claim in his own right for a breach of the Code as a derivative consumer.  This conclusion means that despite Ms F’s negligent failure to bring his appeal (from the HRRT decision to the High Court) Mr P has suffered no loss.  I consider his appeal from the HRRT to the High Court could not have succeeded.  And it follows these proceedings cannot succeed.

Costs

[51]     Should  the  defendant  seek  costs  a  memorandum  should  be  filed  within

14 days. The plaintiff will then have a further 14 days within which to respond.

Ronald Young J

Solicitors:

Kensington Swan, Wellington

McElroys, Auckland