Q v Accident Compensation Corporation - [2017] NZHC 3024

REMINDER: PURSUANT TO S 160(1)(B) ACCIDENT COMPENSATION ACT 2001 THERE IS A SUPPRESSION ORDER FORBIDDING PUBLICATION OF THE APPELLANT’S NAME AND ANY DETAILS THAT MIGHT IDENTIFY THE APPELLANT

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-628 [2017] NZHC 3024

BETWEEN
Q

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 29 November 2017

Appearances:

J P Miller for Applicant
A K Miller for Respondent

Judgment:

7 December 2017

JUDGMENT OF CHURCHMAN J

[1] The applicant in these proceedings has cerebral palsy. This is a debilitating condition caused by abnormal development or damage to parts of the brain that control movement, balance and posture.

[2] There is agreement among the medical specialists who have considered this case that the applicant’s cerebral palsy resulted from events that occurred either prior to or shortly after his birth. The applicant was born by emergency caesarean section at 31 weeks’ gestation on 25 May 2000. The reason for the emergency caesarean was
placental abruption (the separation of the placenta from the uterine wall during

Q v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 3024 [7 December 2017]

pregnancy, depriving the baby of oxygen and nutrients and causing heavy bleeding in the mother).

[3] The legal issue for this Court to determine is whether the applicant sustained a personal injury caused by medical error or medical mishap as those terms were defined under the Accident Compensation Act 2001 (the Act).

[4] This Court is now the third court to have considered these issues, with

Judge Powell having delivered a decision on the substantive matter on 30 September

2015 and Judge Sinclair having dismissed under s 162 of the Act an application for leave to appeal Judge Powell’s decision on 26 June 2017.

[5] In the situation where the Court appealed from has refused leave under s 162 an applicant applying for special leave will normally need to demonstrate both that there is an issue of principle at stake and a question of law capable of bona fide argument, but also that there is some “extraordinary factor” that has not been taken into account by the Court below.1

[6] Judge Powell made an order permanently suppressing the applicant’s name on

30 September 2015 and for that reason I will refer to the applicant either as the applicant or Master Q.

[7] Aware of the high legal threshold for the granting of special leave in this case the applicant’s counsel has proposed what are said to be three questions of law that arise in this case:2

(a) Whether his Honour rejected the specialist medical evidence of the appellant without a clearly articulated and rational basis for doing so;

(b)Whether his Honour engaged in unqualified independent medical conclusion that was not the subject of specialist medical opinion in the
appeal; and

1 Farrelly v Accident Compensation Corporation [2006] NZHC 3153 at [2].
2 Notice of application for special leave to appeal, 14 July 2017 at [2.2].

(c) Whether the District Court, in…

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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Details

Case: [2017] NZHC 3024
Decision Date: 7 December 2017

CaseChat Overview and Summary

The case of Q v Accident Compensation Corporation was an appeal against the decision of Judge Powell who dismissed the claim of a child born with cerebral palsy. The applicant argued that the District Court judge erred in his handling of the medical evidence, specifically that of Dr Broadbent, who changed his opinion from 2002 to 2014, and that the judge should have adjourned the hearing and engaged an independent specialist witness. The High Court of New Zealand found that the District Court judge did not err in his handling of the medical evidence and that there was no requirement to adjourn the hearing. The judge's findings were supported by the evidence of the medical specialists, including Dr Broadbent's own initial comments. There was no basis for pleading the need for an adjournment, nor was the Court obliged to provide Dr Broadbent with an opportunity to comment further on the issues Judge Powell raised in his decision. The application for special leave to appeal was dismissed.

Orders