Reilly v Accident Compensation Corporation
[2023] NZHC 10
•12 January 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000579
[2023] NZHC 10
BETWEEN ALEXANDER REILLY
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 3 November 2022
Submissions: 28 November (AVL)
Appearances:
J P Miller for Appellant
J P Coates for Respondent
Judgment:
12 January 2023
JUDGMENT OF GRICE J
Re leave to appeal to Court of Appeal
REILLY v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 10 [12 January 2023]
Introduction
[1] This is an application for leave to appeal against a judgment dismissing an appeal (the High Court decision) against a decision of the District Court (the District Court decision).1 The District Court decision had dismissed an appeal against the decision of a Statutory Reviewer (the Statutory Reviewer’s decision).
[2] The effect of the High Court decision and the District Court decision was to uphold the original determination made by the Accident Compensation Corporation (the Corporation) declining cover to Mr Reilly (the appellant) for a claimed treatment injury.
[3] Mr Reilly had suffered ongoing effects resulting from Guillain-Barre Syndrome (GBS). The particular issue in relation to the appeal was the delay in treatment, which was said to be the “treatment injury”.2
[4] It was accepted by the Corporation that there had been an unacceptable delay of some seven-and-a-half to eight hours in getting Mr Reilly to Nelson Hospital to start treatment for the syndrome. The delay was due to incorrect medical advice given by an out-of-hours medical centre helpline that Mr Reilly’s mother had contacted for assistance.
[5] Diagnosis and appropriate treatment followed once Mr Reilly was at hospital. He spent three months in the Intensive Care Unit at Christchurch Hospital, where he had been airlifted to from Nelson Hospital. He was subsequently treated for some months at a specialist unit at Burwood Hospital in Christchurch.
[6] Mr Reilly continues to suffer severe effects from the syndrome, including tetraplegia. As the District Court noted, any predicted final outcome of Mr Reilly’s
1 Reilly v Accident Compensation Corporation [2022] NZHC 1008 [the High Court decision], dismissing an appeal against Reilly v Accident Compensation Corporation [2020] NZACC 158 [the District Court decision]. Leave to appeal the District Court decision to the High Court was granted in Reilly v Accident Compensation Corporation [2021] NZACC 140 [the leave judgment]. The present application for leave to appeal was heard over two days, on 3 November 2022 in person and 28 November 2022 by AVL.
2 The High Court decision, above n 1, at [4].
illness “must be guarded”, but he “may show more improvement in the next 2 or 3 years, although there could be some residual disability.”3
[7] The Corporation has not accepted the delay in treatment as a “treatment injury”. The Corporation has declined the claim on the basis that the delay was not causative of the serious effects of the syndrome on Mr Reilly, nor did the delay in treatment increase the severity of the effects of the syndrome.
[8] The focus of the appeal in the District Court and in the High Court was therefore whether the treatment failure, being the delay in treatment, was causative of the severity of Mr Reilly’s tetraplegia or of the GBS/neurological injury he suffered.
[9] In my judgment on the appeal, I noted that Mr Miller, for Mr Reilly, had indicated he did not advance the appeal on the basis that there should be a different test for causation in the case of “rare, severe and biologically not well understood by medical science” conditions such as GBS.4 Mr Coates, for the Corporation, however, in the course of argument said he had been under the impression that the appellant was intending to argue there should be a different test for causation to that laid out by the Court of Appeal in a number of earlier decisions, including Atkinson and Ambros.5 I noted:
[28] Mr Miller indicated he had not intended to argue for a different test for causation in such situations. He advanced the appeal on the basis of the terms of the approved question of law stated above, which was whether the District Court misconstrued the test for causation and/or incorrectly applied that test in relation to the treatment injury claim.6
[29] Mr Coates, for the respondent, said the Judge had correctly applied the legal test for causation, as articulated by the Court of Appeal. While ultimately Her Honour’s reasoning was succinct, she had nevertheless traversed the relevant tests and applied them to the evidence before her.
[10] In the application for leave to appeal, Mr Miller submitted that both the District Court and High Court had “not correctly identified or applied the Ambros test in its entirety to the facts of Mr Reilly’s case”. He submitted this was an error of law,
3 The District Court decision, above n 1, at [54].
4 The High Court decision, above n 1, at [27].
5 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR 374 (CA); and Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
6 The leave judgment, above n 1, at [8].
“especially in view of the example caselaw contained within Ambros”. He submitted the legal approach for considering causation based on Ambros requires that the Court:7
(a)not be limited to expert (medical) witness evidence;
(b)consider other medical evidence;
(c)consider lay evidence;
(d)consider statistical evidence;
(e)apply a commonsense presumptive inference to the sequence of events (ie proximity);
(f)allow for a robust inference of causation in individual cases where medical science is prepared to say that there is a possible causative connection;
(g)apply a generous and unniggardly approach to drawing of a robust inference.
[11] In oral submissions Mr Miller said that the appeal was to be pursued on the basis that aspects of causation from Ambros may not have been considered by the District Court. He said that even where medical science says there is only a “possible connection” between the medical condition and the treatment injury (in this case delay), the Court can find “probable causation” by looking at all the circumstances. Mr Miller pointed out that the District Court Judge did not list all the factors that were to be looked at as set out under the Ambros framework.
Background
[12] It is not necessary to set out the factual background in detail.8 The Corporation accepted that delay in treatment could amount to a treatment injury for the purposes
7 Ambros, above n 5, at [65]–[70].
8 The background is well set out in the District Court decision, above n 1.
of cover under the Accident Compensation Act 2001 (the Act). In this case the delay was seven-and-a-half to eight hours.
[13] The diagnosis at Nelson Hospital was “Lower motor neurone dysfunction … Guillain Barre Syndrome, acute motor axonal neuropathy type”.9
[14] Dr Balraj Singhal, who was treating Mr Reilly at the Burwood Spinal Unit, lodged a treatment injury claim with the Corporation on 5 October 2017. The treatment injury claim was based on the delayed diagnosis of GBS. Details of the injury were listed as “Campylobacter Guillain-Barre syndrome with clear evidence of delayed diagnosis”.10
[15] In brief, Dr Singhal reported to the Corporation that the delay in diagnosis was arguably causative of a direct contribution to Mr Reilly’s level of disability. The District Court Judge noted Dr Singhal’s evidence about the effect of the delay in diagnosis as follows:11
[41]Dr Singhal … states:
…
It seems likely that if … appropriate advice [was] given, his already concerned parents would have immediately taken him to Nelson Hospital to arrive before 9 pm on the 16th.
It also seems likely that, as happened on the subsequent day, his condition would have been quickly diagnosed at Nelson Hospital. Medical literature which discusses the treatment of Guillain-Barre typically emphasises the appointment [sic] of timely and accurate diagnosis following early initiation of appropriate treatment. It can be argued that the avoidable delay in recognising the seriousness of [Mr Reilly’s] condition and consequent delay in commencing appropriate treatment for Guillain-Barre … contributed directly to [Mr Reilly’s] level of disability.
[42] In his report, Dr Singhal also included a medical article about Guillain-Barre syndrome.
9 At [25].
10 At [33].
11 Dr Singhal provided a further report for Mr Reilly dated 26 November 2018, which was provided before the review hearing but after the report of the Complex Claim Panel.
[16] As the District Court Judge noted, the Corporation obtained further medical evidence from two experts, who gave their evidence in reports as follows:12
(a)Dr Brian Dwyer, an infectious disease specialist, said that he did not consider it “at all likely” that any treatment (immunoglobin or plasmapheresis) administered on the evening he was diagnosed would have been likely to have kept Mr Reilly out of intensive care or off a ventilator.13 He said it was “not possible to confidently state” that it was more likely that with treatment started 12 hours earlier, there would have been an influence on the duration of disability or resumption of mobility or degree of independence.14
(b)Dr Ian St George, a general practitioner, also gave advice to the Corporation. He also took the view that there was “no evidence that earlier treatment would have improved the outcome.”15
[17] The Corporation’s Complex Claim Panel also completed a report, in which it concluded that there was no evidence that the earlier treatment would have improved the outcome.16
[18] The Corporation’s review took place on 1 February 2019. On 7 February 2019, the Reviewer issued their decision dismissing the review.17 The Reviewer stated there was “insufficient evidence” to enable them to infer that the appellant’s condition “probably would have been better … but for the eight hour delay in the treatment of his GBS.”18
[19] The appeal to the District Court followed. Having traversed the review decision and the medical reports, the Judge found the Corporation was correct in stating there was “no evidence to suggest the delay in the diagnosis had an influence
12 At [48]–[58].
13 At [54].
14 At [54].
15 At [57].
16 At [64]–[67].
17 At [80]–[81].
18 As recorded at [92] (emphasis in original).
on the outcome of the Guillain-Barre syndrome”.19 The Judge found that the decision of the Corporation declining the claim for cover for treatment injury was correct.20
Principles on application for leave to appeal
[20] The principles relevant to granting leave to appeal a High Court decision to the Court of Appeal under s 163(1) of the Act are well-established. In Cullen v Accident Compensation Corporation the Court of Appeal said:21
… The Court will exercise this power if satisfied that there is a serious question of law capable of bone fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.22 Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.23 The primary focus is on whether the question of law is worthy of consideration.24
[21]The respondent submitted that a decision may raise a question of law if it:25
(a)misinterprets, and so misdirects the court on, the law;
(b)overlooks any relevant matter to the proper application of the law;
(c)takes account of any matter which is irrelevant to the proper application of the law; or
19 At [267].
20 At [271].
21 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5]. Although Cullen referred to a special leave application made pursuant to s 163(2) of the Act, the same test applies to applications for leave under s 163(1) and has been applied by the High Court on a number of occasions: Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27], applied in Vodafone New Zealand Ltd v Commerce Commission [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52]; and Matthews v ACC [2019] NZHC 3125.
22 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation HC Wellington AP266/00, 6 July 2001; Khan v Accident Compensation Corporation HC Auckland CIV-2007-485-1632, 14 August 2008 at [5]; Ellwood v Accident Compensation Corporation [2012] NZHC 2887 at [10]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
23 Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].
24 Khan v Accident Compensation Corporation, above n 22, at [5]; and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].
25 Bryson v Three Foot Six Ltd, above n 21, at [24]–[27], applied in Vodafone New Zealand Ltd v Commerce Commission, above n 21, at [51]–[52]; and in the accident compensation jurisdiction in Matthews v ACC, above n 21.
(d)reaches an ultimate conclusion on the facts which is insupportable because proper application of the law requires a different answer.
The appellant’s submissions
[22] In applying for leave to appeal, Mr Miller for Mr Reilly does not argue that there is a different test for causation in cases of unusual or rare treatment injuries. Neither was that an argument pursued in the appeal. Indeed, the Court of Appeal rejected such an argument in Ambros, the Court noting that modifying the traditional test of causation to deal with evidential uncertainty would arguably create as many difficulties as it solves because of the uncertain scope and the absence of any overarching principle.26
[23] In summary, Mr Miller submitted that “although [the High Court] identified the mere risk of causation under Ambros was not sufficient”, there were circumstances where the Court of Appeal would have allowed an increased risk to be determinative.
He referred in this respect to the following passage in Ambros:27
[32] To the extent that McGhee treats the increase in risk as equivalent to a material contribution to injury as a rule of law, it must be seen as contrary to Atkinson and thus not applicable in New Zealand in so far as the assessment of causation under the accident compensation regime is concerned. However, it may still have relevance if it is seen as a case where the court was prepared to draw a robust inference of causation. As Khoury says at p 214, material increase of risk does in fact fit squarely within inferential reasoning, which typically infers from a known fact (for example, the increase in risk) the existence of an unknown fact (for example, material contribution). Whether the inference will be drawn would, however, depend on the totality of the circumstances. Professor Stapleton makes a similar point. She posits the situation where a particular surgical error more than doubles the risk of post-operative cardiac arrest. Where the error is made and post-operative arrest occurs, then, in her view, a court would be entitled to infer causation because the error has added more than the existing risk (see Stapleton, “Scientific and Legal Approaches to Causation”, in Freckelton and Mendelson (eds), Causation in Law and Medicine (2002) 14, p 22 (see paras [65] – [70] below)).
[24] Mr Miller submitted that the circumstances of this case demanded a robust inference, and mere risk of causation could apply as opposed to an assessment on the balance of probabilities, “especially if there was a significantly increased risk”.
26 Ambros, above n 5, at [35].
27 Emphasis added.
[25] The appellant submitted that the Court could, in the case of failure to treat, rely on statistics as evidence in a particular case, although this was always dependent on the quality of the statistics. Statistical evidence might provide evidence of possibility “which might translate into the requisite degree of probability, depending on the strength of that statistical evidence and any other relevant evidence pointing to causation”.28
[26] I have noted above (at [10]) the additional factors identified in Ambros which Mr Miller suggested could apply.29 Mr Miller said that in cases of “failure to treat” the patient is automatically at an evidential disadvantage through the actions of the treatment provider. He suggested in reliance of the factors from Ambros that the Judge could take into account “lay evidence” and “common sense” as well as “common experience”. He submitted these were valid factors for a Judge’s “general impression of the sufficiency of the lay and scientific evidence to meet the required standard of proof”.30
[27] Mr Miller also noted the Court of Appeal in Ambros had referred with apparent approval to District Court accident compensation decisions where the balance of probabilities overall was met despite scientific uncertainty.31
[28] Mr Miller submitted that the District Court Judge had not sufficiently considered the Ambros causation test and the evidence. He said there was “simply no indication” that the Judge had “even attempted to apply a generous and unniggardly approach to the drawing of a robust inference of causation in a failure to treat case.”
[29] Mr Miller highlighted the evidence of Dr Singhal, who had treated Mr Reilly at Burwood Hospital. Dr Singhal said the experience of Burwood Spinal Unit was that “every hour, every day is important in preventing a neurological sequalae and the patients who have been diagnosed and treated earlier have a better neurological
28 Relying on comments of the Court at [73] and [76].
29 At [65]–[70].
30 At [65] and [68].
31 At [69], referring to Dais v Accident Compensation Corporation DC Wellington 178/2002, 5 August 2003; and Estate of Albert Francis McQueen v Accident Compensation Corporation DC Hamilton 190/2005, 28 June 2005.
outcome.”32 Dr Singhal said they saw approximately four to five cases of GBS with severe neurological sequalae each year and the common theme in most of them was delay in diagnosis.
[30] Mr Miller emphasised the “overarching conclusion” from Dr Singhal’s report that “practical experience and extrapolation from analogous studies support that earlier treatment – even measured in hours – will affect the level of neurological sequalae and that this is also the case with Mr Reilly.” Mr Miller submitted that “as a matter of common sense, this appears even more relevant to the more acute version of GBS where increasing deterioration (and even death) is measured in hours not days.” As he stated, “[t]he damage is being done at a faster rate of knots so every hour (if not minute) to diagnose and arrest that damage is vital.”
[31] Mr Miller said the District Court Judge mentioned Ambros but did not acknowledge that in a failure to treat situation (as in Ambros), given the limited academic studies, Dr Singhal’s practical experience of over 10 years with GBS patient recovery was “the most compelling expert evidence available to the court.” Mr Miller submitted that “absent academic studies, his practical experience evidence becomes the primary medical evidence.” Mr Miller said the Judge also ignored Dr Singhal’s use of analogous literature studies to extrapolate a pattern of earlier treatment having better recovery outcomes. Mr Miller said this presented an example of the use of a statistical pattern, which was an approved approach in Ambros. However, Mr Miller submitted, the District Court Judge focused on the studies not meeting the balance of probabilities test because of the lack of definitive timeframes comparable to that in the present case.
[32] Mr Miller said the glaring omission by the Judge in terms of the Ambros test for legal causation was in not accepting the evidence that could move possible causation to probable causation, which was particularly important here given that Dr Singhal himself referred to probable causation.
[33] Mr Miller indicated the question for leave to appeal could be further refined as follows:
32 The District Court decision, above n 1, at [75].
Does Ambros require a generous and unniggardly approach to the drawing of a robust inference especially in cases of failure to treat especially where the original opportunity to determine the medical outcome was lost by the actions of the treating medical professionals?
[34] Mr Coates, for the Corporation, sought the opportunity to respond to the reformulation of the question.33 In his subsequent submissions (limited to that issue) Mr Coates said the reformulation of the question took the matter no further. As he submitted, the Court of Appeal in Ambros had rejected the suggestion that the “generous and unniggardly” approach could be used to modify the causation test. The Court of Appeal said while the generous and unniggardly approach might support the drawing of “robust” inferences in individual cases:34
… [i]t must, however, always be borne in mind that there must be sufficient material to point to proof of causation on the balance of probabilities for a court to draw even a robust inference on causation. Risk of causation does not suffice.
[35] In my decision, I noted that the “generous and unniggardly” approach has not been universally embraced in any event.35
Analysis
[36] In turning to my analysis of the leave to appeal application, I deal first with the argument that the Judge at first instance failed to articulate and apply the factors listed in Ambros when considering causation.
[37] Mr Miller submitted that the Judge did not take into account the seven factors from the framework set out in Ambros, which I have listed above. These indicated that the relevant medical evidence, lay and statistical evidence must be taken into account, and supported a common sense approach including a “presumptive inference to the sequence of events (ie proximity)” and a robust inference of causation where medical science is prepared to say there was a “possible” causative connection.
33 Leave was granted without opposition.
34 At [70].
35 The High Court decision, above n 1; and see McKeefry v Accident Compensation Corporation [2019] NZHC 612, in which Cooke J noted (at [8]) he did not find the additional verbal formulation of “generous and niggardly” to be helpful.
Mr Miller emphasised that the application required a “generous and unniggardly approach to drawing of a robust inference”.
[38] However, I note that a robust inference cannot be drawn, even on a “generous and unniggardly approach” without some relevant evidence that can be relied upon to move causation from “possible” to “probable”. As the Court of Appeal put it, while the Court is entitled to draw “robust” inferences, there must be sufficient material which points to proof of causation on the balance of probabilities.36 The risk of causation will not suffice.37
[39] The medical evidence, apart from that of Dr Singhal, did not support the proposition that the treatment delay of seven-and-a-half to eight hours exacerbated the consequent level of disability. Mr Miller agreed in his oral submissions there was no relevant lay evidence. Therefore, the only other evidence was the research evidence or, as Mr Miller described it, the “statistical evidence”.
[40] The Judge in the analysis reviewed the evidence of Dr Dwyer, Dr Singhal and Dr St George. The Judge also considered the research and articles which had been referred to by those doctors. The Judge concluded that nothing in that material indicated that “GBS or the symptoms Dr Singhal relies on as causing [Mr Reilly’s] medical outcome arise from a delay of identification or commencement of treatment within seven and a half hours, or in fact any specific time period.”38 The Judge then looked at the expert evidence of Dr Dwyer, who was an infectious disease expert and so had expertise in relation to the onset of GBS and its progression. The Judge found that Dr Dwyer’s evidence, supported by that of Dr St George, was to be preferred to that of Dr Singhal.39
[41] The District Court Judge had set out the Court of Appeal’s causation test in Ambros.40 The Judge quoted the comments of the Court of Appeal that the only time the Judge may not draw a robust inference of causation are “cases where medical
36 Ambros, above n 5, at [70].
37 At [70].
38 The District Court decision, above n 1, at [241].
39 At [257].
40 At [114].
science says that there is no possible connection between the events and the injury or death”.41
[42] Mr Miller, for Mr Reilly, said this reference by the Judge was in the context of referring to submissions by counsel, and preceded the Judge’s analysis. However, the analysis was based on the earlier review of the evidence and the law the Judge had carried out, which shows they had in mind the comments in Ambros. The Judge did not merely accept the evidence of Dr Dwyer, but rather looked at the research, which did include some statistics. However, the statistics did not support the proposition that causation was probable. Rather, they indicated that treatment in the first five days from symptom onset more than halved the hospital stay (as a proxy for seriousness) compared to a group which received no treatment.42 The Judge made no error when concluding this provided no reliable statistical basis for a “robust interference of causation … where medical science is prepared to say there is a possible causative connection.”43
[43] Mr Miller emphasised that a temporal connection may also be an important factor in establishing a reasonable inference by the application of common sense, namely that once Mr Reilly had contracted GBS it would move rapidly to damage his system, and thus the more time it was causing damage the more long-term damage would remain, even where the delay in treatment was merely hours.
[44] The Court of Appeal in Ambros referred to the relevance of the temporal factor.44 It gave the example of the vaccination cases where if a person suffers an allergic reaction just after being injected, if the reaction is a known risk from the injection then “in the absence of a supervening cause, a court would almost certainly infer causation.” 45 However, that would not suffice for instance if the reaction was not a known possible result, particularly when there were other possible causes for the reaction.46
41 At [114], quoting Ambros, above n 5, at [68].
42 At [252] and [254].
43 As the appellant framed it in his submissions.
44 Ambros, above n 5, at [77]–[78].
45 At [78].
46 At [78].
[45] Mr Miller also referred to Dais and Estate of Albert Francis McQueen, both of which were referred to in Ambros and were said to provide illustrations of a relevant temporal connection.47 In Dais the applicant developed positional vertigo immediately after brain surgery for a rare congenital brain malformation. In McQueen, the deceased was given an excessive dose of morphine as medical treatment for pain, and died several days later. While two cardiologists had found no more than a possible causal connection, a pharmacologist provided an opinion suggesting it was highly likely the morphine had remained in the deceased’s system, which was sufficient for the Court there to rule the morphine was in fact a probable causative effect “in some material measure.”
[46] In this case, the issue is not the time between treatment and lack of intervening cause. The cause, that is the GBS, had already occurred. The issue here is the time factor, namely the subsequent delay and its effect on deterioration. Mr Miller submitted the delay (even of a few hours) should ground a “presumption” that GBS would progress rapidly, thereby causing long-term damage. However, this was the proposition which the medical evidence accepted by the Judge did not support. The academic research took it no further.
[47] The factors set out in Ambros are not mandatory considerations. The Judge was not required to list all of the factors and deal with them item by item in the analysis. It was enough to identify the relevant factors that may have taken the causation from “possible” to “probable”.
[48] The arguments by the appellant for leave go to the weight which the Judge placed on the evidence. The Judge recognised Dr Singhal’s 10-year practical experience but specifically noted he did not have the experience or relevant expertise of Dr Dwyer, whose evidence was preferred.48 The Judge gave adequate reasons for the conclusion in this respect in line with the standard required.
[49] As I noted in my judgment, when compared to the length of the judgment itself, at 273 paragraphs, the discussion or analysis in the District Court judgment was
47 At [69], citing Dais, above n 31; and McQueen, above n 31.
48 The District Court decision, above n 1, at [257].
relatively brief, with the discussion commencing at [216]. However, this is only a crude measure of the evaluation undertaken by the Judge, and, as I noted, the analysis itself was based on and drew from the detailed information set out earlier in the judgment.49
[50]This Court has recently reiterated the standard for the duty to give reasons in
Maungaharuru-Tangitu Trust v Hastings District Council as follows:50
[21] The standard for the duty to give reasons depends on the particular circumstances and the statutory context. Where there is a straightforward factual dispute, no more may be required than simply stating whether the Judge believes one witness over another.51 Where the dispute is more complex with reasons and analysis on either side, the Judge must engage with the issues, analyse the evidence and make reasoned findings. Reasons might be abbreviated and evident without express reference.52 But generally, reasons ought to state the material findings of fact and evidential support and must tell the parties why they lost or won.53 The reasons should be sufficient to enable those affected to understand why the decision was made and to be satisfied it was lawful.54
[22] Whether or not sufficient reasons are given depends on the legal question, and complexity of the legal issue. In some contexts a court or tribunal is required to engage in a particular analysis. It is only by the reasons given that it can be seen that the required analysis has been undertaken …
[51] While the District Court Judge’s analysis may have been succinct, it was sufficient to enable an appellate Court to understand the “intellectual route taken” by the decision-maker, in the words of Baragwanath J in Murphy v Rodney District Council.55
[52] In relation to the evidence before the District Court Judge, Mr Miller also submitted that Dr Dwyer’s comment in his report that earlier treatment would have
49 The High Court decision, above n 1, at [51]. That paragraph erroneously refers to the “preceding 236 paragraphs” rather than the correct figure of the preceding 215 paragraphs, given the discussion commenced at [216] of the District Court decision. The analysis from the heading “Discussion” at [216] to the end was 58 paragraphs.
50 Maungaharuru-Tangitu Trust v Hastings District Council [2019] NZHC 2576.
51 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA) at 382.
52 Housing New Zealand v Auckland Council [2018] NZHC 288, (2018) 20 ELRNZ 441 at [81].
53 Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 at [70], citing Stanley De Smith, Harry Woolf and Jeffrey Jowell Judicial Review of Administrative Action (5th ed, Sweet & Maxwell, London, 1995) at [9-049].
54 At [73], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [80].
55 Murphy v Rodney District Council [2004] 3 NZLR 421 (HC) at [25]; and see Primeproperty Group Ltd v Wellington City Council [2022] NZHC 1282 at [9].
kept Mr Reilly “out of the intensive care or off the ventilator” was not, as the Judge described it, “compelling evidence”, and was not relevant to the appeal issue of whether earlier treatment would have lessened the severity of the neurological injury. However, this takes Dr Dwyer’s comments out of context. As Dr Dwyer went on to state:
It [that is, treatment administered that evening] may have had an influence on duration of disability or resumption of mobility or degree of independence, but it is not possible to confidently state that it is more likely that with treatment started 12 hours earlier. The data is just not there.
[53] A further criticism is made of the Judge’s reference to there being no medical evidence or literature which “supports that in all probability [Mr Reilly’s] condition would have improved or been shortened if he had arrived at the hospital and/or been treated a few hours earlier”.56 Mr Miller submitted that for the Ambros legal causation test to be satisfied “probability” was not required, but only a “possible medical evidence connection”. In this case, however, the relevant evidence was the expert medical evidence and the medical literature. It was no error for the Judge to refer to that evidence together not providing probable causation.
[54] Finally, the appellant points to the “glaring omission” by the District Court Judge in failing to find “probable” causation through a combination of Dr Dwyer’s comments that earlier treatment “may have had an influence on duration of disability or resumption of mobility or degree of independence” and the view of Dr Singhal that the delay amounted to “probable” causation. However, that again takes Dr Dwyer’s comments out of context. The Judge made no error in their assessment.
[55] The Court of Appeal in Ambros rejected a formulation of the causation test in cases of scientific uncertainty which lends to an obligatory presumption in favour of the applicant that the courts must make “as a matter of law, when certain facts exist and in the absence of conflicting evidence”.57 It is for the Court to make the finding as to causation based on the evidence before it. This is what the Judge did. Reasons for preferring the expert evidence of Dr Dwyer and Dr St George were given — and that of Dr Dwyer in particular. The Judge also considered factors which might support
56 The District Court decision, above n 1, at [260] (emphasis added).
57 Ambros, above n 5, at [79].
the evidence that delay might be probable causation of the treatment injury in question, as the Judge was required to do in terms of Ambros.
[56] The appellant has not satisfied me there is a serious question of law capable of bona fide and serious argument in this case. Moreover, even if that requirement were met I do not consider that it involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.58 This matter has been through the Corporation’s own review process, which included a hearing, as well as a hearing on appeal in the District Court and argument on an appeal on a question of law to this Court. In the circumstances, the desirability of bringing finality to the litigation weighs in favour of not granting leave, in the interests of justice.
Conclusion
[57]The application for leave to appeal to the Court of Appeal is dismissed.
[58] Counsel indicated that matters relating to costs would be resolved between them. Therefore, I make no determination as to costs.
Grice J
Solicitors:
John Miller Law, Wellington Claro Law, Wellington
58 See Cullen, above n 21, at [5], and the authorities cited therein.
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