Reilly v Accident Compensation Corporation
[2022] NZHC 1008
•12 May 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000579
[2022] NZHC 1008
BETWEEN ALEXANDER REILLY
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 7 April 2022 Appearances:
J P Miller for Appellant
J P Coates and R E Mould for Respondent
Judgment:
12 May 2022
JUDGMENT OF GRICE J
Re appeal
REILLY v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 1008 [12 May 2022]
Contents
Introduction[1]
Background[8]
Treatment Injury [17]
Case law — causation[19]
Legal principles on appeal[24]The appellant’s case[25]
The test for causation[30]
The District Court decision — what did the Judge do?[50]The medical evidence[98]
Conclusion[106]
Introduction
[1] This is an appeal against a judgment of the District Court (the District Court decision) which dismissed an appeal against the decision of a Statutory Reviewer.1
[2] The effect of the District Court decision was to uphold the original decision made by the Accident Compensation Corporation (the Corporation) declining cover to Mr Reilly (the appellant) for a claimed treatment injury.
[3] Leave to appeal was given by the District Court to appeal to the High Court against the District Court decision.2
[4] The treatment injury, the subject of the appeal, was a delay in providing medical treatment. As a result of that delay, Mr Reilly became unwell with Guillain Barre Syndrome (GBS) while holidaying in the Nelson area in January 2017. He was then aged 15 years. The delay was accepted as being 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 through an out-of-hours medical centre helpline that Mr Reilly’s mother had contacted for assistance.
[5] Once Mr Reilly was taken to hospital, he was quickly diagnosed with GBS and treatment followed. However, Mr Reilly was seriously unwell, spending some three months in the Intensive Care Unit at Christchurch Hospital and subsequently being transferred for treatment to a specialist unit at Burwood Hospital in Christchurch. Mr Reilly continues to suffer severe effects from the syndrome, including tetraplegia. According to one medical specialist who has reviewed Mr Reilly’s case, any predicted final outcome of Mr Reilly’s illness “must be guarded.”3 The specialist is of the view Mr Reilly “may show more improvement in the next two or three years, although there could be some residual disability.”4 While the delay in treatment has been accepted by it as being a treatment injury, ACC has declined the claim on the basis that it was
1 Reilly v Accident Compensation Corporation [2020] NZACC 158 [District Court decision]; and Reilly v Accident Compensation Corporation [2021] NZACC 140 [Statutory Reviewer’s decision].
2 Reilly v Accident Compensation Corporation [2021] NZACC 140 [the leave judgment].
3 District Court decision, above n 1, at [54].
4 At [54].
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.
[6] Therefore, the focus of the appeal in the District Court was 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. That is also the focus of the present appeal.
[7] On 17 September 2021, the District Court granted leave to appeal to the High Court against the District Court decision. The question of law was formulated as follows:5
Did the District Court misconstrue the test for causation and/or incorrectly apply that test in relation to the treatment injury claim under ss 20(2)(b) and 32?
Background
[8] The background was set out in some detail in the District Court decision. The Corporation accepted that the treatment delay which could amount to a treatment injury for the purposes of cover under the Accident Compensation Act 2001 (the Act) amounted to some seven-and-a-half to eight hours. The background was summarised in the leave judgment as follows:6
[2] By way of brief summary, the applicant who was then aged 15 had been mildly unwell for several days prior to 16 January 2017. On that day he experienced difficulty in walking and had arm weakness. Reference is made to his legs collapsing while he was walking the dog and that he had to be assisted to his feet. At 8.05 pm on 16 January the applicant’s mother telephoned Healthcare Medical in Motueka. After quite a lengthy discussion with the nurse no immediate steps were taken at that point for the applicant to have a further medical assessment. Just over seven hours later at 3.22 am the applicant’s mother made a second telephone call to Homecare Medical in Motueka. In the intervening period the applicant’s condition had dramatically worsened. He had gone to bed but in the early hours of the morning, immediately prior to this phone call, he was found on the floor unable to move.
[3] An ambulance was called and at 5.05 am on 17 January 2017 he was admitted to Nelson hospital. After a short time including time in the intensive care unit he was flown to Christchurch Hospital and admitted to the intensive care unit there.
5 The references are to the provisions of the Accident Compensation Corporation Act 2001.
6 The leave judgment, above n 2.
[4]His diagnosis at Nelson Hospital was:
Lower motor neurone dysfunction - … Guillain Barre Syndrome, acute motor axonal neuropathy type.
[9] Mr Reilly continues to suffer from tetraplegia and requires assistance in all areas of his life.
[10] Dr Balraj Singhal, who was treating Mr Reilly at the Burwood Spinal Unit, lodged a treatment injury claim with ACC on 5 October 2017. The treatment injury claim was based on the delayed diagnosis of GBS. The injury details were listed as “Campylobacter Guillain-Barre syndrome with clear evidence of delayed diagnosis”.
[11] The District Court Judge referred to Dr Singhal’s comments concerning the delay in diagnosis as follows:
[41] Dr Singhal refers to the transcript from the Home Care of the telephone consultation on 16 January 2017 which he states provides evidence that Alex's mother provided a clear and detailed description of his progressing motor weakness and loss of coordination together with his difficulties with walking and other activities. He states:
… The transcript also confirms that in response, no advice was given to seek immediate medical attention. The central theme of the advice provided appears to be reassurance and encouragement to increase nutrients, particularly protein, while maintaining plenty of fluids.
The symptoms and history that [Mr Reilly’s mother] described presented a classical presentation of Guillain-Barre, or one of a range of other serious mental conditions involving myopathy or neuropathy, poisoning or serious metabolic disorder, any of which would have warranted further, urgent medical investigation … The initial advice provided by the Home Care nurse seems not only inadequate but harmful, and seeking to divert and delay the concerned family’s efforts to obtain competent medical assistance for their son.
It seems likely that if the implications of symptoms had been recognised by a health professionals [sic] who was consulted on 16 January and appropriate advice 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 of timely and accurate diagnosis following early initiation of appropriate treatment. It can be argued that the avoidable delay in recognising the seriousness of Alex’s condition and consequent delay in commencing appropriate
treatment for Guillain-Barre … contributed directly to Alex’s level of disability.
[42] In his report, Dr Singhal also included a medical article about Guillain-Barre syndrome.
[12] The Corporation subsequently obtained a report from Dr Brian Dwyer, an infectious disease specialist, dated 17 December 2017,7 who gave an opinion 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. He said it was not possible to confidently state that it is 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.8
[13] The Corporation also obtained advice from Dr Ian St George, a general practitioner, who confirmed that the homecare nurse failed to recognise Mr Reilly’s symptoms and appropriate advice would have been immediate transfer to hospital.9 Dr St George also took the view that there was no evidence that earlier treatment would have improved the outcome.10
[14] As a result of those medical opinions, the Corporation’s Complex Claim Panel produced a report on 22 March 2018, concluding that there was no evidence that the earlier treatment would have improved the outcome.11
[15] The ACC review took place on 1 February 2019. The decision dismissing the review was issued on 7 February 2019. The appeal to the District Court followed.
[16] The District Court Judge on appeal ultimately preferred the evidence of Dr Dwyer over that of Dr Singhal and concluded that the delay in presenting to the hospital was not causative of a treatment injury. The Judge held that ACC was correct in stating “there is no evidence to suggest the delay in the diagnosis had an influence
7 District Court decision, above n 1, at [48].
8 At [54].
9 At [56].
10 At [57].
11 At [67].
on the outcome of the Guillain-Barre syndrome”.12 The Judge therefore found that the decision of the Corporation, dated 6 March 2018, declining the claim for cover for treatment injury was correct.13
Treatment Injury
[17]“Treatment injury” is defined in s 32 of the Act. It relevantly provides:
32 Treatment injury
(1)Treatment injury means personal injury that is—
(a)suffered by a person—
(i)seeking treatment from 1 or more registered health professionals; or
(ii)receiving treatment from, or at the direction of, 1 or more registered health professionals; or
(iii)referred to in subsection (7); and
(b)caused by treatment; and
(c)not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—
(i)the person’s underlying health condition at the time of the treatment; and
(ii)the clinical knowledge at the time of the treatment.
(2)Treatment injury does not include the following kinds of personal injury:
(a)personal injury that is wholly or substantially caused by a person’s underlying health condition:
(b)personal injury that is solely attributable to a resource allocation decision:
(c)personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.
(3)The fact that treatment did not achieve a desired result does not, of itself, constitute treatment injury.
12 At [267].
13 At [271].
The term “treatment” is defined in s 33 of the Act:
33 Treatment
(1)For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a)the giving of treatment:
(b)a diagnosis of a person’s medical condition:
(c)a decision on the treatment to be provided (including a decision not to provide treatment):
(d)a failure to provide treatment, or to provide treatment in a timely manner:
(e)obtaining or failing to obtain, a person's consent to undergo treatment, including any information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person to make an informed decision on whether to accept treatment:
(f)the provision of prophylaxis:
(g)the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of treatment or subsequently.
(h)the application of any support systems, including policies, processes, practices, and administrative systems, that—
(i)are used by the organisation or person providing the treatment; and
directly support the treatment.
(2)Subsection (1) does not affect the application of the definition of treatment in section 6(1) for purposes other than those stated in subsection (1).
(3)Subsection (2) is for the avoidance of doubt.
Case law — causation
[19] There must be a causal link between the treatment (or failure to treat) and the injury. It has been accepted in case law that there is a difference between the scientific
and medical view of proof and the legal view of proof, and that courts can reasonably infer causation in circumstances where experts may not.14
[20] Two key cases relating to causation in the context of treatment injuries are the Court of Appeal decisions in Adlam v Accident Compensation Corporation and Accident Compensation Corporation v Ambros.15
[21]The Court in Adlam stated:
[61] In the result, we consider the relevant provisions properly construed mean that in order for there to be treatment injury as a result of a failure to provide treatment it is necessary to show that an alternative treatment that would have prevented the injury suffered could and should have been given having regard to the clinical indications at the time of the alleged failure.
[22] In Ambros, the Court of Appeal said that where medical evidence establishes a “possible” connection, this may be sufficient, but the question of causation is ultimately one for the court to decide and the court is not bound by specialist opinion.16 While the court is entitled to draw “robust” inferences in individual cases, there must still be sufficient material which points to proof of causation on the balance of probabilities. A risk of causation will not suffice.17
[23] Ambros has been applied in cases relating to failure to treat in both the Court of Appeal and the High Court.18
Legal principles on appeal
[24] An appeal to the High Court from a District Court decision in an ACC review decision is an appeal on a question of law. The approach to an appeal on a question
14 See Dunn v Accident Compensation Corporation DC Te Whanganui-a-Tara | Wellington 307/03, 27 November 2003; Smith v Accident Compensation Corporation DC Te Whanganui-a-Tara | Wellington 255/04, 23 August 2004 at [26]; and W v Accident Compensation Corporation [2018] NZHC 937 at [56].
15 Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102; and
Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
16 Accident Compensation Corporation v Ambros, above n 15, at [67]–[68].
17 At [70].18 See for example Cumberland v ACC [2013] NZCA 590 at [44]–[50]; Robertson v Accident Compensation Corporation [2015] NZHC 2489 at [41]; Dela Rosa v Accident Compensation Corporation [2019] NZHC 2657 at [59]–[61]; Accident Compensation Corporation v Stanley [2013] NZHC 2765 at [6]; W v Accident Compensation Corporation, above n 14; and Thompson v Accident Compensation Corporation [2015] NZHC 1640 at [38]–[39].
of law was set out in the judgment of Heath J in Accident Compensation Corporation v Stanley: 19
(a) An appeal on a question of law
[33] On appeal to this Court, the question is whether the District Court Judge made errors of law of the type formulated by Judge Beattie. There are different types of legal error. They are addressed in differing ways.
[34] For present purposes, the nature of a “question of law” can be gauged by reference to the analogous provisions of the Employment Relations Act 2000. Delivering the judgment of the Supreme Court in Bryson v Three Foot Six Ltd, Blanchard J observed:
(a)An appeal cannot be regarded as being brought on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. Provided that the Court has not overlooked any relevant matter, or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact- finding Court, unless clearly insupportable.
(b)The ultimate conclusion of a fact-finding body can sometimes be so insupportable, or so clearly untenable, as to amount to an error of law. That will occur when proper application of the law requires a different answer. Such cases will arise rarely; for example, cases “in which there is no evidence to support the determination”, “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.
(c)It does not matter whether an appellate Court would have reached a different conclusion on the evidence. The issue is whether the decision under appeal was a permissible option.
(d)An error concerning a particular fact which is only one element in an overall factual finding cannot be said to give rise to a finding of “no evidence” where there is support for the overall finding in other portions of the evidence. It could, however, lead or contribute to an outcome that is insupportable.
[35]Mr Coates referred to the judgment of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, on the basis that, he contended, this was an appeal by way of rehearing. With respect, Austin, Nichols is not applicable. While s 162(5) of the Act (s 162 confers the right of appeal to this Court) incorporates by reference certain provisions of the High Court Rules and the District Courts Act 1947, none of them turn what s 162(1) describes as an appeal on a question of law into one by way of rehearing. On an appeal brought on a question of law, an appellant is confined to the grounds of attack to which the Supreme Court referred in Bryson, as confirmed in its later decision in Vodafone New Zealand Ltd v Telecom New Zealand Ltd.
19 Accident Compensation Corporation v Stanley, above n 18, at [33]–[35] (citations omitted).
The appellant’s case
[25] The appellant says the facts here present a textbook example of where the Court could have found that the treatment injury (failure or delay to treat) caused the severity and longevity of the damage caused to Mr Reilly by the syndrome.
[26] Mr Miller, for the appellant, said the Court could have found legal causation on the medical evidence available which could establish the possibility of the link between the accident and the injury, or the more severe and long-lived effects of GBS. In particular, Mr Miller relied on Ambros to argue that the District Court Judge failed to step through the process or tests set out in that case. He said that evidence of a well-qualified medical specialist was available which would provide the likely medical causation for the injury. He was referring to the evidence of Dr Singhal, who commenced treating Mr Reilly when he arrived at the Burwood Spinal Unit on 29 March 2017.20
[27] Mr Coates, for the Corporation, said he had been under the impression that the appellant would also argue that there should be a different test for causation to that laid out by the Court of Appeal in a number of decisions.21 This would allow for a less stringent or lower standard for causation in the case of “rare, severe and biologically not well understood by medical science” conditions such as GBS.22
[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.23
[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
20 District Court decision, above n 1, at [32]–[33].
21 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR 374 (CA); and Accident Compensation Corporation v Ambros, above n 15.
22 The leave judgment, above n 2, at [21].
23 At [8].
Her Honour’s reasoning was succinct, she had nevertheless traversed the relevant tests and applied them to the evidence before her.
The test for causation
[30] Mr Miller referred to Adlam, which established that a failure to provide treatment or to provide treatment in a timely manner could amount to a treatment injury and attract cover, and that while not requiring a finding of negligence, a treatment injury will have only occurred where there has been some departure from a standard “and that departure has caused a person injury”.24 Counsel agreed that Ambros and the Court of Appeal earlier decision in Atkinson were the leading Court of Appeal cases governing the issue of causation in circumstances such as the present.
[31] The earlier case of Atkinson v Accident Rehabilitation Compensation and Insurance Corporation,25 held that it was for the complainant to prove causation.26 The Accident Compensation legislation, the Court of Appeal in Atkinson said, focuses on outcomes and not risk of injury or potential for injury.27 The Court went on to say that for cover to exist, the risk must be realised.
[32]The Court of Appeal in Ambros started its analysis with Atkinson. It said:
[12] The main common law development relied on by the appellant in Atkinson was a shift in focus from the cause of the injury itself to the risk of injury resulting from a wrongful act or omission. It was argued that, where this is the case, all the plaintiff has to establish is that the defendant’s conduct was at least capable of causing or aggravating the damage and did in fact materially increase the risk of that damage.
[13] This Court in Atkinson said it was satisfied that the appeal must fail. It held that it was for the claimant to prove causation – see at [23]. The Court said, at [24], that the accident compensation legislation focuses on outcomes and not risk of injury or potential for injury. For cover to exist, the risk must be realised. All that had been proved in the particular case was that there was a possibility (or risk) that the medical misadventure (sub-optimal care during an operation at Wanganui Hospital) contributed to the infant’s injury (brain damage). There may have been other factors also that could have caused the damage. Indeed, the evidential difficulty was more serious. The claimant had not even proved injury. Given his age, experts were not able to assess whether
24 Adlam v Accident Compensation Corporation, above n 15, at [65].
25 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation, above n 21.
26 At [23].
or not the infant’s development had been normal before surgery and become slow after it or whether his development was always going to be slow.
[14] The Court went on to say that it is not sufficient to prove that the medical misadventure risked causing an injury. It must be proved to have done so and to the usual civil standard of balance of probabilities. The Court held that to accept a lesser standard of increased risk or to adopt a reverse onus approach does not accord with the statutory scheme. The public policy considerations, which had led to the common law developments relating to causation, were rejected as being inapplicable to a statutory no fault compensation scheme which is outcome and not risk focused - see at [25] of Atkinson.
[15] While the High Court in this case accepted that causation had to be proved by Mr Ambros, it required him to prove only a close temporal link between the injury and the medical misadventure and to exclude inevitability of injury and supervening cause. This effectively means that, under the High Court test, as long as the injury occurred in close proximity to the medical error, a claimant would have proved causation, absent supervening cause, if there was as little as a one per cent chance of survival had the medical error not occurred.
[16] This falls squarely within the proposition rejected by this Court in Atkinson that a risk or possibility that the medical misadventure caused the injury suffices to prove causation, absent evidence to the contrary. The High Court test does not, therefore, accord with that laid down by this Court in Atkinson. In order to uphold the High Court decision, we would need to depart from Atkinson. The next issue, therefore, is whether we should do so.
(emphasis added)
[33] The Court then went on to confirm that Atkinson had been correctly decided.28 As the Court said:29
… In ordinary usage, one would not normally say that an injury was caused by medical error when that injury was highly likely to have occurred without the error.
[34] The Court went on to set out the test for causation as follows:
What is the traditional test for causation?
[22] Atkinson states that causation must be proved on the balance of probabilities and that a risk of injury does not suffice. The judgment was, however, relatively brief and did not discuss how the courts should assess causation. We discuss the causation issue in more depth below so as to give a proper framework for any decision on causation in this case. In doing this we are also attempting in some measure to answer the plea for more guidance on causation principles by Associate Professor Joanna Manning in Skegg and
28 Accident Compensation Corporation v Ambros, above n 15, at [18].
Paterson (eds) Medical Law in New Zealand (2006) at [24.8.1], although the framework in this case can only be indicative for future cases as it may not assist in different factual circumstances.
[23] Atkinson also held that the developments in the common law (including loss of chance) are not applicable to the accident compensation regime. Again, there was no detailed explanation of why that is the case. It is helpful to discuss the reasons that the earlier developments are not relevant under an accident compensation regime in more depth in this judgment as that puts the later developments since Atkinson in context. We have held, at [19], that those later developments do not give cause to review Atkinson. The discussion of those developments set out below provides a fuller explanation for that decision.
[35] The Court of Appeal in Ambros went on to undertake a detailed analysis of causation and common law developments in the area.30 In the course of that discussion, the Court of Appeal noted 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.31
[36] The Court of Appeal then turned to the call to extend the loss of a chance principles to cover cases of medical negligence.32 It commented:
[38] The loss of a chance of a better medical outcome often arises in cases of delayed, missed or wrong diagnosis leading to a deterioration in the patient’s condition. What must be determined is whether the damage is a result of the doctor’s fault or the normal outcome of the pre-existing condition
– see Laferrière v Lawson (1991) 78 DLR (4th) 609 at 657(h) – 658(a) (SC). The answer, on traditional causation principles, will depend on the patient’s prognosis at the time the correct diagnosis should have been made. If the patient was at that time more likely than not to recover if properly diagnosed and treated, then the faulty diagnosis will be treated as causative. Otherwise it will not be. If it is treated as causative then full damages are recovered and there is no discounting for the chance (which could be up to 49 per cent) that the negligence did not cause the deterioration. If it is not found to be causative, then the plaintiff fails to recover at all.
(emphasis added)
[37] It concluded that whatever the future developments in loss of chance in other jurisdictions, “the loss of chance analysis seems to us to be incompatible with the
30 At [24]–[36].
31 At [35].
accident compensation regime.”33 In relation to the loss of a chance developments, the Court of Appeal noted:34
… In terms of the causation principles set out in Atkinson, any risk must be realised in the occurrence of a personal injury and the personal injury must be proved to have been caused by the risk factor involved. In keeping with this principle, if the omission to treat causes an identifiable added injury, cover would be available for that injury.
[38] The Court of Appeal in Ambros then moved on to examine how the courts had otherwise dealt with the difficulty of proof and uncertainty. It noted:
(a)The frequent difficulty in establishing a causal link between medical error and injury because of scientific uncertainty over the causal mechanism.35
(b)The term “burden of proof” has been used in two quite distinct senses.36 The first is a reference to the legal burden. This must be proven in order to win the case. The second is the evidential burden. The evidential burden, in the first sense, means the burden of adducing evidence on an issue “on pain of having the trial Judge determine the issue in favour of the opponent.”37 The second sense in which evidential burden is used is the burden resting on a party who appears to be at risk of losing on a given issue at a particular point in the trial. That involves a tactical evaluation of who is winning at a particular point, which can shift depending on the trial dynamic. That is often referred to as the “tactical burden”.38
(c)The switching of the legal burden onto the defendant was rejected in
Atkinson.39
33 At [46].
34 At [46].
35 At [53].
36 At [55].
37 At [55].
(d) The shifting of the evidential onus has met with greater acceptance.40 Where for example the facts lie particularly within the knowledge of the defendant, “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary and even though positive or scientific proof of causation has not been adduced”.41 As the Court noted:42
Even if some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account Lord Mansfield’s famous precept in Blatch v Archer …:43
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of another to have contradicted.
(e) Adopting the term “tactical burden”, the Court of Appeal noted that Lord Mansfield’s maxim had been applied in New Zealand in a number of different contexts.44
(f)The legal burden to prove causation, in an accident compensation case remains with the claimant and does not shift to the Corporation.45 Atkinson does not rule out a shift of the evidential burden to the Corporation.46
[39] The Court of Appeal then moved on to discuss inferences in a passage of the judgment on which Mr Miller relied. The Court said:
INFERENCES
[65] The requirement for a plaintiff to prove causation on the balance of probabilities means that the plaintiff must show that the probability of causation is higher than 50 per cent. However, courts do not usually undertake accurate probabilistic calculations when evaluating whether causation has been proved. They proceed on their general impression of the sufficiency of
40 At [57].
41 At [59].
42 At [59] (footnote added).
43 Blatch v Archer [1774] 1 COWP, 98 ER 969 at 970.
44 Accident Compensation Corporation v Ambros, above n 15, at [62].
the lay and scientific evidence to meet the required standard of proof - see Khoury at 35. The legal method looks to the presumptive inference which a sequence of events inspires in a person with common sense …47
[66] The legal approach to causation is different from the medical or scientific approach. In March v Stramare, Mason CJ at 509 in the High Court explained that the scientific concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences whereas in law problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. At law the cause is not the sum of the conditions which are jointly sufficient to produce the occurrence.48 …
[67] The different methodology used under the legal method means that a court’s assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has allowed the court to draw robust inferences of causation in some cases of uncertainty – see at [32] above. However, a court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture49 … Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based on the whole of the lay, medical, and statistical evidence, and not be limited to expert witness evidence …50
[68] Spigelman CJ in Seltsam said that the only time that a Judge is not able to draw a robust inference of causation are cases where medical science says that there is no possible connection between the events and the injury or death – see at 275. If the facts stand outside an area in which common experience can be the touchstone, then the Judge cannot act as if there were a connection. However, if medical science is prepared to say that there is a possible connection, a Judge may, after examining all the evidence, decide that causation is probable. He referred in this regard to the comments of Herron CJ in EMI (Australia) Limited v BES at 242. In the case at hand Spigelman J, reversing the trial judge’s findings, did not consider the evidence sufficient to infer causation. He was joined in that view by Davies A-JA. Stein JA dissented.
47 The Court cited Peter Greenberg “The Cause of Disease and Illness: Medical Views and Uncertainties” in Ian Freckelton and Danuta Mendelson Causation in Law and Medicine (Routledge, Oxford, 2002) 38 at 52; and March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 509 per Mason CJ, which was approved in Sew Hoy & Sons Ltd (In Receivership and in Liquidation) v Coopers & Lybrand [1996] 1 NZLR 392 (CA) at 407 per Thomas J, Smith v State Insurance Ltd [1993] DCR 947 at 958–959, and Ross v Accident Compensation Corporation DC Te Whanganui-a-Tara | Wellington AI573/00, 23 August 2001.
48 The Court then referred to Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 286 per Spigelman CJ and at 294 per Stein JA; Laferrière v Lawson [1991] 1 SCR 541, (1991) 78 DLR (4th) at 656–657 per Gonthier J; Snell v Farrell [1990] 2 SCR 311, (1990) 72 DLR (4th) 289 at 300 per Sopinka J; Chappel v Hart (1998) 195 CLR 232 at 238 per Gaudron J and at 255 per Gummow J; Naxakis v West General Hospital (1999) 197 CLR 269 (1999) 162 ALR 540 per Gaudron J; and EMI (Australia) Ltd v BES [1970] 2 NSWR 238 at 242 (CA). The Court also referred to Jane Stapelton “Scientific and Legal Approaches to Causation” in Ian Freckelton and Danuta Mendelson Causation in Law and Medicine (Routledge, Oxford, 2002) 14 at 14; and Personal Injury in New Zealand at [IP30.04] and [IP155.07].
49 The Court cited Jones v Great Western Railway Co (1930) 47 TLR 39 at 45; and Smith v Auckland Hospital Board [1965] NZLR 191 (CA) at 214 per McGregor J and at 220 per Gresson J.
50 The Court cited Lara Khoury Uncertain Causation in Medical Liability (Hart Publishing, Oxford, 2006) at 203; and at 39–43 and 143–228 for a “more detailed discussion on inferences”.
[69] We agree that the question of causation is one for the courts to decide and that it could in some cases be decided in favour of a plaintiff even where the medical evidence is only prepared to acknowledge a possible connection.51
…
[70] Finally on this topic, we note that the generous and unniggardly approach advocated in Harrild v Director of Proceedings [2003] 3 NZLR 289 at [19] (CA) per Elias CJ, at [39] per Keith J and at [130] per McGrath J was used by the High Court in this case to modify the causation test. This, in our opinion, is not an appropriate application of the principle, given the plain words of the 1998 Act and the rejection of the increased risk test in Atkinson. The generous and unniggardly approach referred to in Harrild may, however, support the drawing of “robust” inferences in individual cases. It must, however, always be borne in mind that there must be sufficient material pointing 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.
[40] The Court of Appeal in Ambros then went on to note that it was not unusual in medical negligence cases for the complainant to be able to point only to a statistical link between particular events in the injury.52 The Court also set out key principles espoused by Sir Austin Bradford Hill referred to in the Federal Judicial Centre’s Reference Manual on Scientific Evidence (1994).53 Those key principles assist in the analysis of statistics and research. They highlight the following factors: statistical association; dose response effect; temporality; consistency (between epidemiological studies); analogy; biological coherence; experimental evidence; and specificity.54
[41] The Court of Appeal cautioned about undue reliance on statistical evidence. There was always a risk that it gave an illusion of precision which was actually lacking.55 The Court said it had not heard argument on the Hill factors but that it might be that they “deserve further consideration to see if they might provide a possible
51 The Court referred to Dais v Accident Compensation Corporation DC Te Whanganui-a-Tara | Wellington 178/2002, 5 August 2003; Smith v State Insurance Ltd, above n 47, at 959; and Estate of Albert Francis McQueen v Accident Compensation Corporation DC Kirikiriroa | Hamilton 190/2005, 28 June 2005.
52 Accident Compensation Corporation v Ambros, above n 15, at [71].
53 At [74]. The Federal Judicial Centre’s Reference Manual on Scientific Evidence (1994) in turn refers to the criteria formulated by Sir Austin Bradford Hill, then Professor Emeritus of Medical Statistics of the University of London, in his Presidential Address to the Section of Occupational Medicine, “The Environment and Disease: Association or Causation?” (1965) 58 Proc R Soc Medicine 295, which are also discussed with approval in Ian Freckelton “Epilogue: Dilemmas in Proof of Causation” in Ian Freckelton and Danuta Mendelson Causation in Law and Medicine (Routledge, Oxford, 2002) 429 at 443–444.
54 Accident Compensation Corporation v Ambros, above n 15, at [75].
framework for assessing the weight to be applied to certain statistical evidence in some cases.”56
[42] The Court of Appeal then went on to discuss proximity, with particular reference to vaccination cases, where if a person suffers an allergic reaction just after being injected and that reaction is a known risk from that injection then “in the absence of a supervening cause, a court would almost certainly infer causation.”57 However, it would not suffice where, for instance, the reaction was not a known possible result, particularly when there were other possible causes of the reaction.58
[43] The Court of Appeal then examined the evidence in causation that had been before the High Court in that case, in particular an article on the effectiveness or otherwise of any possible treatment which was cited in evidence before the Court. The Court of Appeal concluded that, given the limitations on the statistical evidence contained in that article, it could not necessarily be assumed that treatment of Mrs Ambros would have allowed her to survive any longer than she did.59
[44] In the face of a suggested modified causation test put forward by counsel to deal with the unfairness of requiring a claimant to prove causation in cases of rare diseases where scientific uncertainty was often at its greatest, the Court in Ambros rejected a formulation based on an obligatory presumption that the courts must make “as a matter of law, when certain facts exist and in the absence of conflicting evidence”.60
[45]The Court of Appeal noted:
[80] While … a liberal view should be taken of when a tactical burden may pass to the Corporation, we do not consider that the scheme of legislation would allow a presumption of causation to arise in circumstances where the evidence would not (without the presumption) reach the required standard for proving causation … Even the relaxation of causation requirements has been only in very limited circumstances.
56 At [76].
57 At [78].
58 At [78].
59 At [105].
[46] The Court of Appeal rejected a modified test in cases of scientific uncertainty. Consistent with that, the appellant does not challenge the test of causation established by the Court of Appeal.
[47] In Ambros, the Court of Appeal held that the High Court did not apply the correct test for causation and therefore referred the matter back to the High Court. It said:61
[102] In this case it is accepted that there were only two possible causes of Mrs Ambros’ death. Either she died as a result of her underlying condition (SCAD) or she died as a result of medical error by a failure to diagnose, monitor and treat her appropriately. In order to succeed, Mr Ambros is required to prove the latter on the balance of probabilities. Has he done so?
[103] While its factual findings were sufficient for the High Court to conclude that causation was proved on the basis of its test (as set out at [4] above), finding that it was possible that Mrs Ambros may have been saved does not equate to a finding that she would more likely than not be alive had it not been for the medical errors made.
[104] The issue therefore is whether Mr Ambros is right and the evidence before the High Court proved causation even in accordance with the correct test. As Mr Gray pointed out, on the basis of the statistics in the article referred to above at [93], Mrs Ambros had at least a 51 per cent chance of survival. This means that her survival was more probable than not. Indeed, Mr Gray submits that, as Mrs Ambros had survived for six days without diagnosis or treatment, her chance of survival (based on the evidence in that article where all who died did so within four days) was arguably even higher.
[105] The High Court, because of its formulation of the test of causation, made no findings based on the statistical evidence contained in the article. Both the pathologist and Dr Hart, however, appeared to accept in evidence that Mrs Ambros’ case could be equated to those discussed in the article. There are limitations with the statistics. First, the sample used in the article was small but that appears to be because the condition is so rare. Indeed, Dr Hart in evidence suggested that the article covered all reported pregnancy related cases at the time. Thus the sample is not skewed even if the numbers are small. Secondly, and most importantly, however, the relationship between treatment and survival is not clear. For a start, there does not appear to be a recognised preferred treatment for the condition and, apart from the article which refers to good results in some cases from treatment, there was no evidence before the Court on the effectiveness or otherwise of any possible treatment. Further, while it is safe to assume that those whose condition presented as sudden death had not had treatment, that cannot be assumed for the others who died. Neither can it necessarily be assumed that those who survived for more than four days did so because of any treatment administered rather than because of the natural course of the condition itself.
[48] Atkinson said that causation must be proved on the balance of probabilities and that a risk of injury does not suffice.62 Ambros confirmed that was the correct test and went on to discuss how the courts should assess causation.63 It provided a framework for more guidance on causation principles but noted the framework could only be indicative for future cases as it may not assist in different factual circumstances.64
[49] The starting point under that framework is, did the Judge in the District Court apply the correct test for causation? I now go on into some detail to analyse the District Court decision.
The District Court decision — what did the Judge do?
[50] The judgment uses the headings: Background; ACC claim; Review; The Law; The Position of the Appellant; Appellant Submissions at the Hearing; The Position of the Respondent; Respondent Submissions at the Hearing; Counsel for the appellant in reply; Discussion; The Present Application; Conclusion; and Result.
[51] One of the points brought up by the appellant is that the actual analysis in the judgment was relatively brief. It ran to about 37 paragraphs from the headings “The Present Application” to the end of “Result”. However, the analysis draws on the information in the preceding 236 paragraphs, which cover the facts and the law, referring to the relevant medical reports and the analysis by the Reviewer.65 In particular, the Judge sets out the Court of Appeal causation test indicating that robust inferences of causation can be drawn and that a Court could not infer causation when the science says it is “not possible.”66 The Judge also quoted from Ambros to the effect that the question of causation was one for the court to decide and she noted that “[t]he different methodology used under the legal method means that a court’s assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot.”67
62 At [22].
63 At [18].
64 At [22].
65 At [80] onwards, setting out the law, including the relevant case law, in particular Accident Compensation Corporation v Ambros, above n 15.
[52] Importantly, the Judge noted, in referring to counsel’s arguments, the passages in Ambros in relation to the drawing of causal inferences and the need to bear in mind that there was sufficient material pointing to proof of causation on the balance of probabilities, for a Court to draw even a robust inference of causation.68 As the Judge observed, mere risk of causation does not suffice.69 The Judge cited Ambros referring to the requirement for a plaintiff to prove causation on the balance of probability. The plaintiff must show the probability of causation is higher than 50 per cent.70 The Judge, however, acknowledging that the Court could draw robust inferences of causation in cases of uncertainty, quoted the following passage from Ambros:71
… However, a court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture …
[53] The Judge had firmly in mind the correct test of causation. She reminded herself of the decision in Ambros as she came to analyse causation in her judgment.72
[54] I now turn to the Judge’s review of the evidence. She noted that Dr Singhal treated Mr Reilly at the Burwood Spinal Unit, presumably since his arrival on 29 March 2017.73 On 5 October 2017, Dr Singhal lodged a treatment injury claim with ACC on Mr Reilly’s behalf for delayed diagnosis of GBS. In the injury details, it was described as “Campylobacter Guillian-Barre Syndrome with clear evidence of delayed diagnosis”.74 The Judge set out the background from an undated letter by Dr Singhal, attached to the treatment injury claim, in which Dr Singhal recounts the background as provided by Mr Reilly, and noted Dr Singhal’s comments that a “differential diagnosis of Guillian-Barre syndrome, acute motor axonal neuropathy type was quickly arrived at”.75 The Judge then recorded Dr Singhal’s conclusion, in relation to treatment delay, that there was a nine to 10-hour delay as a result of the Helpline advice.76 Dr Singhal went on to state:77
68 At [150].
69 At [150].
70 At [150], citing Accident Compensation Corporation v Ambros, above n 15, at [65], [67] and [70].
71 At [150], citing Accident Compensation Corporation v Ambros, above n 15, at [67].
72 At [256].
73 At [32]–[33].
74 At [33].
75 At [35]–[37].
… Medical literature which discusses the treatment of Guillian-Barre typically emphasises the appointment of timely and accurate diagnosis following early initiation of appropriate treatment. It can be argued that the avoidable delay in recognising the seriousness of Alex’s condition and consequent delay in commencing appropriate treatment for Guillian-Barre … contributed directly to Alex’s level of disability.
[55] Her Honour noted that Dr Singhal referred in his report to a medical article about GBS by Professor Hugh J Willson, Professor Bart C Jacobs and Professor Pieter A van Doorn.78
[56] The Judge then went on to note that the Corporation subsequently obtained a report from Dr Brian Dwyer, an infectious disease specialist, dated 17 December 2017.79 Dr Dwyer stated the specific question required to be answered was:80
ACC is wanting to determine if the treatment had been given soon after the initial call on 20:05 hours on 16/1/2017, would it have altered the severity of the outcome.
[57] No issue is taken with the accuracy of the Judge’s recitation of Dr Dwyer’s comments, as follows:81
[53]Dr Dwyer states:
The claim being asserted is that the delay in initial referral to the hospital related in a worsening of Alex's condition. Indeed, it seems that Alex spent three months on a ventilator but still required 24 hour care and has a tetraplegia equal to a person with spinal cord lesion at the cervical spine level of C4.
[54]Dr Dwyer also answers a number of questions and states:
1.There is no doubt the young man had developed a typical acute motor axonal neuropathy without significant sensory symptoms (GSB [sic]) in association with a bout of campylobacter diarrhea [sic].
2.When an infection agent can be identified it is more commonly referred to as campylobacter jejuni/coli gastrointestinal infection, usually diarrhoea. Usually about a third of GBS cases can be linked to previous, recent campylobacter infections.
78 At [42] and n 2.
79 At [48].
80 At [49].
3.The tempo of the onset of symptoms in GBS is an important factor in determining the outcome. Onset over days is more likely to be limited. On the other hand rapid onset over hours or less than a day is often associated with more extensive paralysis and indeed a patient may be well in the morning and dead by the evening because of respiratory paralysis. Alex falls into the more severe group with rather rapid onset.
4.Campylobacter jejuni/coli associated GBS is more commonly associated with severe and prolonged disease, requiring hospitalisation compared to GBS not associated with campylobacter. Campylobacter GBS is more likely to be hospitalised, more likely to require intensive care, more likely to require ventilation, will stay in hospital longer, and more likely have a residual disability.
5.The advice given to Alex’s mother did not reflect well on the training of the nurse who provided it. Early recognition of the tempo of a paralysing illness is the key to ensuring survival. If Alex had not managed to text his parents from his room at 3 am then the outcome may have been fatal. Advice at 8pm on the previous evening would have brought him to hospital immediately. The 2 hour delay by ambulance would not have helped if his respiratory failure were progressing even more quickly. Rapid onset of the weakness and paralysis in the context of ongoing diarrhoea is highly suggestive of a severe and even life threatening form of GBS.
6.The prediction of the final outcome of Alex’s illness must be guarded. He may show more improvement over the next 2 or 3 years, although there could be some residual disability.
7. I do not consider it all likely that any treatment (immunoglobin or plasmapheresis) administered that evening would have been likely to have kept Alex out of the intensive care or off the ventilator. It 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.
[55] Dr Dwyer also refers to three publications including the article referred to by Dr Singhal.
[58] Further advice, dated 21 February 2018, obtained by the Corporation from Dr Ian St George, a General Practitioner, was recorded by the Judge as follows:82
[57] Dr St George noted the history, which was already covered in Dr Dwyer’s report and answered the following questions:
1. In your opinion was the initial phone call advice given by Home Care Medical appropriate given the history from his mother, please explain.
No. The nurse failed to recognise that the symptoms presented by Ms Reilly [sic] were neurological and important, and so instead of triaging using an appropriate algorithm, she used a general one that asked irrelevant questions and reached the wrong disposition. It appears she did seek help from a more senior clinician but such help was not available.
2. If not what advice should have been given.
The appropriate advice would have been to immediate transfer to hospital. Correct choice of algorithm would have resulted in a disposition of “urgent review within 2 hours” according to Ms Gannon’s review of the call.
3. Do you have any other comments.
I agree fully with the conclusions of Sharryn Gannon, clinical director of Home Care Medical and Dr Dwyer’s comments and conclusions.
I would add that the telephone triage is a difficult skill and that back up by senior clinicians is necessary at all times. It is disappointing that this was not available and that Ms Gannon did not comment on it.
There is no evidence that earlier treatment would have improved the outcome. The Cochrane review found only that “treatment within 7 days is more effective” and that “Plasma exchange is initiated as early as possible but up to 30 days from the onset of the weakness.
[58]He also refers in his references to an article by Mathew Harms, MD.83
[59] The Judge then went on to note that the Corporation completed a Treatment Injury Cover Decision Tool relating to the delay in the diagnosis of GBS relating in tetraplegia.84 The report sets out the narrative leading to the diagnosis of GBS and the view of Mr Reilly’s mother that the delay had determined the poor outcome for Mr Reilly who was in Burwood as a tetraplegic.85
[60] The Judge noted that the ACC report includes quotes from the reports provided by Dr Dwyer and Dr St George. The Judge set out the conclusion in the report as follows:
83 Inpatient management of Guillain-Barre syndrome. Neurohospitalist. 2011 apr; 1(2); 78-74.
84 District Court decision, above n 1, at [59].
[63] In conclusion, the report states:
ACC acknowledges that the initial advice given by Home Care Medical was not recognising the neurological, aspects of the symptoms. This is noted both by Homecare Medical and the external medical advisor Ian St George.
However, ACC has been unable to identify any damage or harm as a result of the delay of diagnosis.
Infectious disease consultant, Dr Brian Dwyer cannot confirm that the earlier treatment from the Guillain-Barre would have had any influence on the outcome of this case.
ACC therefore declined the claim for cover as there is no evidence to suggest the delay in the diagnosis has had an influence on the outcome of the Guillain-Barre syndrome.
[61] The Judge recorded that a report was also obtained from the Corporation’s Complex Claim Panel (the Panel), dated 22 March 2018, which set out the information in respect to the events and referred to the infectious diseases advice.86
[62] The Judge noted that the Panel had concluded there was no evidence that any treatment administered earlier that evening would have improved the outcome. The Cochrane review found only that “treatment within 7 days is the most effective”, and that “Plasma exchange is initiated as early as possible but up to 30 days from the onset of weakness”.87 The conclusion of the Panel was set out by the Judge as follows:
[68]In conclusion the Panel states:
The legal issue is not a delay in diagnosis, but whether a failure to treat or to provide treatment in a timely manner has meant that the diagnosis could and should have been made sooner than was done.
There is Guillain-Barre – this was established on 17/1/2017. Campylobacter history is significant to how the Guillain-Barre syndrome has panned out.
The panel agreed that the phone call consult at 200 hours on 16/1/2017 could and should have recognised the significant neurological symptoms being conveyed and so gone down a protocol to account for the neurological symptoms, which the outcome would have been to seek urgent review within 2 hours. However, if it was seen sooner than the outcome still the same would have happened. There has not been a personal injury caused by treatment. The outcome in this case is because of Guillain-Barre syndrome.
86 At [64].
[69]The Panel, in conclusion state:
Panel agreed that the telephone consult at about 2000 hours on 16/01/2017 could and should have recognised the significant neurology symptoms being conveyed and so the gone down a protocol to account for the neurological symptoms, which the outcome would have been to advise to seek urgent review within two hours. However, if was seen sooner than the outcome still is the same that has happened. There has not been a personal injury caused by treatment. The outcome in this case is because of Guillain Barre Syndrome.
[63] On 26 March 2018, the Corporation declined cover on the basis it did not meet the criteria for a treatment injury. A review of the Corporation’s decision was filed on 6 April 2018. The Judge noted that before the review hearing, a further report was provided by Dr Singhal, dated 26 November 2018.88
[64] The relevant parts of Dr Singhal’s report were also set out by the Judge as follows:89
[74] Dr Singhal provides information in respect to his credentials as Clinical Director of Adult Rehabilitation Services at Burwood Hospital in Christchurch and that he is a Spinal Rehabilitation Specialist and has worked in the field since 2003. He notes:
I have a special interest in acute spinal cord injury and neurological sequelae of neurological conditions such as Guillain-Barre syndrome.
… I understand ACC has agreed there was a delay in diagnosis secondary to the incorrect advice given over the phone to Alex's mother on 16/1/2017 but do not agree that this caused him to have worse neurological damage and it would not have prevented him to have his severe degree of GBS. I have considered my previous report, ACC serious injury panel report and opinion, literature review on GBS and the Burwood Spinal Unit experience dealing with serious cases of GBS who come to the spinal unit for rehabilitation and preparing this report and answering your questions.
1. On the balance of probabilities or to what extent, if any did the delay in treatment contribute to Alex's neurological injury. Please discuss.
… Could the neurological sequelae and the ventilation be prevented if the diagnosis had been made earlier, the answer to this is probably not as pointed out by Dr Dwyer in his opinion but could the degree of disability and time in ventilation be shortened. The answer is that probably the course of the immunity antibody mediated damage to the
nervous system would be less and the recovery from the aftermath of the disease and time on ventilation may have been shortened. This may have meant Mr Reilly could be less disabled being able to walk independently or with some aid.
…
2.If you have not already addressed this above, do you agree with Dr St George that “there is no evidence that earlier treatment would have improved the outcome.”
I disagree with Dr St George, there is no evidence that earlier treatment would have improved the outcome.
There is enough evidence in the literature to say that the earlier the treatment in the form of plasmapheresis or IVIG the lesser the neurological sequelae and decreased LOS in the hospital. Here there was a definite delay in diagnosis and delay in treatment based on the information provided. The diagnosis of Guillain-Barre syndrome (GBS), is a challenge as it presents non specific symptoms and very high suspicion of index is vital in diagnosing this condition and more importantly treating it promptly is the key to preventing the neurological sequelae in the long run.
[75]Dr Singhal continues:
... Our own experience over the last 10 years here in Burwood Spinal Unit is that every hour, every day is important in preventing a neurological sequelae and the patients who have been diagnosed and treated earlier have a better neurological outcome ...
In Alex’s case if his mum's phone call would have been answered appropriately and correct advice given, he would have had IVIG treatment a day earlier.
…
In general, a poor long term prognosis is directly related to the severity of the acute episode and delay in onset of specific treatment.
Patients treated early with plasmapheresis required less mechanical ventilation, and hospitalisation time was decreased.
Early recognition and treatment of GBS also may be important in long term prognosis especially if the patient with poor clinical prognosis signs, such as in older age, are rapidly progressing course and antecedent diarrhoea.
[76] Dr Singhal refers to a study by Martinezen et al which investigated a study to determine if early treatment of IVIG in the first
days after onset of symptoms had a significant effect on shortening average length of hospital stay.
[77] They examined retrospectively records of 69 patients with GBS with group A – nine patients received no treatment of IVIG, group B – 31 patients received treatment on the sixth day and group C
– 29 patients received treatment in the first five days for symptoms onset. They concluded the treatment with IVIG in the first five days after the onset of GBS symptoms reduces the length of time of hospitalisation by 11 days.
[78] Dr Singhal was asked what other comments he thought would assist and states:
... The argument that the literature is only for better prognosis within 7 days of the diagnosis of IVIG therapy is incorrect. We see approximately 4-5 cases of GBS with severe neurological sequelae a year and a common theme in most of them is delay in diagnosis. The ones who were delayed earlier do not need extensive spinal rehabilitation or ventilation support. I do agreed [sic] with the ACC reviewers that literature is not very clear on the exact timing for treatment which equates to better prognosis.
[79]In conclusion, Dr Singhal states:
On balance the probability the delay in treatment has caused him greater disability such that he is still requiring a wheelchair for mobility, he initially was requiring a Suprapubic Catheter to manage his bladder (but has not required that since I last saw him in [sic] is voiding normally with neurological gains) and the longer hospital stay required greater psychosocial input, care input and not to mention his family which had experienced the highs and lows of his fight with GBS and needing ACC help to support their son.
[65] It is not necessary here to go into the level of detail the District Court Judge did in relation to the review.
[66] The Judge recorded the Reviewer’s reference to the report of Dr Dwyer, who had said that a more timely treatment “may have” improved the outcome but that “it is not possible to confidently state that that is more likely”.90 The Judge also noted that the Reviewer had referred to Dr Singhal, who was supportive of Mr Reilly’s treatment injury claim, and who had said that with a more timely treatment Mr Reilly’s time on ventilation “may have been shortened” and “may have meant” Mr Reilly would have been less disabled and able to walk independently or with some aid.91
90 At [89].
91 At [90].
[67] As the Judge noted, the Reviewer had commented on Dr Singhal’s use of the word “may” and had stated that it was a matter of conjecture whether treatment started eight hours earlier would have materially altered the outcome for Mr Reilly.
[68] The Judge noted that the Reviewer concluded that there was insufficient evidence to enable her to infer that Mr Reilly’s condition probably would have been better, let alone that he probably would not have been paralysed, but for the eight-hour delay in the treatment of his GBS.92 For that reason, the application for review was dismissed.93
[69] The Judge then set out the relevant law, including the definition of treatment injury,94 and the appellant’s submissions, with particular reference to the evidence of Dr Singhal, who stated that: 95
On the balance of probability the cause of this autoimmune antibody mediated damage to the nervous system would be less and the recovery from the aftermath of the disease and time on ventilation would have been shortened. This may have meant Mr Reilly would be less disabled being able to walk independently or some other aid.
[70] The Judge noted that counsel for the appellant argued that the use of the word “may” in Dr Singhal’s comments did not detract from his conclusions and that the case law indicated robust inferences of causation could be drawn on the basis of that evidence.96
[71] The Judge recorded that counsel for the appellant had pointed out that Dr Singhal relied on his own experience treating patients,97 and his experience stretched to over 10 years at the Specialist Spinal Unit at Burwood Hospital. That experience had indicated to Dr Singhal “… each hour every day is important in preventing the neurological sequalae …”.98
92 At [92] (emphasis in original).
93 At [93].
94 At [95].
95 At [111].
96 At [113].
97 At [122].
98 At [132]
[72] The Judge also referred to an Australian High Court decision relied upon by the appellant, which indicated that where medical science could not identify the biological or pathological mechanisms by which the disease develops, such a state of affairs was not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility.99
[73] In reference to the appellant’s reply, the Judge noted that counsel for the appellant submitted there was solid evidence in this case as to the delayed diagnosis causing greater damage to the nervous system.100
[74] The Judge noted that counsel for the appellant had summarised the appellant’s position and had submitted the weight of the evidence suggested the delay did have a material effect on Mr Reilly’s outcome.101 Counsel referred in this respect to the evidence of Dr St George, who said treatment within a seven day period was most effective, the evidence of Dr Dwyer, who said the tempo of the illness was important, and the evidence of Dr Singhal, which has been canvassed above.102 The Judge commented that counsel for the respondent had highlighted the distinction between an infectious disease specialist (such as Dr Dwyer), who studies the progression of the disease, with that of Dr Singhal, who is experienced in the treatment of GBS.103 Counsel for the appellant said that Dr Singhal was nevertheless somebody who was experienced in the treatment of the syndrome and therefore well-placed to comment on timeliness of that treatment and the correlation between the timeliness and outcome.104
[75] The Judge noted that counsel had accepted there was no specific study regarding outcomes measurable in hours and whether or not the outcomes were affected if treatment was provided earlier in terms of hours.105 The Judge noted the studies only related to whether or not the treatment is provided earlier, measurable in
99 At [134], referring to Salson v McGinner. The reference in the judgment is an incorrect reference to Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd. v McGuiness [2000] NSWCA 29 at [93].
100 At [210].
101 At [212].
102 At [212].
103 At [213].
104 At [213].
days, one of which suggested earlier treatment within five days produces a better outcome.106
[76] The Judge also dealt with the position of the respondent, and its reliance on Dr Dwyer’s evidence, Dr St George’s evidence that he agreed with the comments and conclusions of Dr Dwyer so “there is no evidence that earlier treatment would have improved the outcome”.107 The Judge also noted counsel’s reference to Dr St George’s statement that the Cochrane review (another piece of research) found that “treatment within 7 days is the most effective” and that plasma treatment is initiated as early as possible but up to 30 days from the onset of weakness.108
[77] The Judge noted the submission of counsel that Dr Singhal’s second report of 26 November 2019 took the view that seven days was an arbitrary number and that those who were diagnosed earliest had the best outcome, particularly for those with severe and debilitating presentation, “which is what Mr Reilly presented with.”109
[78] The Judge noted that counsel for the Corporation said the appellant had relied on the evidence of Dr Singhal, who stated that damage to the nervous system would be less and recovery from the aftermath of the diseases and time on ventilation would have been shortened had there been an earlier intervention, but that the evidence fell well short of identifying a physical injury. The evidence that Mr Reilly “may” have had less severe symptoms was “speculative at most”.110 Counsel went on to say that Dr Singhal’s expertise was in spinal rehabilitation and he did not have expertise on the progression and input of infections and diseases.111 Counsel therefore submitted that the views of Dr Dwyer, an infectious disease expert, must be preferred to that of Dr Singhal on the issue of whether delay has any input on the progress of Mr Reilly’s GBS.112 This submission appears to have been later accepted in part by counsel for the appellant in her reply, who nevertheless maintained that while Dr Singhal was not necessarily an expert with the relevant specialty to comment on the delay, he was,
106 At [214].
107 At [143].
108 At [143].
109 At [145].
110 At [164]–[165] and [167].
111 At [169].
however, somebody who is experienced in the treatment of the syndrome and accordingly well-placed to comment on the need for early treatment and the correlation between the timeliness and the outcome.113
[79] The Judge went on to record the further arguments of the Corporation. The literature relied on by Dr Singhal only went as far as saying that delay in treatment may lead to a worse outcome, but did not define the period of that delay in minutes, hours, days or weeks.114 Indeed, the Judge referred to counsel’s comments that the only report mentioned by Dr Singhal to identify a delay period concluded that treatment in the first five days after onset reduces the length of hospitalisation.115 Counsel had noted that Dr Singhal had not explained how the earlier diagnosis caused more severe GBS symptoms nor how he arrived at the conclusion that the “earlier the diagnosis [the] lesser the disability” in general terms. There was no specific suggestion by Dr Singhal that the seven-hour delay meant that treatment was significantly less effective or entirely ineffective.116 In contrast, counsel said, Dr Dwyer’s evidence was that earlier treatment “may” have had an influence on the appellant’s residual disability and degree of independence “but it is not possible to confidently state that this is more likely with treatment started 12 hours earlier. The data is just not there”.117 Counsel also pointed out that Dr St George was also definitive that there was “no evidence that earlier treatment would have improved the outcome”.118
[80] The Judge also noted that counsel had submitted that Dr Dwyer’s evidence was that Mr Reilly’s severe and life-threatening form of campylobacter jejuni/coli associated GBS was more likely to require intensive care, ventilation and longer hospitalisation and was more likely to result in residual disability.119 Her Honour noted the submission that the literature described by Dr Singhal referred to severe or rapidly progressing illness as being a key indicator of a worse outcome and that Mr Reilly’s outcome was consistent with Dr Dwyer’s description of the
113 At [213].
114 At [174].
115 At [174].
116 At [174].
117 At [174] (emphasis removed).
outcome for patients with campylobacter jejuni/coli associated GBS and in the literature referred to by Dr Singhal.120
[81] The Judge recorded that counsel for the Corporation concluded that Mr Reilly’s condition was caused by his underlying health, the campylobacter GBS, which was a more severe form than non-campylobacter GBS and involves a rapid onset of symptoms resulting in more severe disability.121 The Judge recorded this was said to support counsel’s submission that Mr Reilly’s tragic outcome was due to his severe form of the underlying condition and it was unlikely the seven-hour delay would have altered the outcome.122
[82] Having traversed the arguments of counsel, the Judge then went on to deal with the legislation and regulations.
[83] The Judge first dealt with issues surrounding the treatment injury claim.123 That issue is not contested in this appeal.
[84] The Judge then moved on to causation, noting that it had not been submitted that the time spent in diagnosing or testing Mr Reilly, after he arrived at Nelson Hospital before treatment was started, was the cause of any personal injury.124
[85] The Judge noted the appellant’s case rested on Dr Singhal’s reports. The Judge referred to his later report of 26 November 2018, in which he stated:125
Could the neurological sequelae and ventilation be prevented if the diagnosis was made earlier, the answer to this is probably not as pointed out by Dr Dwyer in his opinion but could the degree of disability and time on ventilation be shortened? The answer to this is yes which is clear from the literature which I have quoted below.
120 At [178].
121 At [207].
122 At [208].
123 At [216]–[236].
124 At [239].
125 At [240].
[86] The Judge then looked at the literature quoted by Dr Singhal.126 The Judge said that the article by Willson, Jacobs and van Doone referred to by Dr Singhal was informative with numerous references but:127
… nowhere in the article does it indicate that GBS or the symptoms Dr Singhal relies on as causing Alex’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.
[87] The Judge also noted the introductory paragraphs of the article as follows:128
First Guillain-Barre syndrome is usually preceded by infection or other immune stimulation that induces an adherent autoimmune response targeting peripheral nerves and their spinal roots. Molecular mimicry between microbial and nerve antigens is clearly a major driving force behind the development of the disorder, at least in the case of Campylobacter jejuni infection. However, the interplay between microbial and host factors that dictates if and when the immune response is shifting towards unwanted autoreactivity is still not well understood. Furthermore, genetic and environmental factors that affect an individual’s susceptibility to develop the disease are unknown. Unwanted autoimmunity does not arise in most individuals (99%) exposed to an immune stimulus as a result of Guillain-Barre syndrome – associated infections such as jejuni.
[88] The Judge then went on to note the reports referred to by Dr Dwyer and Dr St George, and the Willson, Jacobs and van Doone article produced by Dr Singhal.129 She noted Dr Dwyer also referred to two additional publications.130
[89]The Judge said: 131
[245] Dr Dwyer is an infectious disease specialist and as noted he states in his report:
I do not consider it at all likely that any treatment (immunoglobulin or plasmapheresis) administered that evening would have been likely to have kept Alexander out of intensive care or off a ventilator. It may have had an influence on duration of disability or resumption of mobility or degree of independence, but it is not possible to
126 At [241]–[242].
127 At [241].
128 At [242].
129 At [243].
130 At [244], citing J Kaldor and B R Speed “Guillain-Barre syndrome and campylobacter jejuni: a serological study” (1984) 288 British Medical Journal 1867; and Ban Meshu and Martin J Blaser “Role of Infection Due to campylobacter jejuni in the Initiation of Guillain-Barré Syndrome” (1993) 17 Clinical Infectious Diseases 104.
131 Emphasis in original.
confidently state that this is more likely with treatment started 12 hours earlier. The data is just not there.
[246]Dr St George, in his report expresses the same view where he states:
I would add that telephone triage is a difficult skill and that backup by senior clinicians is necessary at all times. It is disappointing this was not available and that Ms Gannon did not comment on it.
There is no evidence that earlier treatment would have improved the outcome. The Cochrane review found only that “treatment within seven days is the most effective” and that “plasma exchange is initiated as early as possible but up to 30 days from the onset of the weakness”. From the article by Mathew Hans, MD Inpatient Management of Guillain-Barre syndrome. Neurohospitalist 2011 Apr; 12; 78/84.
[247] This last article referred to is the only one which provides any medical evidence in respect to the date for commencement of treatment.
[248 It should be noted that the Cochrane review is the product of the Cochrane Policy Institution (Cochrane), a British International Charitable Organisation forum which organises medical research findings to facilitate evidence-based choices about health interventions involving health professionals, patients and policy makers.
It involves 53 research groups based at research institutions world-wide.
[249] It is noted Cochrane have been involved in a number of research publications in respect to Guillain-Barre syndrome. Plasma Exchange in Guillain-Barre syndrome 2017; Multi Discipline care in Guillain-Bane syndrome October 2010; Intravenous Immunoglobulin for Guillain-Barre syndrome 2014; Treatment and Other Intravenous Relating to Immunoglobulin and Plasma Exchange for Acute Guillain-Barre Syndrome; and Cochrane View 25 June 2020, are among its publications.
[90] The Judge then went on to say that she accepted that Dr Singhal had practised medicine for 23 years and was the present Clinical Director of the Adult Rehabilitation Service at Burwood Hospital, with a special interest in acute spinal cord injuries and neurological sequalae of neurological conditions such as GBS.132
[91] She referred to the conclusion of Dr Singhal in his second report that on the balance of probabilities the course of the antibody mediated damage to the nervous system would be less and recovery from the aftermath of the disease may be shortened, which may have meant Mr Reilly would have been less disabled, being able to walk independently or with some aid.133 However, in relation to the questions that
Dr Singhal was asked in his second report, he agreed with Dr St George in respect of the statement “there is no evidence that earlier treatment would have improved the outcome”.134 However, Dr Singhal alone took the view that:135
There is enough evidence in the literature to say that the earlier the treatment in the form of plasmapheresis or IVIG the less neurological sequelae and decreased LOS in the hospital. Here there is a definite delay in diagnosis and delay in treatment based on the information provided.
The conclusion made by Dr SG for the Cochrane report shows only that “treatment within 7 days is more effective” and that “plasma exchange is initiated as early as possible but up to 30 days from the onset of weakness”. Accordingly he states that 7 days is an arbitrary number.
[92] The Judge noted that Dr Singhal referred to Martinez et al, a study which investigated if earlier treatment of IVIG in the first days of the onset had a significant effect in shortening the average length of hospital stay. The study retrospectively examined the records of 69 patients with GBS. Group A had nine patients who received no treatment from IVIG, Group B had 31 patients who received treatment on the sixth day and thereafter and Group C had 29 patients who received treatment in the first five days from symptom onset.136 The results showed a mean duration of hospital time for Group A of 47.7 days, Group B 32.4 days, and Group C 21.3 days.137 Treatment with IVIG in the first five days after the onset of GBS symptoms was said to reduce the length of hospitalisation by 11 days. However, the Judge said that did not establish a shorter delay in diagnosis before treatment was commenced directly impacts the severity of the condition.138
[93] The Judge said that apart from Dr Singhal’s views, there was no medical evidence before the Court that the short delay in Mr Reilly arriving at the hospital had contributed to a longer period in the rehabilitation centre or having ventilatory support.139 In fact, she noted that Dr Singhal had said that he agreed with ACC reviewers that the literature was not clear on the exact timing of treatment which equated to better prognosis.140
134 At [252].
135 At [252].
136 At [254].
137 At [254].
138 At [255].
[94] The Judge accepted the submissions of the respondent that there was “insufficient material to cross the threshold of finding that on the balance of probabilities causation is established.” The Judge accepted that “[t]he only evidence the Court has before it as to the limited delay in treatment causing ‘probable injury’ to [Mr Reilly] is from Dr Singhal.”141 The Judge concluded:142
… I find that while Dr Singhal treated Alex at the Burwood Rehabilitation Unit and has an interest in cases of this sort, he does not have the experience or expertise of Dr Dwyer, an infection Diseases Specialist, in respect to the onset of Guillain-Barre syndrome.
[258] As noted, Alex’s condition was undoubtedly intensified by the fact that the evidence supports it [sic] arose from his Campylobacter infection. As noted by Dr Dwyer, a Campylobacter infection is commonly associated with severe and prolonged GBS, with a greater likelihood of hospitalisation and is more likely to require intensive care. Unfortunately, Alex falls into this category.
It is noted that Alex’s treatment was commenced at Nelson Hospital and continued on the flight to Christchurch prior to him being admitted to Christchurch Hospital and was continued on his arrival at Christchurch Hospital. It is accepted his condition was severe and his recovery protracted.
[95] The Judge said that she found Dr Dwyer’s evidence compelling that it was “not at all likely” that treatment if administered earlier would have kept Mr Reilly out of intensive care or off a ventilator.143 She noted Dr Dwyer had said “the data is just not there” and there was no medical evidence or literature which supported 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.144
[96] The Judge accepted that Dr Singhal had a larger role to play in Mr Reilly’s rehabilitation while he was at Burwood and the reports from that hospital indicated a gradual improvement. However, she said that she did not find it had been established that the delay was causative of the severity of his condition.145 The Judge therefore concluded:
[267] In respect of the treatment (or lack of treatment) being shown to have occurred, I find no evidence to support that delay of seven hours in presenting
141 At [257].
142 At [257]–[258].
to the hospital has been causative of a treatment injury by way of Alex having extended treatment. I find the Corporation was correct in stating “there is no evidence to suggest the delay in the diagnosis had an influence on the outcome of Guillain-Barre syndrome”.
[97] The Judge went on to say that there was no medical evidence to establish that earlier treatment would have improved the outcome, and that the best medical evidence on this issue was that treatment within seven days was most effective and should be initiated as early as possible within 30 days.146 She specifically noted that the publication referred to by Dr Singhal, did not indicate that treatment within the timeframe suggested by Dr Singhal was essential to ensure there would be no injury.147 Finally, the Judge went on to say that the further publications referred to by Dr Singhal did not provide any additional information other than the fact that early recognition and treatment of the syndrome was important, without providing any definitive timeframe.148
The medical evidence
[98] As noted above, it is clear that the Judge in her analysis had in her mind the correct test of causation in that she reminded herself of the decision in Ambros as she came to analyse causation in her judgment.149
[99] There is no dispute that failure to treat or delay in treatment may give rise to a treatment injury for the purpose of cover under ACC. In this case, the Corporation has accepted that there was a seven to eight-hour delay and that could give rise, subject to causation, to a claim for a treatment injury. The District Court Judge took the delay to be seven-and-a-half hours, which was within the appropriate range. The Judge made no error in her factual findings.150
[100] The Judge had carefully considered the medical evidence, including in particular the points made by the appellant as to what did support the appellant’s claim. On the basis of that evidence including the literature referred in Dr Singhal’s report
146 At [268].
147 At [269].
did not support the position he espoused nor prove on the balance of probabilities that earlier treatment would have resulted in a lower level of disability. The Judge preferred the evidence of Dr Dwyer, an infectious disease expert with expertise in the effects of delay of treatment — such expertise having been properly accepted by the appellant’s counsel.
[101] After evaluating the medical evidence of both Dr Dwyer and Dr Singhal on the medical issues and the findings of the research, the Judge preferred the evidence of Dr Dwyer, as she was entitled to do, and found that the Corporation’s decision declining cover for the claim was correct. It cannot be said that in this case there was “no evidence to support the determination”, nor that the determination was “inconsistent with and contradictory” to the evidence, such as suggested by the Supreme Court in Bryson v Three Foot Six Ltd would amount to an error of law.151
[102] In the circumstances, the Judge had the evidential basis on which to make a determination that causation was not established according to the orthodox test, correctly referred to in her judgment as a finding on the balance of probabilities.
[103] As noted in Ambros, proving a causal link between a medical error and the ultimate injury is frequently difficult due to scientific uncertainty over causation.152 Moreover, the legal burden was on the appellant to prove causation.153 The District Court Judge properly concluded that the medical evidence did not support the standard of proof required for causation in this case. Although she identified there was some evidence produced by Dr Singhal that suggested a linkage, she was not sufficiently persuaded by that and found this was not supported by the literature to which Dr Singhal had referred. She was entitled to prefer the evidence of Dr Dwyer and Dr St George and put appropriate weight on it. The Judge was entitled to come to her conclusion on legal causation based on that assessment.
[104] The appellant here faced a high hurdle in asserting that the findings of the District Court were erroneous in law. Intervention on a question of law on appeal is
151 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
appropriate only where the lower court has come to a conclusion for which there was no evidence or which is inconsistent with the evidence and contradictory to it.154 That is not the case here.
[105] The Judge made no errors. She applied the correct test for causation and her decision is supported by the evidence.
Conclusion
[106]The appeal is dismissed.
[107] 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
154 See Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at [3].
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