Robertson v Accident Compensation Corporation
[2014] NZHC 762
•14 April 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-712 [2014] NZHC 762
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an appeal under s 162 of that Act
BETWEEN
CASSANDRA ROBERTSON Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 25 November 2013 Counsel:
J M Miller and M L Bagnall for Appellant
A K Miller for RespondentJudgment:
14 April 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 14 April 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
John Miller Law, Wellington for Appellant
Claro, Wellington for Respondent
ROBERTSON v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 762 [14 April 2014]
Introduction
[1] This is an appeal on a question of law from a decision of Judge Beattie in the District Court, reinstating a decision of the Accident Compensation Corporation (ACC), to decline the appellant cover for her condition under the Accident Compensation Act 2001 (the Act).
[2] The question of law as stated is:
Whether a personal injury caused by the accelerated progression of an incurable underlying disease condition resulting from a failure in diagnosis can be covered as a treatment injury.
[3] This case has had a lengthy history for reasons that are not apparent from a reading of the file. A brief chronology is as follows:
on 20 January 2004 Mrs Robertson was diagnosed with end-stage renal
failure;
on 9 June 2007 ACC declined Mrs Robertson cover for her condition as a
treatment injury;
on 19 February and 10 August 2010 ACC’s determination declining cover
was reviewed and overturned in a decision delivered on 3 September 2010;
an appeal from the reviewer’s decision was heard by Judge Beattie in the
District Court on 25 October 2011, and his decision allowing ACC’s appeal
was delivered on 9 November 2011;
on 20 March 2013, Judge Joyce in the District Court granted Mrs Robertson
leave to appeal to the High Court on a point of law from Judge Beattie’s
decision.
Background
[4] The appellant is a 40 year old mother of five. She attended multiple appointments with her general practitioner (GP) between August 1995 and January
2004. In January and August 2002, urine specimens showed haematuria (blood in the urine) and proteinuria (excess protein in urine). No further investigation was undertaken at the time.
[5] On 13 January 2004, the appellant presented to her GP with a variety of symptoms. A blood test revealed abnormal kidney function and, on 20 January
2004, she was referred to a nephrologist. She was subsequently diagnosed with a condition known as IgA nephropathy. This condition resulted in the appellant suffering end-stage renal failure which required her to immediately undergo daily dialysis treatment.
[6] It is accepted that end-stage renal failure was inevitable in Mrs Robertson’s case. The issue is whether the end-stage renal failure could have been delayed for up to two years had she been diagnosed and treated in a timely fashion. If so, this would have given her two further years of normal life to look after her family before she was required to undertake seven hours of daily dialysis treatment in order to survive.
The legislative scheme
[7] It is common ground that the Accident Compensation regime is not intended to compensate for a personal injury that is a gradual process, disease, or infection, unless it is a treatment injury, as provided for under s 20(2)(f) of the Act. The operative provisions are ss 26(2), 20(2)(f), 33(1)(d) and 32(2)(a).
[8] Under s 26(2), a personal injury does not include personal injury caused wholly or substantially by a gradual process, disease or infection unless it is personal injury of a kind described in s 20(2)(e)–(h).
[9] Section 20(2)(f) is the relevant subsection. It provides that a person has cover for “personal injury caused by a gradual process, disease or infection that is treatment injury suffered by the person”.
[10] However, under s 32(2)(a), a “treatment injury” does not include a personal injury that is “wholly or substantially caused by a person’s underlying health condition”.
[11] A treatment injury can include injury caused by a delay in treatment. This is clear in s 33(1)(b) and (d) of the Act, where treatment is defined as:
33 Treatment
(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
...
(b) a diagnosis of a person’s medical condition:
...
(d) a failure to provide treatment, or to provide treatment in a timely manner:
[12] As Heath J observed in the Court of Appeal in Accident Compensation
Corporation v Stanley,1 the combined effect of ss 26(2), 20(2)(f), 33(1)(d) and
32(2)(a) is that:
(a) A personal injury is not one caused wholly or substantially by a gradual process, unless it is a treatment injury as defined.
(b) A treatment injury can arise from a failure to provide treatment in a timely manner, but does not include a personal injury that is wholly or substantially caused by the underlying health condition.
The decisions below
[13] The reviewer found there had been a delay in diagnosis and on the balance of probabilities the effect of the delay was a more rapid and aggressive progression of chronic kidney disease, causing a significant worsening in the appellant’s health.
[14] The issues on appeal from that review to the District Court, as stated by Judge Beattie, were: firstly, whether or not as a matter of fact, there had been a delay in diagnosis which amounted to a failure to diagnose IgA nephropathy (the causation
issue); and secondly, whether any delay that might be established had caused a
1 Accident Compensation Corporation v Stanley [2013] NZHC 2765 at [42] (citations omitted).
treatment injury within the meaning of the Act, it being accepted that the appellant’s
medical condition was not a treatment injury but an existing underlying condition.
[15] The Judge recorded that the “claimed treatment injury” was the more aggressive progression of the appellant’s chronic kidney disease. For the appellant it was contended this progression could have been delayed by months, or by as much as two years, had an earlier diagnosis been made and appropriate treatment initiated. The Judge further recorded the appellant’s acceptance that her medical condition was such that it could not have been cured and would inevitably have resulted in end-stage renal failure. The question was whether that end-stage renal failure could have been put off for some limited period of time by the earlier initiation of treatment; and whether the failure to do so had given rise to a treatment injury.
[16] Judge Beattie found there had been a delay in diagnosis amounting to a failure to treat but that this had not caused a treatment injury. The medical condition in issue, IgA nephropathy, was an underlying health condition suffered by the appellant and not attributable to any treatment. The condition of end-stage renal failure was the inevitable consequence of that underlying health condition and could not have been prevented by any earlier treatment. Therefore, because earlier treatment would only have slowed down the end consequence, it did not bring about a new injury. The end consequence was wholly or substantially caused by her underlying condition.
[17] The Judge did not make a finding on the extent to which timely treatment would have delayed end-stage renal failure and the resultant need for dialysis. His Honour did however state that:2
… there is a real question-mark as to whether end stage renal failure would have been delayed.
The issues
[18] The question of law, as framed, envisages a negative act or omission (failure to diagnose and treat), operating as an accelerant of the inevitable natural
progression of a terminal disease.
2 Accident Compensation Corporation v Robertson [2011] NZACC 327 (DC) at [25].
[19] However the question is framed, the issue inevitably is one of causation. The challenge is to find a causal link between that omission and the outcome, which Judge Beattie was not able to do.
[20] Thus, it is necessary for Mrs Robertson to establish on the balance of probabilities that the natural progression of her disease was materially affected by the failure to diagnose and treat her in 2002; and that the end-stage renal failure that occurred in 2004 was not wholly or substantially the result of Mrs Robertson’s underlying health condition.
[21] It is trite that causation can be a question of law. In Cochrane v Accident
Compensation Corporation the Court held:3
[t]he issue of causation is a question of posing first the correct issue of law and then determining the factual issues against the parameters of the prescribed legal test of causation, whether statutory or common law.
[22] A question of law can arise if a finding of fact is made by a Court either in the absence of evidence to support it; or if a view of the facts has been reached which could not reasonably have been entertained.4
[23] As earlier adverted to, the question posed on appeal to this Court is again principally one of causation. Where such a question arises, it will be a matter of fact and degree whether there is a causal nexus found between the personal injury and any failure to treat; or whether the personal injury was caused by an underlying health condition and is therefore expressly excluded from cover.
Submissions
Appellant
[24] The case for the appellant is that this is a personal injury for which the Act allows cover. Ms Bagnall referred to s 20(2)(f) and the definition of treatment as
3 Cochrane v Accident Compensation Corporation DC Wellington 217/03, 3 September 2003 at [8].
4 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL); E v Accident Rehabilitation and Compensation Insurance Corporation [2000] NZAR 446 (HC); and Ramsey v Accident Compensation Corporation [2004] NZAR 1 (HC).
including a delay in treatment, relying on the decision in Allenby v H, which although decided under the previous medical misadventure legislation, remains relevant. In Allenby, the Supreme Court found that:
(a) the progression of a disease, such as the enlargement of a cancerous tumour and the spreading of cancer to another part of the body, was a personal injury if caused by medical misadventure.5
(b)The use of the term personal injury in s 20(2)(f) in connection with events that would naturally be described as illnesses rather than injuries indicates that the term is being given an extended meaning.6
[25] Ms Bagnall acknowledged that while the acceleration of an existing condition has been found by the courts not to be eligible for cover under the Act, that line of reasoning has been concerned with accidents rather than with treatment injuries. She suggested that the accident cases are distinguishable, as the Act treats accidents and treatment injuries differently. She referred to the case of Lewes v Accident Compensation Corporation, in which the District Court found there may be an injury for which cover is available if a disease has progressed to a stage at which treatment
could have significantly less effect against the progress of that disease.7 Such an
approach, she argued, has parallels with Mrs Robertson’s case, as she only seeks cover for the period between the failure to diagnose her disease in 2002 and the time at which her kidneys would have failed with treatment. At the latter point, it is accepted her entitlement to cover would cease.
[26] Ms Bagnall submitted that not to give the Act such a generous interpretation renders people with incurable diseases ineligible for cover and means there is a gap
in the legislation.
5 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 at [66].
6 At [76].
7 Lewes v Accident Compensation Corporation DC Wellington 221/06, 14 September 2006 at [20].
Respondent
[27] For the respondent, Ms Miller submitted that a plain reading of the legislation makes it clear there must be a causal link between the disease and the treatment injury. While in some instances this causal element will be satisfied, in the appellant’s case it is not. Treatment may have delayed the inevitable in her case. Equally it may have made no difference at all. This is not a loss of chance approach, but rather a matter of establishing whether the failure to treat was a material and substantial cause of the injury.
[28] Ms Miller submitted that the reasoning applied in cases of acceleration in the context of accidents applies equally to treatment injuries. The appellant is therefore required to establish that the delay in treatment caused its own identifiable injury which she would not have otherwise suffered.
[29] Ms Miller characterised the approach taken on behalf of the appellant as unworkable and ignoring causation. She said each case must be decided on its own facts and there must be parameters for cover.
Judicial consideration of “acceleration” cases
[30] A review of the acceleration cases suggests that acceleration alone cannot be a treatment injury for causation reasons. In McDonald v Accident Rehabilitation and Compensation Insurance Corporation, the District Court found this to be so and this was upheld on appeal to the High Court.8 The facts in McDonald were that Mr McDonald had a fall at work and injured his knees. The operating surgeon’s opinion was that his injuries would have come about in any event, due to a degenerative condition. The accident had however significantly accelerated the
effects of the disease, leading to Mr McDonald's ongoing incapacity. On his behalf, counsel argued that Mr McDonald would have received compensation in terms of the “acceleration rule”, which provided for compensation to be payable where incapacity was attributable to some pre-existing condition and, but for the relevant accident, an
employee would have remained capable. The argument was that where an accident
8 McDonald v Accident Rehabilitation and Compensation Insurance Corporation [2002] NZAR
970 (HC).
triggered the onset of a disease to the point of incapacity, compensation was payable throughout the period for which the worker would otherwise have been able to continue in employment; and payment would only cease at the point at which the natural progression of the disease would have caused incapacity. Thus the entitlement was essentially to compensation for the “lost years”.
[31] On appeal to the High Court, Panckhurst J upheld the District Court Judge’s
finding that Mr McDonald was not entitled to cover, observing:
[29] I agree that the relevant provisions in the Act supply a code. Principles drawn from the previous workers’ compensation scheme or from the common law, in particular those relevant to foreseeability, are not applicable in relation to this legislation. That is not to say that from time to time cases decided in other contexts may not be of assistance. But it is one thing to seek guidance from the reasoning in other related contexts, but another to seek to directly apply the principles drawn from those sources.
[30] With regard to what Mr Hall called the acceleration rule I am satisfied it has no place in the context of the Act. Such rule presupposes on inquiry as to whether, absent the accident, the relevant disease symptoms would have remained dormant. An inquiry of that kind is foreign to s 10. It poses a single test: whether the disease is the whole or the substantial cause of the injury. If so, cover is unavailable regardless that the accident triggered (or accelerated) the progression of the disease.
[32] This approach has been upheld in numerous cases since.9 Applying it to Mrs Robertson’s situation, it inevitably means she is not entitled to cover, as if her disease has been “accelerated” by the treatment failure this would not suffice. No High Court decisions relevant to medical misadventure or decided in the context of treatment injury have cited the acceleration line of reasoning, undoubtedly because, as Panckhurst J held, the acceleration rule has no place in the context of the Act.10
[33] Of some significance to the appellant’s case is the recent decision in ACC v Stanley.11 In that case, rather than “acceleration”, Heath J referred to “exacerbated personal injury”.12 Mr Stanley had been misdiagnosed in relation to “signal
changes” within his spinal cord. His condition continued to deteriorate until a
9 Cochrane v Accident Compensation Corporation [2005] NZAR 193 (HC) and Johnston v
Accident Compensation Corporation [2010] NZAR 673.
10 However, there are some District Court cases – see Becker v Accident Compensation Corporation DC Wellington 42/2006, 22 February 2006; and Williams v Accident Compensation Corporation DC Auckland 273/08, 10 November 2008, albeit briefly.
11 Accident Compensation Corporation v Stanley, above n 1.
12 At [43].
correct diagnosis was made after a period of two years. He underwent corrective surgery, which alleviated his suffering to a large extent, whilst not completely curing his condition. In the District Court, Judge Joyce found the failure to diagnose was a treatment injury for which cover was available, referring to the worsening of Mr Stanley’s condition during the period of non-diagnosis as an exacerbated personal injury, and concluding that it was a personal injury within the meaning of s 26(2) and s 20(2)(f) of the Act. Judge Joyce found there was sufficient evidence available on which to conclude prima facie that the exacerbated personal injury was caused by the delay in referring Mr Stanley to an orthopaedic surgeon, and that this amounted to a failure to treat him in a timely manner.
[34] The critical question on appeal to the High Court was whether Judge Joyce had correctly interpreted s 32(2)(a) “given that he seemingly moved directly from his conclusion that the exacerbated personal injury resulted from a failure to provide treatment in a timely manner to one that cover was available”.13 Heath J found the Judge had not expressly considered whether the exacerbated personal injury was one that was “wholly or substantially caused by [Mr Stanley’s] underlying health condition” and that this issue required a fresh consideration on appeal.14
[35] After reviewing the authorities on the concept of causation, and in particular the judgment of Glazebrook J in Accident Compensation Corporation v Ambros,15
Heath J opined:16
[54] Was Judge Joyce right to find that Mr Stanley had proved a treatment injury? To recapitulate, a treatment injury can arise from a failure to provide treatment in a timely manner, but does not include a personal injury that is wholly or substantially caused by an underlying health condition.
[55] I have already found that there was sufficient evidence for Judge Joyce to conclude that the exacerbated personal injury occurred and prima facie, was caused by the treatment delay. Unless the exacerbated personal injury was wholly or substantially caused by Mr Stanley’s underlying health condition, he is entitled to cover.
[56] No question was ever posed directly to the experts from whom the
Corporation sought advice as to whether an exacerbated personal injury of
13 At [47].
14 At [47].
15 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
16 Accident Compensation Corporation v Stanley, above n 1 (citations omitted).
the type found to exist by the District Court Judge had been caused by the underlying health condition, as opposed to a failure to treat in a timely manner ...
...
[58] Applying the principles set out in Ambros, confirmed in cases such as McEnteer and Sam, and taking account of the different senses in which lawyers and medical people assess questions of causation, it was within the power of the Corporation to put evidence before the Court to assist in assessing the true cause of the exacerbated personal injury. But, it did not do so. In those circumstances, I consider that Judge Joyce was entitled, in the absence of other evidence pointing to the exacerbated personal injury being caused wholly or substantially by the underlying health condition, to find that a treatment injury had been proved. Independently, on the evidence, I reach the same conclusion.
[36] Thus Heath J placed considerable emphasis on causation in finding that the delay in treatment had caused the exacerbated personal injury in the absence of evidence to the contrary.
[37] The decision in Stanley can, however, be clearly distinguished from the present case, as it was the absence of medical evidence enabling an assessment of “the true cause of the exacerbated personal injury” in Mr Stanley’s case, that enabled the Court to find on the balance of probabilities that two years of suffering could
have been avoided had the surgery been performed earlier.17 More significantly, by
way of contrast to the present case, it was also possible to calculate with certainty the period during which the treatment injury occurred; that is, the period of non-diagnosis. As noted, the primary issue in the present case is the extent to which timely treatment would have impacted on Mrs Robertson’s condition and what the considerable body of medical opinion adduced establishes about that.
[38] A similar approach was taken by the District Court in Estate of Ian Sheppard v Accident Compensation Corporation.18 That case concerned a failure to adequately treat a melanoma, which metastasised and caused Mr Sheppard’s death. The basis of the claim by his estate was similar to the present case, as per the
following passage from the judgment:19
17 At [58].
18 Estate of Ian Sheppard v Accident Compensation Corporation [2013] NZACC 117 (DC).
19 At [36].
… progress of the disease could have been delayed by an appropriate course of treatment. The claim is that the failure did in fact cause the consequence of unhindered progression of the disease and earlier death which was not an ordinary consequence of proper treatment.
[39] The Judge appeared to accept that if that were so there could be cover. However, the expert medical evidence could not establish that Mr Sheppard’s condition would have progressed in any other way, had it been appropriately diagnosed and he had received a different course of treatment.
The medical evidence
[40] In Mrs Robertson’s case, an abundance of expert medical opinion was obtained from a number of advisers about the effect that timely diagnosis and treatment might have had on her condition. A brief synopsis follows:
[41] The opinion of Dr Schollum, a nephrologist, was that:
Good control of hypertension and proteinuria can slow the progression of
renal impairment, delaying the requirement for dialysis for many years …
[W]ith earlier diagnosis we may have been able to keep the appellant off dialysis for many years ...
[42] In the opinion of Dr MacDonald, a renal physician, and an experienced independent medical advisor to ACC on renal problems:20
... Had the diagnosis been made earlier then there would have been an opportunity to have implemented treatment that might have slowed down progression of her renal disease.
... If a chronic kidney problem had been diagnosed in 2002 or 20[0]3, then treatment might have delayed the onset of end stage renal failure by a number of months or a small number of years. By the same token it might also have had no benefit at all.
[43] Professor Collins, a renal physician, opined:21
If she had been diagnosed earlier timely treatment with appropriate antihypertensive therapy would have had a strong likelihood of delaying the progression of her kidney disease. However it would be most unlikely to
20 (Emphasis added).
21 (Emphasis added).
have prevented the end stage renal failure but it may have been delayed by many months or years. It is not possible to accurately define the extent to which the delay in diagnosis has made a difference in the appellant’s out come…
[44]
Dr Moughan, a medical advisor for ACC, reviewed the reports
of
Dr MacDonald and Professor Collins, and said:22
The extent of delay appears a matter of speculation not possible to accurately define: although Professor Collins stated he would have expected the time to dialysis would have been substantially lengthened possibly by a few years – on the basis of medical literature (unreferenced), Dr MacDonald stated a small number of years or no benefit at all (giving reasons in support of this conclusion). Hence, if failure to treat were found, it is difficult to determine what difference this would make, if any, to cover.
[45] Dr St George, a general practitioner, observed:
... if there had been a delay in diagnosis, there is no certainty that earlier diagnosis and the institution of ACE inhibition would have substantially altered the outcome.
[46] In summary, the medical evidence is:
Dr Schollum: with earlier diagnosis they may have been able to keep the
appellant off dialysis for many years.
DrMacDonald: treatment might have delayed the onset of end stage renal failure by a number of months or a small number of years, but by the same token it may also have had no benefit. On the balance of probabilities, earlier diagnosis would have made it possible to implement treatment that could have improved the prognosis, but it is not known whether dialysis could have
ultimately been avoided.
Professor Collins: it was not possible to accurately define the extent to which
the delay in diagnosis has made a difference.
Dr St George: there is no certainty earlier diagnosis would have substantially
altered the outcome.
22 (Emphasis added).
Causation in Mrs Robertson’s case
[47] It is clear on a plain reading of s 20(2)(f) of the Act that a causal link between the subject disease and the treatment injury is required. In Mrs Robertson’s case that necessitates determining whether her end-stage renal failure was prematurely caused by the failure to treat her in a timely manner; or whether the end-stage renal failure was wholly or substantially caused by her underlying health condition. Judge Beattie expressed a tentative opinion on this matter, without making a finding. A
fresh consideration on appeal is therefore necessary.23
[48] The leading statement on causation in this context was made by the Court of
Appeal in Accident Compensation Corporation v Ambros:24
[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 the lay and scientific evidence to meet the required standard of proof … The legal method looks to the presumptive inference which a sequence of events inspires in a person with common sense …
[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…
[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 conjecture … 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 …
[49] Applying this approach and on the basis of “facts supported by the evidence
and not on the basis of supposition or conjecture”, the strongest evidence in the
23 See [17] above.
24 Accident Compensation Corporation v Ambros, above n 15.
appellant’s favour is that of Dr Schollum, who opined that with earlier diagnosis “we may have been able to keep the appellant off dialysis for many years”.
[50] His opinion was, however, at variance with that of the other medical advisors. Dr MacDonald took the view that, while treatment may have delayed the onset of end-stage renal failure by a “number of months” or a “small number of years”, it may also have had “no benefit of at all”. Professor Collins opined that it is not possible to accurately define the extent to which the delay in prognosis has made a difference to the appellant’s outcome. Dr Moughan concluded similarly that the extent of delay appears “a matter of speculation not possible to accurately define” and that “it is difficult to determine what difference [a finding of failure to treat] would make, if any, to cover”.
[51] Thus it is clear from the evidence as a whole that it is not possible to establish to a sufficient degree of accuracy the extent to which a delay in treatment may have made any difference to the outcome for Mrs Robertson. She has therefore failed to establish, on the balance of probabilities, that any failure to diagnose her condition in
2002 caused her to suffer premature end-stage renal failure in 2004. Rather, the evidence is that her end-stage renal failure in 2004 was wholly or substantially caused by her underlying health condition.
Discussion
[52] Although this appeal has necessarily been brought as a question of law, it has turned on causation. I have found, on the medical evidence, that the appellant’s end- stage renal failure in 2004 was wholly or substantially caused by her underlying health condition and the evidence does not establish on the balance of probabilities that this was premature and resulted from any failure to diagnose her condition in
2002.
[53] A further point needs to be made.
[54] The phrasing of the question of law as the “accelerated progression of an incurable underlying disease” is problematic in the context of the appellant’s case. The descriptors “accelerate” and “exacerbate” are not semantically apt to describe
the natural progression of a terminal disease. As Panckhurst J found, the acceleration rule, drawn as it was from the principles applicable under the previous Workers’ Compensation Scheme or from the common law (and with particular relevance to foreseeability), has no application under the ACC legislation.
[55] In the appellant’s case, the progression of her disease was not triggered or accelerated or exacerbated by any failure to diagnose her condition in a timely manner. While her disease was able to continue unhindered in its progression to its inevitable conclusion, the failure to treat in 2002 was not causative or a contributor to the progression of the disease.
[56] That is not to say cover will never be available for failure to diagnose an incurable disease. Cover may be available where there is sufficient medical evidence to establish, on the balance of probabilities, that timely diagnosis and treatment would have intervened to materially delay the inevitable outcome of an incurable disease by an ascertainable period of time. In every case it will be a question of evidence and degree.
Result
[57] The appeal is dismissed.
Goddard J
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