Russell v Auckland District Health Board
[2019] NZHC 515
•22 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-397
CIV-2019-404-62 [2019] NZHC 515
BETWEEN BRIAN LESLIE RUSSELL
Plaintiff
AND
AUCKLAND DISTRICT HEALTH BOARD
First Defendant
HEALTH AND DISABILITY COMMISSIONER
Second Defendant
Hearing: 20 March 2019 Appearances:
Applicant in person
A J F Perkins QC for First Respondent S R G Judd for Second Respondent
Judgment:
22 March 2019
JUDGMENT OF LANG J
[on applications to strike out proceeding]
This judgment was delivered by me on 22 March 2019 at 11.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
RUSSELL v AUCKLAND DISTRICT HEALTH BOARD [2019] NZHC 515 [22 March 2019]
[1] Mr Russell suffers from a condition known as age related wet macular degeneration of both eyes. This is apparently a treatable but not curable condition. Mr Russell has undergone treatment in both New Zealand and Australia for this ailment. Most recently, he has been treated by doctors at the Greenlane Hospital. The doctors are employed by the first respondent, the Auckland District Health Board (the Board).
[2] Mr Russell is dissatisfied with the treatment he has been afforded at Greenlane Hospital. He has therefore filed this proceeding, in which he seeks various forms of relief against the Board in its capacity as the employer of the doctors who have treated him to date.
[3] Mr Russell also made a complaint about the treatment he has received to the second respondent, the Health and Disability Commissioner (the Commissioner). The Commissioner responded by referring Mr Russell to the Nationwide Health and Disability Advocacy Service. Mr Russell is not satisfied with this. He has added the Commissioner as a defendant to this proceeding as a result.
[4] Both defendants have responded by applying for an order that the claims against them be struck out.
Applicable principles
[5] The principles that apply to an application to strike out a proceeding are well established. They were summarised by the Court of Appeal in Attorney-General v Prince & Gardner,1 and endorsed by the Supreme Court in Couch v Attorney- General.2 In short, where the applicant contends the statement of claim contains no arguable cause of action the Court proceeds as follows:
(a)It assumes the plaintiff will be able to prove the facts pleaded in support of the claim.
(b)The claim or cause of action must be clearly untenable.
1 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA).
2 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.
(c)The jurisdiction to strike out a claim is to be exercised sparingly and only in clear cases.
(d)It is generally only permissible to refer to affidavit evidence when such evidence does not contradict the pleadings.
[6] Where the applicant contends the claim is vexatious, frivolous or otherwise an abuse of process a more expansive approach may be taken. In this context it is permissible to have regard to evidence filed by both parties although the Court will not generally be in a position to resolve conflicts in the evidence. The Court may strike out a claim under this head where, for example, the plaintiff has brought the claim for an improper purpose or to gain an improper collateral advantage.3 It may also strike out a claim where the plaintiff is using it to re-litigate matters that have already been determined in earlier proceedings.4
[7] Importantly, however, the courts must exercise their jurisdiction on matters properly brought before them and it is important to preserve freedom of access to the courts. Equally, the courts should be alert to misuse of its processes and be prepared to exercise the power to stay or strike out a proceeding where the interests of justice demand it.5
Procedural issues
[8] Mr Russell originally sought to advance his claims utilising the originating application procedure. He filed an originating application that was allocated the proceeding number CIV-2019-404-62. Issues arose as to whether the originating application procedure was appropriate for claims of this type. Mr Russell then filed a separate statement of claim against each defendant.
[9] The Registry was not aware Mr Russell intended the two statements of claim to replace the originating application he had filed in CIV-2019-404-62. It therefore
3 Williams v Spautz (1992) 174 CLR 509 (HCA) at 528 and 536.
4 Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ (HC) at 586.
5 Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [31], citing Williams v Spautz, above n 3, at 519.
allocated the statements of claim the new proceeding number CIV-2019-404-397. To rectify the situation that has arisen I now make an order under r 10.12 of the High Court Rules 2016 consolidating the two proceedings under CIV-2019-404-397.
The statements of claim
[10] Both statements of claim commence with 18 identical paragraphs in which Mr Russell summarises the treatment he has received in both New Zealand and Australia. It then contains the following summary:
Summery [sic]
Injections have given on a three monthly basis in the left eye until recently when there has been pressure to have monthly injections in the left eye, possibly to justify Dr Malik’s claim that Avastin is only effective for 4-6 weeks, despite this statement the Avastin has last [sic] each time for 3 plus months, and as previously mentioned had no vision problems from 30 November 2017 until 17 March 2018 with a slight loss of vision in the last couple of weeks.
I started noticing vision loss about mid April 2018 reporting this at each appointment over the next few months. I have complained about pain in the right eye, at times taking Paracetamol Tablets to control eye pain, my eye pressure increased and was prescribed extra eye drops, I would latter [sic] increase the number of eye drops to 8-9 to control eye pressure up from the three that were working well, I have lost most of my peripheral vision in the right eye, I have lost some depth of field vision, and recently had clear distortion using a Amsler Grid and recently lost all sense of sight in the right eye and a magnifying glass has been in regular [sic] for some time now a lot more than I have ever needed.
[11] Following this summary, the statements of claim contain a prayer for relief against the respondent to which the statement of claim relates.
[12]The prayer for relief against the Board is as follows:
Relief Sort [sic] from the first respondent.
1/ That the first respondent recognizes the breaches of rights under the Health and Disability [Code of Health and Disability Services Consumer’s Rights] Regulations 1996 Schedule: Code of Health and Disability Services, for the following breaches.
[a] Consumers have rights and providers have duties [3][a] inform consumers of their rights, as mentioned in paragraph 5 Causes of Action
[b] Breach of right 1 [1] every consumer has the right to be treated with respect, my opinion regarding the loss of sight hasn’t been respected or my knowledge of wet macular degeneration hasn’t been recognized.
[c] Breach of right 2 Right of freedom from discrimination, coercion, harassment, and exploitation
Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial, or other exploitation. Because “Im not a Muslim” as mentioned in paragraph 4 may be the reason for the actions of Dr Maliks abuse of a position of trust.
[d]Breach of right 4
[1] Every consumer has the right to have services provided with reasonable care and skill. See paragraph 6 / 7 / 8 / 11 / 13 / 14 / 16 /
[3] Every consumer has the right to have services provided in a manner consistent with his or her needs. See paragraph 1 / 2 / 3 / and 4 /
[4] Every consumer has the right to have services provided in a manner that minimizes the potential harm to, and optimizes the quality of life of that consumer. See paragraphs 6 / 7 / 8/ 11 / 13 / 14 / 16 /
see [1] [2] and [4] wet macular degeneration in both eyes and with the right eye not treated will ultimately lose sight in that eye, and throughout this document.
[e]Breach of right 6
[3] Every consumer has the right to honest and accurate answers to questions relating to services, including questions about
[a]the identity and qualifications of the provider see paragraphs 6 and 12
[e] Breach of right 7
[8] Every consumer has the right to express a preference as to who will provide services and have that preference met where practicable.
See paragraphs 4 and 5
2/ Pay Exemplary Damages to the sum of $400,000-00 Four Hundred Thousand Dollars in the hope that this prevents any further victimizing of any person for religious, political, or other beliefs.
3/ That the first respondent implements a program to ensure that the public health system isn’t the appropriate forum for victimizing anybody for religious, political, or other beliefs.
4/ That the first respondent is involved in a setting a robust treatment regime in line with tried and tested protocols.
[13] The statement of claim contains the following prayer for relief against the Commissioner:
Relief Sort [sic] from the Second respondent.
1/ That the second respondent issues a declaration pursuant s 50 breach of rights under the Health and Disability [Code of Health and Disability Services Consumer’s Rights] Regulations 1996 Schedule: Code of Health and Disability Services, for the following breaches.
[a] Consumers have rights and providers have duties [3][a] inform consumers of their rights, as mentioned in paragraph 5 Causes of Action
[b] Breach of right 1 [1] every consumer has the right to be treated with respect, my opinion regarding the loss of sight hasn’t been respected or my knowledge of wet macular degeneration hasn’t been recognized.
[c] Breach of right 2 Right of freedom from discrimination, coercion, harassment, and exploitation
Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial, or other exploitation. Because “I’m not a Muslim” as mentioned in paragraph 4 may be the reason for the actions of Dr Maliks abuse of a position of trust
[d]Breach of right 4
[1] Every consumer has the right to have services provided with reasonable care and skill. See paragraph 6 / 7 / 8 / 11 / 13 / 14 / 16 /
[3] Every consumer has the right to have services provided in a manner consistent with his or her needs. See paragraph 1 / 2 / 3 / and 4 /
[4] Every consumer has the right to have services provided in a manner that minimizes the potential harm to, and optimizes the quality of life of that consumer. See paragraphs 6 / 7 / 8/ 11 / 13 / 14 / 16 /
See [1] [2] and [4] wet macular degeneration in both eyes and with the right eye not treated will ultimately lose sight in that eye, and throughout this document.
[e]Breach of right 6
[3] Every consumer has the right to honest and accurate answers to questions relating to services, including questions about
[a]the identity and qualifications of the provider see paragraphs 6 and 12
[e] Breach of right 7
[8] Every consumer has the right to express a preference as to who will provide services and have that preference met where practicable.
See paragraph 4 and 5
2/ That the Director of Proceedings file a claim under section 50 of The Health and Disability Act 1994 in respect of the breaches of rights 1 [1], 2, 4,
[1] [3] [4], 6, 7 to the Human Rights Review Tribunal.
3/ That the second respondent refers the Doctors involved as in paragraph 18 to the Medical Council and subsequently to the Health Practitioners Disciplinary Tribunal, although considering the unusual situation this may be imposable [sic] unless done in a formal legal situation.
4/ That the second respondent is involved in setting a robust treatment regime in line with tried and tested protocols.
The arguments
[14] The essential arguments for both sides can be summarised succinctly. Counsel for both defendants contend that the statements of claim contain no arguable causes of action against their clients and that the claims are vexatious, frivolous and an abuse of the Court’s process. They also say the Court could not grant any of the relief that Mr Russell seeks. They argue the claim should be struck out for that reason alone.6
[15] In addition, Mr Judd for the Commissioner points out that the facts pleaded in the opening paragraphs of the statement of claim do not refer to the Commissioner at all. As a result, he submits the Court would have no jurisdiction to grant any relief against the Commissioner.
[16] Mr Russell argues that he is suffering ongoing harm as a result of the failure of the doctors at Greenlane Hospital to treat him in an appropriate fashion. He says he would not have been obliged to issue this proceeding if the medical practitioners who have treated him had done so in a manner appropriate to the condition from which he knows he suffers. He asks the Court to permit the proceeding to continue so that he can obtain redress for the manner in which the Board has breached his rights under the health and disability legislation and caused him physical harm.
6 Rabson v Judicial Conduct Commissioner [2016] NZHC 2539 at [31].
Decision
The claim against the Board
Does the statement of claim contain a tenable cause of action?
[17] At the heart of Mr Russell’s claim is a dispute between Mr Russell and the doctors who have treated him regarding the nature of his condition and the appropriate treatment for it. Mr Russell maintains the doctors have failed to properly diagnose his condition and have treated him inappropriately as a result. He considers he needs treatment to his right eye, and says the ongoing failure to treat that eye has caused him physical harm. He also believes it may lead to him becoming blind in the right eye when his condition is readily treatable.
[18] The evidence filed in support of the application shows that the doctors consider Mr Russell’s right eye is stable but that he requires ongoing treatment to his left eye. They also say there is a risk that further treatment of the right eye will result in Mr Russell suffering a complete loss of sight in that eye. As a result, they are not prepared to treat Mr Russell’s right eye further.
[19] I accept the Board’s argument that the Court has no power to grant most of the relief that Mr Russell seeks against it. It has no power, for example, to direct the Board to “recognise” the breaches of Mr Russell’s rights under the health and disability legislation or to order the Board to implement a programme to ensure the public health system is not the appropriate forum for victimising persons for their religious, political or social beliefs. Nor could it realistically require the Board to be involved in “setting a robust treatment regime in line with tried and tested protocols”, whatever that term may mean.
[20] The evidence filed in support of the application also suggests that the doctors who have treated Mr Russell genuinely believe they have diagnosed and treated his condition correctly. This is not, however, an application by the Board for summary judgment. In a strike out application the Court must proceed on the basis that the plaintiff can establish the pleaded facts. As I have already observed, the Court cannot resolve disputed issues of fact in the present context.
[21]The statement of claim against the Board seeks exemplary damages of
$400,000 against the Board for the harm that its doctors have caused to Mr Russell. In Bottrill A, the Privy Council confirmed that an action for exemplary damages for causing physical injury is available where the defendant has caused harm to another person deliberately or was subjectively reckless in doing so.7 In order to succeed under this head Mr Russell would therefore need to prove that the doctors who have declined to treat him intended thereby to cause him physical harm. Alternatively, he would need to show they knew there was a risk that failing to treat his right eye could cause him physical harm but nevertheless elected to run that risk by declining to provide treatment.
[22] The statement of claim is currently defective because it does not expressly allege that the Board is liable because its employees have intentionally or recklessly acted in that way. That defect could be cured easily, however, by appropriate amendment.
[23] Ordinarily a claim for exemplary damages in a claim of this type would not be amenable to an application for strike out because of the requirement that the pleadings be treated as correct. Furthermore, the viability of the claim depends on the subjective intention and knowledge of the defendant. That cannot normally be assessed on an application for strike out because affidavit evidence may only be considered to the extent that it does not contradict the pleadings.
[24] I have concluded it would not be appropriate to bring Mr Russell’s claim for exemplary damages to an end by way of strike out because, properly pleaded and particularised, it is tenable in law. I therefore decline to strike out the claim for exemplary damages. Mr Russell is to file and serve an amended statement of claim within 21 days to rectify the deficiencies identified in this judgment.
Is the proceeding vexatious, frivolous or otherwise an abuse of the Court’s process?
[25] I have no doubt that Mr Russell has issued this proceeding because of his genuine belief that he has suffered and will continue to suffer serious physical harm
7 Bottrill v A [2003] 2 NZLR 721 at 740 (PC).
because of the failure to treat his right eye. He may be right or he may be entirely wrong about that. The evidence for the Board is certainly to the effect that the medical practitioners who have treated him all believe they have diagnosed and treated his condition correctly. There can be no suggestion, however, that Mr Russell is acting vexatiously or for an improper motive. Furthermore, the subject matter of the claim cannot be regarded as so trifling as to be unworthy of the Court’s attention. It follows that it would be wrong at this stage to strike the claim out as not disclosing a tenable cause of action.
[26] I have reached this conclusion with some reluctance because, although I accept Mr Russell has a tenable cause of action and is genuine in his motives, the weight of the evidence is to the effect that his views are patently incorrect. His claim may therefore be vulnerable to an application by the Board for summary judgment. In considering a defendant’s application for summary judgment the Court is not obliged to assume the plaintiff can prove the pleaded facts. It is entitled to consider the evidence adduced by both parties to determine whether the plaintiff’s claim is arguable not only on the law but also on the facts.
The claim against the Commissioner
[27] The position is very different so far as the claim against the Commissioner is concerned. Mr Russell does not plead any facts that could give rise to a claim against the Commissioner. Furthermore, this Court does not have the power to grant any of the forms of relief Mr Russell seeks against the Commissioner.
[28]Mr Russell’s claim against the Commissioner is accordingly struck out.
Costs
[29] Mr Russell has represented himself and is therefore not entitled to costs against the Board even though he has succeeded in defending the strike out application advanced on its behalf.
[30] The application by the Commissioner has succeeded. The Commissioner is therefore entitled to an award of costs against Mr Russell on a Category 2B basis together with disbursements as fixed by the Registrar.
Next event
[31] The Registrar is to arrange a telephone conference before an Associate Judge on the first available date after 20 April 2019 so that further directions can be given in relation to the claim against the board.
Lang J
Counsel:
A J F Perkins QC, Auckland S R G Judd, Auckland
Copy to:
B L Russell, Auckland
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