Sellwood v Accident Compensation Corporation
[2017] NZHC 2604
•25 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV 2017-485-496 [2017] NZHC 2604
BETWEEN KERRY SELLWOOD
First Appellant
AND
GREGORY DAYMAN Second Appellant
AND
SHERYL STANFIELD Third Appellant
AND
LESLIE MARINKOVICH Fourth Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 16 October 2017 Counsel:
J M Miller and B J Peck for Appellants
S M Bisley and B R McKinnon for RespondentJudgment:
25 October 2017
JUDGMENT OF ELLIS J
[1] Each of the appellants has had a hip replacement involving the implantation of a metal-on-metal hip prosthesis known as the De Puy Articular Surface Replacement (DPASR). The DPASR has been the subject of a world-wide recall because it has an unacceptably high failure rate.1 The relevant mechanism of failure is that some patients with DPASR prostheses suffer from metallosis, caused by the
release of metal ions into a patient’s bloodstream and surrounding tissue. In high
1 The DPASR was withdrawn from the Australasian market in late 2009. It was then the subject of a worldwide recall by De Puy on 24 August 2010.
SELLWOOD v ACC [2017] NZHC 2604 [25 October 2017]
doses, and in some cases, those metal ions cause pseudotumours, loosening, and muscle, bone and/or tissue damage.
[2] Some 75 New Zealand recipients of the DPASR prostheses have suffered the effects of such failure and have had cover under the Accident Compensation Act
2001 (the Act) for “treatment injury” confirmed.
[3] By contrast, the appellants have not been diagnosed as having metallosis.2
Two have had their DPASR prostheses removed, at De Puy’s cost. The other two have been advised that their prostheses (at this point) are working well; removal is not recommended. They nonetheless seek to establish that they, too, have “cover” under the Act for treatment injury arising from the implantation of the prostheses. Cover has been denied by the Accident Compensation Corporation (ACC).
[4] ACC’s position has been upheld by the District Court in four separate decisions, primarily on the ground that the applicants have suffered no personal (physical) injury.3 Leave to appeal has, nonetheless been granted on the following
question:4
Is the implantation of a defective prosthesis a physical injury entitling the claimant to cover for a treatment injury?
The statutory provisions
[5] Section 20 of the Act relevantly provides:
20 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts or work-related mental injury)
(1) A person has cover for a personal injury if—
2 All metal-on-metal prostheses release metal ions into the bloodstream and surrounding tissue and are regarded as failing when an excessive amount of such ions are released into the bloodstream and surrounding tissue. While DPASR prostheses have a higher failure rate than other similar prostheses, the majority of DPASR prostheses do not fail.
3 Sellwood v Accident Compensation Corporation [2016] NZACC 207; Stanfield v Accident Compensation Corporation [2016] NZACC 255; Dayman v Accident Compensation Corporation [2016] NZACC 242; and Marinkovich v Accident Compensation Corporation [2016] NZACC 246.
4 Sellwood v Accident Compensation Corporation [2017] NZACC 60.
(a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and
(b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and
(c) the personal injury is described in any of the paragraphs in subsection (2).
(2) Subsection (1)(c) applies to—
…
(b) personal injury that is treatment injury suffered by the person:
…
[6] So it is necessary to consider the definitions of both “personal injury” and
“treatment injury”.
[7] “Personal injury” is relevantly defined in s 26(1) as including:5
(b) physical injuries suffered by a person, including, for example, a strain or a sprain[.]
[8] And “treatment injury” is relevantly defined in s 32:6
(1) Treatment injury means personal injury that is—
(a) suffered by a person—
…
(ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; [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—
5 The definition also refers (at (e)) to “damage (other than wear and tear) to … prostheses that replace a part of the human body”. No such damage to the appellants’ DPASR prostheses is said to have occurred here.
6 “Treatment” is defined in s 33(1) to include (unsurprisingly) “the giving of treatment”.
(i) the person’s underlying health condition at the time
of the treatment; and
(ii) the clinical knowledge at the time of the treatment.
[9] Accordingly, in order to obtain cover the appellants must establish that they have suffered a personal injury; and then demonstrate:
(a) that the injury was “caused by treatment”; and
(b) that the injury was not a “necessary part, or ordinary consequence” of
the treatment.
Discussion
[10] The appellants say that the surgical implantation of a “defective” prosthesis satisfies these requirements. What they say is “defective”, however, is not a specific prosthesis that has actually failed. As noted earlier, none of the appellants’ prosetheses has (yet) done so. Rather, the appellants’ case is based on a sort of res ipsa loquitur proposition, namely that all De Puy DPASR prostheses are inherently defective (as evidenced by the world-wide recall) and that any person who has had one surgically implanted must therefore have suffered a personal (treatment)
injury.7
[11] In terms of the statutory requirements, I articulate Mr Miller’s argument as
best I can:
(a) the surgical implantation process involves the infliction of a physical injury (incision removal of the hip joint and insertion of a “defective” prosthesis) and therefore constitutes a personal injury;
(b) the implantation is a treatment injury because:
7 As I understand it, they want ACC to contribute to the costs of the blood and other monitoring tests necessary to determine whether or not metallosis has developed and also the security of knowing that they have cover in the event that metallosis does develop. It is, perhaps, important to note that mental injury forms no part of the appellants’ case.
(i)it is an injury suffered by a person receiving treatment from, registered health professionals;
(ii) the implantation is caused by (the result of) treatment; and
(iii)it is not a necessary part, or ordinary consequence, of the treatment, because the thing that was implanted is defective.
[12] The central difficulty with this reasoning is that, as a matter of fact, the prostheses have not been shown to be defective. The mere fact of recall does not make them so.8 While DPASR failure rates are higher than is considered acceptable,
the majority of them have not failed.9 And if the word “defective” is removed from
(a) and (b)(iii) above it is readily apparent that there can be no treatment injury because the only personal injury (inherent in the process of surgical implantation) was a “necessary part, or ordinary consequence” of the treatment (the surgical implantation).
[13] So in reality, as Mr Bisley submitted, the appellants’ position is simply that they should have cover because there is a risk of their prostheses causing them harm in the future.
[14] There are no decided cases involving a claim relating to a risk of personal injury which has yet to be realised. This seems to me to be unsurprising. But Mr Bisley pointed to authorities relating to risk in a causation context which confirm that the legislation is “focuses on outcomes” and, accordingly, that “risk or potentiality of injury is not enough to attract cover”.10 But the more fundamental
point is that cover for an as yet uncrystallised risk of injury simply does not fall
8 Although the appellants have suffered some pain, dysfunction and elevated blood ion readings none of these things by themselves are said to constitute an injury and nor are they severe or unusual enough to establish that the specific prosthesis has failed.
9 The statistics before the Court (which may not be definitive) were that for the DPASR there is a
5.16% failure rate at two years (as compared to an expected rate of one per cent); for resurfacing ASR prostheses there is a failure rate of 12 per cent, and for resurfacing the DPASR XL, there is a failure rate of 13 per cent at five years, and for the DPASR XL, the failure rates are: 21-35 per cent at four years, 37 per cent at 4.5 years and 49 per cent at 6 years.
10 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR
374 (CA) at [24] and [25]; see also Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
within the plain meaning of the relevant statutory provisions; “physical injury” is not
defined as (and cannot sensibly be interpreted to mean) the risk of physical injury.
[15] Nor do analogies with the pregnancy cases assist the appellants here.11 Those cases make it clear that a profound and unintended physical consequence of a failed surgery can be a personal (treatment) injury. Here, there were (by all accounts) error free surgeries, the only physical consequence of which is precisely that which was intended, namely successful hip replacements, albeit using prostheses that would not be used were the surgery to occur today.12
[16] I am also unable to accept the appellants’ submission that the orthodox “generous and unniggardly” interpretive approach is capable of yielding them the outcome they seek. Although reference was, in particular, made to s 3(a) of the Act, which establishes as a primary function of the Corporation “the promotion of measures to reduce the incidence and severity of injury”, that prophylactic purpose appears to me to have little to do with the interpretation of the core provisions by
which coverage is conferred.13 And in any event, I am unable to see how even the
most generous purposive approach could lead to a conclusion that the requirement for a “physical injury” should be interpreted as including a risk of such injury in future.
[17] Lastly, I mention that the Court of Appeal’s decision in Adlam v Accident
Compensation Corporation was released a few hours after the hearing before me.14
That decision, too, was concerned with treatment injury, albeit in the context of a failure to treat. In my view, however, it has little or no bearing on the issues at hand.
I therefore merely note the Court’s statements that:
11 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.
12 Judge Maclean held that at the time of the implants the surgeons could not reasonably have been aware of the problems with it. It follows that there was no reason not to use the DPASR. And
the definition of “treatment injury” requires all the circumstances of the treatment to be taken
into account, including the clinical knowledge at the time of the treatment.
13 Rather, it appears to relate primarily to Part 7 of the Act and, in particular, s 263. The Act’s
injury prevention and compensatory functions are necessarily separate.
14 Adlam v Accident Compensation Corporation [2017] NZCA 457.
(a) whether the injury suffered was or was not a necessary part or ordinary consequence of treatment is a question of fact;15 and
(b) there is a need to “focus on the words Parliament has actually used”.16
Result
[18] The upshot of the foregoing is that the question posed by the District Court does not arise (and cannot sensibly be answered) on the present facts. The appellants’ prostheses have not, as a matter of fact, been shown to be defective. The successful implantation of a functioning prosthesis is not a treatment injury, regardless of a risk that the prosthesis may cause injury in future. The appellants have, accordingly, no entitlement to cover.
[19] ACC does not seek costs.
Rebecca Ellis J
15 At [42].
16 At [65].
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