Shand v Accident Compensation Corporation - [2020] NZHC 2743

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-706

[2020] NZHC 2743

BETWEEN
ISOBEL SHAND

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 30 September 2020

Counsel:

J P Miller for the Appellant

S M Bisley and M R Evans for the Respondent

Judgment:

16 October 2020

JUDGMENT OF CULL J

[1] Ms Shand has had two kidney transplants and is a long-term renal patient. Ms Shand’s second kidney transplant failed. She sought cover from the Accident Compensation Corporation (ACC) under the Accident Compensation Act 2001 (the Act) for treatment injuries and was declined.

[2] Ms Shand now applies for special leave to appeal the District Court decision declining her cover for treatment injuries,1 which include cortical necrosis (the death of the outer part of the kidney) and an increased level of antibodies thus reducing her chances of a further transplant in the future. Ms Shand has applied for leave to appeal, which was refused by the District Court.2

1 Accident Compensation Act 2001, s 162(3); and Shand v Accident Compensation Corporation
[2018] NZACC 152 [Decision under appeal].
2 Section 162(2); and Shand v Accident Compensation Corporation [2019] NZACC 135 [Leave decision].

SHAND v ACCIDENT COMPENSATION CORPORATION [2020] NZHC 2743 [16 October 2020]

[3]Special leave to appeal is sought on the following questions of law:

(a)Did the District Court err in its interpretation of what constitutes a sufficient departure from a standard under s 33(1)(c) of the Act (the decision on the treatment to be provided) following Adlam v Accident Compensation Corporation?3

(b)Did the District Court err in its interpretation of what constitutes a sufficient departure from a standard under s 33(1)(e) of the Act (obtaining informed consent) following Adlam?

(c)Did the District Court err in finding that a specific cause of cortical necrosis had to be identified under s 33(1)(a) of the Act (the giving of treatment) if the injury occurred within a constant state of hospital treatment?

Background

[4] Ms Shand was 11 years old when she received her first kidney transplant. This kidney functioned well for a time but slowly failed, necessitating a return to haemodialysis (the use of a dialysis machine) in 1999.

[5] Eight years later, in April 2007, Ms Shand underwent her second kidney transplant, which is the subject of this special leave to appeal hearing. This transplant failed due to cortical necrosis. This means the death of tissue in the outer part of the kidney. As a result, Ms Shand’s immune system was sensitised, with increased antibody levels reducing her chances of finding a suitable donor in the future. Ms Shand needs ongoing dialysis.

[6] On 1 October 2014 Ms Shand sought cover from ACC for a treatment injury. The claim form stated:

Renal transplant: kidney rejected immediately after surgery, due to inappropriate kidney and damage during surgery.

3 Adlam v Accident Compensation Corporation [2017] NZCA 457

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2743
Decision Date: 16 October 2020

CaseChat Overview and Summary

Shand v Accident Compensation Corporation [2020] NZHC 2743 involved a claim by Ms Shand for cover under the Accident Compensation Act 2001 (the Act) for treatment injuries. Ms Shand, who had undergone two kidney transplants, claimed that the second transplant failed due to cortical necrosis and an increase in antibodies. The Accident Compensation Corporation (ACC) declined to provide cover, and the District Court dismissed Ms Shand’s appeal. Ms Shand sought special leave to appeal to the High Court on three questions of law: (a) whether the District Court erred in its interpretation of what constitutes a sufficient departure from a standard under s 33(1)(c) of the Act following Adlam v Accident Compensation Corporation; (b) whether the District Court erred in its interpretation of what constitutes a sufficient departure from a standard under s 33(1)(e) of the Act following Adlam; and (c) whether the District Court erred in finding that a specific cause of cortical necrosis had to be identified under s 33(1)(a) of the Act if the injury occurred within a constant state of hospital treatment.

The High Court considered each issue in turn. The Court found that the District Court had correctly applied the Court of Appeal’s decision in Adlam regarding the standard of departure under s 33(1)(c). The Court held that there was no error in the District Court’s factual finding that the decision to provide treatment was not a departure from a standard, as the alternative decision would have been irresponsible. Regarding informed consent under s 33(1)(e), the Court found that the District Court had applied the correct legal test and that there was no error in the Judge’s approach. The Court concluded that there was no departure from a proper standard of care in providing sufficient information for Ms Shand to make an informed decision. Finally, the Court found that there was no error in the Judge’s approach on causation under ss 33(1)(a) and 32(1)(b). The Court held that while the injury was caused by treatment, the cause of the cortical necrosis was uncertain, and a robust finding on causation could not be made.

The application for special leave to appeal was declined.

Orders