Thompson v Accident Compensation Corporation

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000279 [2015] NZHC 1640

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an appeal against under section 149 of the Accident Compensation Act 2001

BETWEEN

GRAEME THOMPSON Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	8 July 2015
Counsel:	A C Beck for Appellant J P Coates for Respondent
Judgment:	14 July 2015

JUDGMENT OF COLLINS J

Summary of judgment

[1]      I am allowing Mr Thompson’s appeal from a decision of the District Court, in which Judge Beattie upheld a decision of the Accident Compensation Corporation (ACC) declining Mr Thompson cover for “treatment injury”.  I explain the meaning of “treatment injury” in paragraphs [30] to [33] of this judgment.

[2]      I have concluded Judge Beattie made two errors of law:

(1)He did not approach the issue of causation in accordance with the law of New Zealand.

THOMPSON v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 1640 [14 July 2015]

(2)He  reached  conclusions  on  contentious  issues  without  providing reasons for doing so.

[3]      Mr Thompson’s case is remitted back to the District Court for rehearing.

Context

[4]      On 12 January 2009, Mr Thompson underwent cardiac surgery to replace an aortic valve. At the time Mr Thompson was 59 years old.

[5]      The surgery successfully addressed Mr Thompson’s cardiac issues.  However, during the post-operative period it was noted Mr Thompson was confused.   Mr Thompson was discharged from hospital on 20 January 2009.

[6]      At a follow-up consultation it was realised Mr Thompson’s memory was

abnormal.

[7]      During the year following surgery Mr Thompson experienced problems with cognitive function.  He had trouble remembering people and he was forgetful.

[8]      An MRI scan of Mr Thompson’s brain was performed on 3 February 2010, a little over a year after the cardiac surgery. Two regions of infarctions1 were noted:

(1)       a small infarct in the left optical lobe;2 and

(2)       multiple lacunar infarctions in the region of the basal ganglia.3

[9]      The lacunar infarctions in the basal ganglia were reported to be “probably chronic and old”.4

1      An infarct is dead tissue caused by a lack of oxygen supplied to the affected area.

2      The optical lobe is located in the back region of the brain. It houses the portions of the brain that receive visual information from the eyes and optic nerve and organise it into images the brain can recognise.

3      The basal ganglia is the region of the base of the brain that is associated with a variety of functions, including control of voluntary movements, routine behaviours, cognition and emotion.

4      MRI Brain Scan Report dated 5 February 2010.

[10]     On 11 May 2010, Mr Thompson’s general practitioner lodged a “treatment injury” claim with ACC.

[11]     On 20 July 2010, Dr Baker, a neurologist, prepared a report.  Although he said it was difficult to be certain, he noted small vessel disease can sometimes be associated with significant “valvular stenosis”,5  and that there were clearly changes to Mr Thompson after the cardiac surgery, which is…