Thompson v Accident Compensation Corporation
[2015] NZHC 1640
•14 July 2015
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 RespondentJudgment:
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 a “well-known complication” from the type of surgery performed on Mr Thompson.6
[12] On 28 July 2010, Dr Wallis, a neurologist, provided advice to ACC. He said there was:7
… insufficient evidence in the medical records to determine a definite causal relationship between the cardiac surgery and [Mr Thompson’s] mental and psychiatric symptoms described in detail after the surgery.
[13] On 25 August 2010, Dr Brunton, a cardiac surgeon, reported to ACC. Dr Brunton said there appeared to be:8
… a direct cause and effect relationship between the replacement of [Mr Thompson’s] aortic valve and the development of his neurological issues.
Dr Brunton concluded Mr Thompson had suffered a personal injury that was caused by treatment.
[14] On 15 November 2010, Mr Thompson was assessed by a psychologist. She concluded Mr Thompson had memory and cognitive difficulties consistent with the findings of the MRI scan which had revealed lacunar infarctions in the region of Mr Thompson’s basal ganglia.
[15] On 23 November 2010, Dr Wallis provided a report to ACC. He advised:
(1) it was very likely Mr Thompson had vascular disease of the brain that
could not “entirely be attributed to cardiac surgery”;9
5 Narrowing or blockage of one or more valves of the heart.
6 Report of P Baker, 20 July 2010 at 2.
7 Treatment Injury Advice of W E Wallis, 28 July 2010 at 2.
8 Report of R W Brunton, 25 August 2010 at 3.
(2) “that the overall neurological picture [could not] be attributed only to
the cardiac surgery of 21.1.09” (emphasis in original);10 and
(3) the cardiac surgery “could have aggravated a pre-existing propensity
for ischaemic brain disease”.11
[16] On 9 December 2010, ACC advised Mr Thompson it was declining his application for cover.
[17] Mr Thompson applied for a review. His application for a review was supported by a report from Dr Newburn, a neuropsychiatrist, dated 25 March 2011, who thought Mr Thompson had probably sustained a treatment injury arising from the cardiac surgery performed on 12 January 2009.
[18] In a comprehensive decision dated 10 May 2011, the ACC reviewer quashed ACC’s decision. She directed that ACC seek further information from various specialists because she did not have enough information to make a decision in Mr Thompson’s case.12
[19] In her 10 May 2011 decision, the ACC reviewer directed that the specialists who reassessed Mr Thompson’s case not consider a report from Dr Titchener, a general practitioner, who saw Mr Thompson on one occasion just prior to his cardiac surgery. Dr Titchener said in a letter dated 4 June 2010 that she did not think Mr Thompson’s cognitive issues were related to his cardiac surgery. The reviewer said Dr Titchener’s report was not consistent with other evidence and it needed to be
put to one side.13
[20] Between 13 April 2011 and 19 July 2011, ACC received four further reports from Dr Wallis, Dr Newburn, Dr Baker and Dr Brunton. ACC also received a report
from Dr Luke, a cardiologist, who said there was “a reasonable probability that
9 Report of W E Wallis, 23 November 2010 at 2.
10 Report of W E Wallis, above n 9, at 3.
11 Report of W E Wallis, above n 9, at 3.
12 Application for Review by Graeme Thompson Review No. 198655, 10 May 2011 at 14.
13 At 12 and 15.
[Mr Thompson’s] brain injury was an adverse consequence of cardiac surgery”.14
The second reports received from the other specialists substantially reinforced their earlier opinions.
[21] On 5 August 2011, ACC issued its second decision. It again declined to
accept Mr Thompson’s claim for cover.
[22] Mr Thompson sought a second review. On this occasion, his claim was supported by a detailed report from Dr Finnis, a neurosurgeon. Although aspects of Dr Finnis’ report were cautious and equivocal, he ultimately concluded “Mr Thompson [had] suffered a new neurological deficit as a result of [the cardiac]
surgery”.15 Dr Finnis also said “this [was] not an ordinary consequence of
surgery”.16
[23] The second reviewer also had a third report from Dr Wallis, who criticised aspects of Dr Finnis’ report. Dr Wallis stated the lacunar infarctions detected in Mr Thompson’s brain “are not what one would expect to be caused by surgery”.17
He also said:18
… Although surgery may have aggravated underlying small vessel subcortical vascular disease … there [was] not any evidence that the surgery was a major cause of the cognitive decline although it may have been a contributing factor.
In one part of his third report Dr Wallis appeared to place some reliance on
Dr Titchener’s letter of 4 June 2010.
[24] On 11 July 2012, Mr Thompson’s second application to review ACC’s decision was dismissed.19 The reviewer’s decision concluded Mr Thompson’s cognitive decline was caused by his lacunar infarctions and that these were not
caused by his cardiac surgery but were “unmasked by the surgery”.20
14 Report of R Luke, 19 June 2011 at 2.
15 Report of N D M Finnis, 10 May 2012 at 14.
16 At 14.
17 Report of W E Wallis, 9 June 2012 at 4.
18 At 4.
19 Application for Review by Graeme Thompson Review No. 288584, 11 July 2012.
20 At 11.
[25] Mr Thompson appealed the reviewer’s decision. His appeal was heard by
Judge Beattie in the Wellington District Court on 3 April 2013.
[26] In a 21 paragraph decision delivered on 22 April 2013, Judge Beattie limited his consideration to the medical reports prepared “subsequent to the first review decision”.21
[27] Judge Beattie focused primarily on Dr Wallis’s third report and concluded:22
… [I]t must be the case that [Mr Thompson’s] cognitive impairment was not caused by the treatment he underwent in January 2009 … that Dr Wallis’s report and opinion [were] right on point and therefore there was no right to cover for a treatment injury for [Mr Thompson’s] medical condition.
[28] On 26 March 2015, Judge Henare granted Mr Thompson’s application for leave to appeal Judge Beattie’s decision.23 Judge Henare posed two questions of law:24
[a] Did the District Court make an error of law in its approach to causation?
[b] Did the District Court make an error of law by failing to take relevant evidence into account, and by apparently rejecting the evidence of Mr Finnis without providing reasons for so doing?
Law
Treatment injury
[29] The concept “treatment injury” was introduced into the Accident Compensation Act 2001 (the Accident Compensation Act) by s 30 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005. The amendments made in 2005 were in response to concerns about deficiencies in the way cover was previously provided for medical misadventure under earlier accident compensation legislation. Those deficiencies included the conceptual problem of providing cover for medical misadventure based on medical error. This type of
cover depended on a claimant establishing fault on the part of health care providers.
21 Thompson v Accident Compensation Corporation [2013] NZACC 113 at [5].
22 At [20].
23 Thompson v Accident Compensation Corporation [2015] NZACC 75.
24 At [10].
This was incongruous within the “no fault” accident compensation scheme. The legislative changes were also driven by concerns about the inequality of limiting cover for medical misadventure to medical error or medical mishap, which was based upon the statistical rarity and the severity of the claimant’s personal injury.25
[30] In order to qualify for cover for treatment injury, the claimant must establish he or she has suffered personal injury.26
[31] “Treatment injury” is defined in s 32 of the Accident Compensation Act. The
relevant provisions of s 32 provide:
32 Treatment injury
(1) Treatment injury means personal injury that is—
(a) suffered by a person—
(i) seeking treatment from 1 or more registered health professionals; or
(ii) receiving treatment from, or at the direction of, 1 or more registered health professionals;
…
(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—
(i) the person's underlying health condition at the time of the treatment; and
(ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal
injury:
(a) personal injury that is wholly or substantially caused by a person's underlying health condition:
25 (5 August 2004) 619 NZPD 14695; (3 May 2005) 625 NZPD 20162.
26 Accident Compensation Act 2001, s 26: (1) Personal injury means —
(a) the death of a person; or
(b) physical injuries suffered by a person, including, for example, a strain or a sprain; or
(c) mental injury suffered by a person because of physical injuries suffered by the
person;…
…
(b) personal injury that is solely attributable to a resource allocation decision:
(c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.
(3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
...
[32] “Treatment” is defined in s 33 of the Accident Compensation Act. The relevant parts of s 33 provide:
33 Treatment
(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a) the giving of treatment:
(b) a diagnosis of a person's medical condition:
(c) a decision on the treatment to be provided (including a decision not to provide treatment):
(d) a failure to provide treatment, or to provide treatment in a timely manner:
...
[33] Cover is not available for treatment injury if the appellant’s personal injury
was caused wholly or substantially by disease.27
Causation
[34] The principal issue in establishing cover for treatment injury is whether a
claimant’s personal injury has been caused by treatment.
[35] The onus has always been on ACC claimants to prove on the balance of probabilities they have cover.28 Thus, the onus was on Mr Thompson to prove on the
27 Accident Compensation Act 2001, s 26(2).
28 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR
374 (CA); Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR
340.
balance of probabilities that his cognitive difficulties were caused by his cerebrovascular infarctions and that in turn, these were caused by his cardiac surgery.
[36] Causation has given rise to many challenges in cases in cognate jurisdictions relating to claims arising from medical consultations, diagnoses and treatments.29
These challenges arise from difficulties sometimes encountered in medical litigation with the traditional “but for” test of causation. Those difficulties have led to the adoption of a number of refinements to the law of causation in medical and other personal injury cases. These refinements have included:
(1) holding a defendant liable for making a material contribution to a
plaintiff’s injury;
(2) holding a defendant liable for creating a material risk of a plaintiff ’s
injury;
(3) holding a defendant liable for a plaintiff’s lost chance of a better
medical outcome; and
(4) holding a defendant liable for not obtaining a plaintiff’s informed
consent to undertaking the treatment or surgery in question.
[37] Some of these concepts, and in particular the loss of chance formula, are
difficult to reconcile within New Zealand’s accident compensation regime.
[38] In Accident Compensation Corporation v Ambros, the Court of Appeal examined the requirements of causation in the context of a claim for medical misadventure under the Accident Insurance Act 1998. That statute was a predecessor to the Accident Compensation Act. Although Ambros predated the introduction of cover for treatment injury, the principles set out by the Court of Appeal remain
relevant.
29 Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] 2 WLR 768; Wallace v Kam [2013] HCA 19, [2013] 250 CLR 375; Cojocara v British Columbia Women’s Hospital and Health Centre [2013] 2 RCS 357; Wilsher v Essex Area Health Authority [1988] AC 1074 (HL); Hotson v East Berkshire Area Health Authority [1987] AC 750 (CA and HL).
[39] A court faced with a treatment injury claim that requires a causation analysis would be expected to carefully assess:
(1)Whether the applicant had discharged the legal and evidential burden of establishing his or her personal injury was caused by treatment. While the legal burden remains with the claimant, the evidential burden may shift to ACC where a claimant adduces some evidence of causation.30 Whether the evidential burden shifts at any point during a case involves a careful evaluation by the decision-maker.
(2)Whether causation has been established by all relevant evidence, including valid inferences and evidence relating to proximity. Causation is not necessarily determined on the basis of expert evidence except where the expert evidence establishes there is no connection between the treatment in question and the claimant’s personal injury. This point was explained in the following way by the
Court of Appeal in Accident Compensation Corporation v Ambros:31
… [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 … 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 …
Reasons for decisions
[40] There is no universal rule concerning the extent to which a court should provide reasons for its decision. It is essential, however, that in order to ensure justice is achieved between the parties, Judges hearing ACC appeals must do what they can to ensure the parties can understand why an appeal has either been allowed
or dismissed. The extent to which reasons are required depends on the context.
30 Accident Compensation Corporation v Ambros, above n 28, at [55] and [63].
31 At [67].
Sometimes a few lines will suffice. On other occasions a more extensive explanation is required.32
Analysis
[41] There was substantial disagreement among the evidence of the experts concerning:
(1) the cause of Mr Thompson’s cognitive impairment;
(2) whether Mr Thompson’s condition had been caused by his cardiac
surgery; and
(3) whether Mr Thompson had underlying disease prior to surgery.
[42] This was a case which required Judge Beattie to resolve the conflicts in the evidence in a reasoned way. He was required to consider all of the relevant evidence and then deliver a judgment which explained the reasons for his conclusions.
[43] Judge Beattie did not do this. It is apparent Judge Beattie adopted Dr Wallis’s opinion and did not explain why he favoured that opinion over the expert opinion of other experts, such as Dr Finnis, Dr Brunton, Dr Luke and Dr Newburn.
[44] Ultimately, Judge Beattie may have been right to prefer the evidence of Dr Wallis over evidence which conflicted with his opinion. It is, however, impossible to ascertain from Judge Beattie’s judgment why he reached his conclusions.
[45] Dr Coates, counsel for ACC, properly acknowledged Judge Beattie’s judgment contained little reasoning of the kind one would normally expect. The focus of Dr Coates’ submissions was upon persuading me to examine the evidence for myself and agree in a reasoned way with the conclusions reached by Judge
Beattie.
32 R v Awatere [1982] 1 NZLR 644 (CA) at 648-649; R v Jefferies [1999] 3 NZLR 211 (CA) at
[14]; Gazzard v Accident Compensation Corporation HC Wellington CIV-2005-485-2388, 22
May 2006; Canam Construction (1955) Ltd v Lahatte [2010] 1 NZLR 848 (HC) at [57].
[46] Appeals from the District Court to the High Court under the Accident
Compensation Act can only be brought if leave is granted on a question of law.33
[47] The High Court Rules and ss 74 to 78 of the District Courts Act 1947 apply, with necessary modifications, to appeals from the District Court to the High Court in relation to ACC cases. Under those provisions High Court Judges have a wide range of powers, including the jurisdiction to:
(1) make any decision he or she thinks should have been made by the
District Court; and
(2)direct the District Court to rehear the proceeding and/or consider or determine any matters the High Court Judge directs.
[48] I have given careful consideration as to whether or not I could, on the state of the evidence, reassess the information which was before Judge Beattie and reach my own answers to the questions Judge Beattie was required to answer.
[49] Notwithstanding Dr Coates’ efforts to persuade me to reassess the evidence
and reach the same conclusion as Judge Beattie, I cannot do so in this case.
[50] There are two reasons why I have not been able to accede to Dr Coates’
request.
[51] First, it is very difficult to determine solely from Dr Wallis’s third report the extent to which he placed weight on Dr Titchener’s letter, which had been ruled inadmissible. This issue may be able to be clarified by Dr Wallis providing a written explanation that addresses this issue without him having to be cross-examined.
[52] Second, this is a case that may be amenable to the Court drawing a robust inference in relation to causation. An inference favourable to Mr Thompson may be able to be drawn from all relevant surrounding evidence, including evidence from
Mr Thompson and his wife concerning Mr Thompson’s cognitive abilities prior to
33 Accident Compensation Act 2001, s 162.
his cardiac surgery. It appears Mr Thompson and his wife gave evidence at the first review hearing. That evidence has not been made available to me and, in any event, the evidence of Mr Thompson and his wife concerning his pre-surgical cognitive abilities may have to be reassessed.
Conclusions
[53] Mr Thompson’s application for leave to appeal is granted.
[54] The District Court is to rehear Mr Thompson’s application for review and assess the issue of causation in accordance with the judgment of the Court of Appeal in Ambros and this judgment. The District Court must also provide proper reasons for the conclusions it reaches.
[55] Mr Thompson is entitled to costs on a scale 2B basis.
D B Collins J
Solicitors:
Peter Sara, Dunedin for Appellant
Claro, Wellington for Respondent
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