Xi v Waitemata District Health Board

[2014] NZCA 557

IN THE COURT OF APPEAL OF NEW ZEALAND

CA320/2014
[2014] NZCA 557

BETWEEN	HUA XI First Appellant
AND	NAI ZUO TAO Second Appellant
AND	AN LI TAO Third Appellant
AND	WAITEMATA DISTRICT HEALTH BOARD Respondent

Counsel:

Appellants in person
P White for Respondent

Judgment:

(On the papers)

24 November 2014 at 10 am

JUDGMENT OF HARRISON J
(Application to review Registrar’s decision)

The application to review the Registrar’s decision is dismissed.  Security for costs must be paid on or before 28 November 2014.

____________________________________________________________________

REASONS

1. Hua Xi, Nai Tao and An Tao (collectively the Taos) apply to review the Registrar’s decision delivered on 31 October 2014 declining their application for dispensation of payment of security for costs on this appeal.  The Registrar confirmed security at $5,880 and ordered payment on or before 28 November 2014.  The Waitemata District Health Board, the respondent, opposes the application to review.

2. In summary, Ms Xi, her husband Nai Tao and daughter, An Tao, appeal against orders made by Associate Judge Bell in the High Court at Auckland striking out their claim against the Board and granting the Board summary judgment against each.[1]  The nature of their claim was described by the Associate Judge as follows:

   [2]       The first plaintiff, Hua Xi, is a stroke survivor.  She has ongoing disabilities as a result of her stroke.  The Waitemata District Health Board carried out an assessment and decided that she should receive home care.  Home care was provided by Howick Baptist Healthcare Ltd which carries on business under the name Auckland Home Healthcare. 

   [3]       On 11 April 2013 Mrs Xi suffered a fall at home.  Her daughter, An Li Tao, described the fall in a letter she wrote to both defendants on 21 April 2013.  The person assigned by Howick Baptist Healthcare was with Mrs Xi at the time.  She was meant to be helping Mrs Xi to walk.  Apparently the caregiver’s mind was on other matters and through her inattention Mrs Xi had a fall.  She is said to have suffered external head injuries and bleeding, concussion, and internal brain bleeding.  She required admission to hospital.  She was released after 15 days. 

   [4]       The plaintiffs are not only Hua Xi but also her husband, Nai Zuo Tao, and An Li Tao.  The letter An Li Tao wrote on 21 April 2013 indicates that she and her father were present when her mother had the fall.  They are close by relationship and they were close in time and place.  In this proceeding they seek a written formal apology and $100,000, as damages for emotional trauma and also by way of punitive damages.  They have described their losses as:

   “serious devastating emotional trauma including shock, sorrow, worry and anger etc, which are not covered by ACC as “personal injuries” which all three plaintiffs have suffered.”

   They also say that they have been put to additional expenses in dealing with the injuries and ensuing difficulties in looking after Mrs Xi.  In submissions Ms Tao said that her mother’s quality of life had worsened.

   [5]       The plaintiffs claim against both Howick Baptist Healthcare, which employed the caregiver alleged to be responsible for the fall, and the District Health Board.  The District Health Board says that the plaintiffs do not have a sound claim against it.  It says that that can be decided now and that the claim against it ought not to continue.  That is why it applies for strike out or summary judgment.

   [1]Xi v Howick Baptist Healthcare Ltd [2014] NZHC 1058.

3. The Associate Judge carefully evaluated the factual basis for and relevant legal principles applicable to the Taos’ various claims.  He found that they were unarguable on a number of grounds.  It is unnecessary to rehearse them here except to observe that in their various memoranda filed in this court the Taos have not pointed to any error by the Associate Judge in concluding that, first, Ms Xi’s claim for compensatory damages was excluded by s 317 of the Accident Compensation Act 2001, and that there was no reasonable basis upon which a claim for exemplary damages could be advanced, and second, Mr Tao and Ms Tao could not themselves pursue a claim for damages for nervous shock.  In short, the appeal is meritless. 

4. The Taos’ application must fail for another reason at the threshold level.  The Registrar found that limited details of their financial situation had been supplied in support of the application.  Having reviewed the file, I am not satisfied that the Taos have discharged their onus of showing that they are financially unable to pay security.  They have simply asserted that they are impecunious.  In his memorandum filed on 17 July 2014 in opposition to an earlier application for waiver, Mr White for the Board pointed out that the only material supplied by the Taos in support of the application is a single month’s bank statement.  At least one entry suggests they own either valuable cash or non-cash assets which have not been declared.[2]   

   [2]Before me there was a second monthly statement but the point remains the same: impecuniosity has not been adequately shown.

5. In the circumstances the Taos have failed to establish that the Registrar erred in refusing to dispense with payment of security for costs.  Their application to review her decision is dismissed.  Security for costs must be paid on or before 28 November 2014.

Solicitors:
Legal Services, Waitemata DHB, Auckland for Respondent