ACCIDENT COMPENSATION CORPORATION v AZ [2022] NZCA 384

ACCIDENT COMPENSATION CORPORATION v AZ [2022] NZCA 384 [18 August 2022]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THERESPONDENT'S NAME OR IDENTIFYING PARTICULARS REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA736/2021[2022] NZCA 384BETWEEN ACCIDENT COMPENSATIONCORPORATIONAppellantAND AZRespondentCounsel: D A Laurenson QC and A S Butler for AppellantP G Schmidt for RespondentA H Waalkens QC for Medical Protection Society LimitedJudgment:(On the papers)18 August 2022 at 9.30 amJUDGMENT OF COLLINS JA The application by the Medical Protection Society Limited for leave tointervene is granted.B There is no order for costs.____________________________________________________________________REASONSIntroduction[1] The Medical Protection Society Limited (MPS) has applied for leave tointervene in an appeal brought by the Accident Compensation Corporation (ACC),which seeks to challenge a judgment of the High Court in favour of AZ.1[2] MPS is a professional indemnity company which provides legal representationand indemnity for its members. It is the largest indemnifier of medical practitionersin New Zealand.[3] At issue is whether AZ, who was born with spina bifida, can obtain cover underACC for a treatment injury in circumstances where her spina bifida should have beendetected in utero. If the spina bifida had been detected at 20 weeks' gestation,AZ's mother would have elected to terminate the pregnancy.[4] AZ was denied cover by ACC. The District Court dismissed AZ's appeal.2Her appeal to the High Court was allowed.3 As noted at [1], ACC now appeals theHigh Court judgment.[5] MPS unsuccessfully applied to intervene in the High Court,4 but now appliesunder r 48(1) of the Court of Appeal (Civil) Rules 2005 for leave to intervene in thisCourt.[6] Initially ACC opposed MPS being granted leave to intervene, but it now abidesthe decision of this Court. AZ supports the application by MPS.1 AZ v Accident Compensation Corporation [2021] NZHC 2752, [2021] 3 NZLR 791 [Judgmentunder appeal].2 AZ v Accident Compensation Corporation [2021] NZACC 45.3 Judgment under appeal, above n 1.4 AZ v Accident Compensation Corporation [2021] NZHC 1787 [High Court intervener decision].Principles governing intervention[7] In Ngāti Whātua Ōrakei Trust v Attorney-General, this Court summarised therelevant principles concerning applications for leave to intervene:5(a) The power is broad in nature but should be exercised with restraint toavoid the risk of expanding issues, elongation of hearings andincreasing the costs of litigation.(b) In an appeal involving issues of general and wide importance the courtmay grant leave when satisfied that it would be assisted bysubmissions from the intervener.(c) The fact that the case raises issues of principles transcending theparticular facts is not in itself sufficient to extend rights of hearingbeyond the parties.(d) The Court will take into account the relevant expertise or the uniqueposition of an intended intervener as well as the impact of theintervention on appeal.Grounds of application[8] MPS's application can be distilled to the following three key points:(a) The appeal involves questions of law that have implications that extendbeyond the parties and which are in the public interest.(b) MPS and its members may be adversely affected if the appeal isallowed. If AZ is denied cover then the MPS member who failed todetect the spina bifida in utero may be civilly liable to AZ.(c) ACC's appeal will require this Court to revisit its decision inCumberland v Accident Compensation Corporation, in which we helda mother who gave birth to a child with spina bifida had cover underACC because of the failure of health professionals to detect the spinabifida in her unborn baby.65 Ngāti Whātua Ōrakei Trust v Attorney-General [2017] NZCA 183 at [11] (footnotes omitted).6 Cumberland v Accident Compensation Corporation [2013] NZCA 590, [2014] 2 NZLR 373.Analysis[9] In Cumberland, this Court granted MPS leave to intervene. It accepted MPS'ssubmissions that the issues raised by the appeal were complex and engaged the publicinterest.7[10] The issues dealt with in Cumberland are very similar to those raised by ACC'sappeal and this Court may therefore be assisted, as it was in Cumberland, by receivingsubmissions from MPS, which is uniquely placed to be able to access expertiserelevant to the matters raised by the appeal.[11] The fact that an application by MPS as intervener in the High Court wasdeclined by that Court does not determine the application in this Court. I must besatisfied, however, the principles that govern intervention applications in this Courtare satisfied.[12] MPS has demonstrated why its application for leave to intervene should begranted. Those reasons are:(a) The issue raised by the appeal is complex.(b) There is public interest in the determination of the issue.(c) It is unlikely that MPS's involvement will add materially to the lengthof the hearing and the costs of the litigation.(d) There is a strong likelihood this Court will be assisted by submissionsfrom MPS.Result[13] MPS is granted leave to intervene.7 [Cumberland] v Accident Compensation Corporation [2013] NZCA 34 at [14].[14] There is no order for costs.Solicitors:Accident Compensation Corporation, Wellington for AppellantSchmidt and Peart Law, Auckland for RespondentWotton + Kearney, Auckland for Medical Protection Society