Accident Compensation Corporation v Adlam

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 401 ACR 569/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN ACCIDENT COMPENSATION CORPORATION Applicant AND JEREMY CAMERON ADLAM Respondent Hearing: On the papers at Auckland Judgment: 18 December 2015 RESERVED JUDGMENT OF JUDGE L G POWELL [1] This is an application for leave to appeal a judgment of Judge MacLean dated 10 August 2015 in which his Honour allowed the respondent's appeal and granted cover for a treatment injury.' [2] Since the application and submissions in support were filed by the Corporation the parties have now reached agreement that the application for leave should be granted. [3] Notwithstanding the consent nature of the application I must nevertheless satisfy myself that a question of law exists before granting leave to appeal. [2015] NZACC 230 Judgment Appealed Against [4] The issue before Judge Maclean was whether Master Adlam's cerebral palsy was a treatment injury pursuant to s 32 of the Accident Compensation Act 2001 ("the Act"), and in particular whether pursuant to s 33(1)(d) of the Act there was "a failure to provide treatment or to provide treatment in a timely manner. [5] In summarising the case for Master Adlam, Judge MacLean noted: [20] As mentioned earlier the essential proposition advanced for the appellant is that if a caesarean section had been performed earlier it is likely that the injuries would have been avoided. [21] It is further submitted that a causative link has been clearly established either: [a] Because there were indications for an earlier caesarean delivery which would have avoided the injuries and thus the injuries were caused by a decision not to provide treatment (s 33(1)(c)); [b] Or that for the purposes of ss 32 and 33(1)(d) of the Act it is immaterial whether or not there were any clinical indications for a pre-emptive elective caesarean and the fact that a surgical intervention would have avoided the injuries is sufficient for the purposes of those provisions Therefore the injuries were caused by failure to treat/provide in a timely manner (s 33(1)(d)) [c] Or that once indications for emergency caesarean presented, an expedited surgical response would have avoided the injuries. Therefore the injuries were caused by failure to provide treatment in a timely manner (s 33(1)(d)). [6] Having reviewed the evidence, Judge Maclean concluded: [53] There is a clear consensus between the experts that there was nothing particularly about any sign as the day developed of a need to urgently embark upon a caesarean, but in hindsight there were things going on that the experts agree could have been precursors if either noticed or looked for. [54] In my view the actions taken once fever became apparent at 1735 hours were appropriate, and it is unrealistic to conclude that those actions could safely have been done any faster or that they were not done in a timely way. [Emphasis added] [7] Despite this Judge MacLean went on to conclude: 61] Regardless of whether there was any fault or deviance from general understood guidelines (which is not asserted) the fact of the matter is that Jeremy's condition was worsening some hours prior to the symptoms of fever becoming apparent at around 1735. [62] The experts substantially agree that earlier intervention objectively, in hindsight might well have prevented the onset of hypoxia and the consequent cerebral palsy. That is simply an objective hindsight finding of fact and in my view on a proper reading of s 33(1)(d) there has been a failure to provide treatment. [8] Judge MacLean accordingly allowed the appeal. Discussion and Analysis [9] Having considered Judge Maclean's decision carefully, I agree with the parties there are clearly arguable questions of law capable of bona fide and serious argument with regard to his Honour's interpretation of s 33(1)(d) of the Act and how it otherwise interfaces with the definition of Treatment Injury contained in s 32 of the Act [10] Given the application is now by consent it is not necessary to go into any great detail but I note in particular that his Honour's suggestion that irrespective of any clinical indication requiring earlier intervention a treatment injury could be determined objectively through hindsight is a radical interpretation of the legislation and is arguably in conflict with s 32(1)(c)(ii). Such an interpretation would also appear to obviate the need for any causal link between the injury and the treatment actually received by a claimant and is also arguably inconsistent with earlier case law with regard to the interpretation of both s 32 and 33 of the Act. Decision [11] The application for leave to appeal is therefore granted. Having agreed that leave should be granted, the only question is the scope of the questions to be referred to the High Court. Having considered the questions proposed by the parties leave is granted on the following questions: Was the District Court correct to hold that the proper test for determining whether a treatment injury has occurred is to consider the treatment from the viewpoint of the omniscient observer? In particular: a) Can a "failure to treat" occur in circumstances where there are no observable indications for a different treatment course? and b ) Does a treatment injury occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result? [12] Costs on the application are reserved pending the final disposal of the appeal. Judge L G Powell District Court Judge Solicitors: Russell McVeagh, Wellington, for applicant John Miller Law, Wellington, for respondent ACR 569-11 Adlam