Brider v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 89 /98 IN THE MATTER of an application for leave to appeal under section 97 of The Accident Rehabilitation and Compensation Insurance Act 1992 BETWEEN CHERYLE BRIDER and CASEY HUGHES (Appeal Nos. DCA 231/97 and DCA 281/97) Appellants AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL This is an application on the papers for leave to appeal to the High Court pursuant to section 97 of the Act. The Notice of Appeal submits that the decision of the Learned Judge that the appellants had not suffered medical misadventure, was erroneous in point of law. . N The appellants are the partner and son of Shannon Hughes. Mr Hughes had been infected with HIV as a result of a blood transfusion required from injuries suffered in a motor accident in 1984. Ms Brider became infected through her husband with HIV and their son Casey was similarly infected from birth. The appellants' claims for cover under the Act in respect of medical misadventure have been declined. In his decision the Learned Judge ruled that the provisions of section 5, which is the section of the Act relating to medical misadventure, does not permit of an extension to third parties and that the clear meaning of the section is that claims for medical misadventure are limited to persons who received the medical treatment complained of as the patient. The Learned Judge agreed with counsel for the Corporation's submission that the intention of the 1992 Act was to provide a specific definition as to what constitutes medical misadventure for the purposes of that Act and from its wording it can be said to be specifically directed at the particular person who is the subject of the medical treatment. On the basis that medical misadventure under section 5 did not extend to persons once removed from the treatment, cover was declined. Counsel for the appellants submit that whilst some provisions of section 5 may be interpreted as applying only to persons who received the treatment, that did not mean that the whole scheme of medical misadventure as contained in section 5 was so restricted. It was that argument which was put to the Learned Judge on appeal and which was ultimately rejected. Both counsel have referred to the High Court decision in Estate of N v ARCIC. This was a claim on exactly the same factual scenario but where the 1982 Accident Compensation Act applied. It was the decision of the Court that the definition of "personal injury by accident", which included medical misadventure but which itself had no statutory definition, was not so limited to the person undergoing treatment. At page 10 of their Honours' judgment it is stated: "The deceased was as much the victim of the medical misadventure as his late wife. When there are no words of limitation within the Act excluding him from cover in such circumstances, and when the provisions of the Act must be given a fair, large and liberal interpretation, there is no basis upon which we can adopt the restrictive interpretation sought by the respondent in respect of the particular provision." The respondent was the Corporation in that decision and it sought leave to appeal to the Court of Appeal. In their decision on leave their Honours stated: "What is primarily suggested is that, because the Court in its judgment has expressed certain views in respect of the term "medical error" as it arose for the purposes of the 1982 Act, that would give rise to issues of a general or public importance in respect of the 1992 Act. We reject this approach. On the information before the Court there is no issue of general public importance arising out of the decision from which leave to appeal is sought. It may be that the same issue will arise under the 1992 Act, in which case it may well be of general or public importance, but that is not the position in respect of the judgment under appeal. The judgment under appeal dealt with the position under the 1982 Act in terms of the cases which set out the guidelines for determining whether medical misadventure or medical error arose. Those cases cannot of their very nature apply directly under the 1992 Act when it contains an entirely new and elaborate system of approaching the terms "medical misadventure" and "medical error". Despite the Learned Judge in the present decision ruling that third parties or persons once removed could not be the subject of a medical misadventure claim, the observations of the High Court in the Estate of N decision do indicate that at 4 least such an issue is a matter of general or public importance and it cannot be said that the appellants' argument that third parties can come within the ambit of section 5 is without any basis. I find that an important question of law is raised and is one which is of general or public importance and accordingly leave to appeal to the High Court is granted. DATED at WELLINGTON this S a day of May 1998 M J Beattie District Court Judge Brider.doc KD