Di-Giandomenico v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND (2017] NZACC 46 ACR 302/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 152 OF THE ACT BETWEEN ALESSIO DI-GIANDOMENICO Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 February 2017 Appearances: H de Groot for the Appellant C Hlavac for the Respondent Judgment: 3 May 2017 RESERVED JUDGMENT OF JUDGE NICOLA MATHERS [1] Alessio Di-Giandomenico was born on 3 August 1999. He has cerebral palsy and spastic quadriplegic. He is significantly disabled. [2] After many years and many reports a hearing took place in the District Court before Judge Ongley where cover was declined. [3] On appeal to the High Court the appeal was allowed on the basis that through no fault of Judge Ongley the Court "applied too stringent a legal test with respect to causation associated with resuscitation delays [in this case]". [4] The High Court per Collins J remitted the case back to the District Court "for reconsideration of whether or not Alessio's physical injuries were the consequence of medical misadventure through medical mishap". [5] In so ordering Collins J recognised that further evidence needed to be called as to "the rarity component of the definition of "medical mishap" in s 37". He added that "is a deficiency which will need to be addressed before the case is reconsidered by the District Court". I note there was no mention of any issue arising as to delay in the context of treatment "given properly" in terms of's 37(1)(a) of the Act. [6] At a telephone conference on 23 October 2016 Judge Powell was advised by counsel for ACC to pose a preliminary question as to a prerequisite in s 37(1)(a), as to whether treatment that is given has been "given properly" in light of the delay that apparently occurred in the resuscitation, albeit not negligently. Initially this was opposed by counsel for Alessio but later he agreed. Judge Powell recorded that both counsel "agreed that the discrete issue could be dealt with more quickly, and depending on the outcome could obviate the need for the gathering of further evidence". [7] An order was therefore made posing the question: Can any delay in providing resuscitation to the appellant on 3 August 1999 be treatment "given properly" for the purposes of s 37(1)(a) of the Accident Insurance Act 1998? [8] The matter then came on before me on 17 February 2017. I have received lengthy and careful submissions from both counsel. However, contrary to the agreement of counsel that the so-called discrete question would obviate the necessity of the taking of further evidence and another hearing, Mr de Groot submits that even if I answer the question in the negative the Court would still "need to determine that application of that finding of law to the fact profile (i.e. whether the causation treatment alleged is only properly characterised as a simple delay)". [9] Putting aside that issue, if indeed it is an issue, I have significant misgivings as to whether it is appropriate or indeed possible to answer the question put forward by ACC on the present state of the evidence. I am concerned as to the character of 'delay" in this case. What is the basis of "delay" that I am to accept? A delay in certain circumstances might be for entirely proper reasons in the course of a certain and necessary treatment. [10] Also, Courts have long recognised that so-called shortcuts prove in the end to be just the opposite. Any ruling on the question posed will be subject to appeal and depending on the answer may lead to a substantive hearing and of course any resultant appeal, thus making the whole process longer than getting on with the substantive hearing as anticipated by Collins J. [11] In considering the submissions I have become more and more uncomfortable with considering the question in a vacuum and not as directed by the order of the High Court. Had Judge Powell been aware of counsel's present qualifications and the fact that time is unlikely to be saved, I doubt he would have been persuaded to make the preliminary order that he did. [12] Mr Hlavac, for ACC, submits it is not necessary to resolve what the precise "mishap" is because he says the question is one of principle, "namely whether delayed treatment can be treatment "given properly"". However he then says "the precise treatment will be important in later establishing cover". He then says that "the statutory point is to determine what amounts to treatment and then by consideration of whether the treatment was proper and causative of the injury". [13] Mr Hlavac acknowledges a number of outstanding issues if the claim proceeds and says they can only be resolved in the light of further evidence. [14] Having also considered all the submissions of Mr de Groot and my concerns already articulated, I do not consider it desirable or expeditious to embark on answering the question posed without a full hearing and in accordance with the order of the High Court. No time will be wasted, the submissions will cover part of the issue. I am also concerned I will be led down a path of considering "treatment" and "causation" and "delay" and "properly given" in a narrow and unsatisfactory factual basis. [15] I therefore order that this case be set down as soon as possible for a substantive hearing in terms of the order of Collins J in the High Court. In the first instance however the matter will be set down for a telephone conference with me on 8 May 2017 at 9.30 am so that timetabling orders can be made. Nicola Mathers District Court Judge Solicitors: John Miller Law, Wellington for the Appellant Young Hunter, Christchurch for the Respondent