Barron v Accident Compensation Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY Decision No. 10 /2008 Al 042/06 UNDER The Injury Prevention, Rehabilitation, & Compensation Act 2001 AND IN THE MATTER of an application for leave to appeal to the High Court pursuant to section 162 of the Act BETWEEN ANDREW BARRON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent BY CONSENT HEARD ON THE PAPERS DATE OF THIS RULING 23 January 2008 COUNSEL Mr T McBride for intended appellant Mr D Tui, for ACC DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The Application [1] The appellant seeks leave to appeal against the 28 August 2006 decision (No. 204/06) of Judge Beattie that the appellant does not qualify for cover for an injury to his right eye. The essential issue was whether an infection or disease known as acanthamoebic keratitis, suffered by the respondent at material times, was a treatment injury. The appellant contends that the infection or disease to his right eye was caused by the use of prescription contact lenses. 2] The respondent opposes the application for leave to appeal on the basis that the appellant has not identified any arguable question of law requiring determination by the High Court. 2 [3] Under s. 162 of the 2001 Act, a party dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. [4] It is settled law that the contended point of law must be capable of bone fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law because appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law, and a Judge's treatment of facts can amount to an error of law. [5] Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. Judge Beattie's Decision [6] The question before Judge Beattie was whether the infection/disease met the definition of "treatment injury" in the Act. [7] Judge Beattie accepted that the wearing of the contact lenses at all times was 'treatment", but found that the infection/disease was not caused by that treatment. [8] Judge Beattie noted that the claimant had lodged his claim for cover on 29 July 2005. That was after a significant amendment to the Act had come into force on 1 July 2005 as, from that date, inter alia, s.20(2)(f) of the Act applied to "personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person". The Judge then referred to the definition in the Act of "treatment injury" and of "treatment" (defined in s.33 of the Act) and, over two and a half pages, clearly set out his reasoning; and extracts of that are as follows: "[12] Consequent upon those provisions, in order for a claimant to obtain cover for a treatment injury, it must be shown that the person received treatment from or at the direction of a registered health professional and that the injury was caused by the treatment so received. [13] In the present case, the respondent did receive treatment within the meaning of the Act from a registered health professional at the time that he sought and obtained his prescription contact lenses. The evidence doesn't indicate how far earlier in time from the commencement of the infection that treatment took place, but it certainly seems to have been more than three years earlier, as the first report of Dr Murphy to the Opthalmology Department at Auckland Hospital refers to the fact that the respondent had stored his contact lenses in tap water three times over the last three years. [14] Mr Sowry has submitted that the daily wearing of contact lenses was ongoing treatment for the appellant's eye-sight problems and therefore the definition of treatment extended well beyond the mere prescription of lenses. In contrast, Mr Tui submitted that the treatment was the prescription only, and that there was insufficient proximity between the prescription and then the subsequent daily use of the contact lenses weeks, months or years after that prescription. 3 [15] By reference to s.33(1)(g) I find that the failure of any prescribed equipment, device or tool at any time is to be considered part of the treatment process. It therefore follows that the wearing of contact lenses, as part of the treatment for the appellant's eye-sight problems, does come within (g), but it is the case that it must be the failure of the equipment which causes the injury for cover to apply. [16] Whilst I note that the medical evidence would indicate that the condition known a Acanthamoeba Keratitis is almost solely confined to contact lens wearers, it is equally clear that it is not the failure of the contact lens which is the cause of the condition, but rather it is the amoebic parasite which gets under the lens and is trapped that causes the condition. [17] The amoebic parasite is an intervening force, and whether or not the words of the exclusion in s.33(1)(g) would include a contact lens as being an implant or prosthesis, nevertheless an intervening act which is itself causative thereby excludes the treatment itself from being causative, and such I find is the case of the respondent's circumstances. [18] If the respondent had suffered an injury to his eye as a consequence of the contact lens itself being defective, then such an injury would be covered as coming within s.33(1)(g), but this is not the case with this respondent's circumstances. The contact lens itself was not defective and it did not of itself cause damage to the eye. Rather it was simply doing its normal function, but in so doing the amoebic parasite was trapped inside and it was the parasite which caused the damage to the cornea, not the contact lens itself. [19] I cannot accede to Mr Sowry's submission that the word "failure" in s. 33(1)(g) should be interpreted in a wide sense to include not only a failing of the contact lens to perform its intended therapeutic function, but also of it performing an unanticipated and adverse function, if such causes injury [20] I take it that Mr Sowry is here alluding to the fact that the contact lens, which was the means by which the amoeba came into contact with the cornea, also prevented it from being flushed away. Such an interpretation requires a quantum leap from notions of failure of the equipment itself. [21] The Court has received no evidence which would indicate that a normally functioning contact lens would not trap the parasite. It seems that such is not the case having regard to the medical evidence which indicates that it is a problem associated with contact lens wearers, and therefore it must be regarded as one of the hazards of contact lens wearing rather than it being considered a failure of the contact lens. [22] In all the circumstances, I find that the introduction of the parasite onto the cornea by means of the contact lens, is a situation where the contact lens must be regarded as being entirely passive. The genesis of the causative chain commences with the parasite attaching to the lens when the lens is washed or wiped in water which contains the parasite, and matters then progress from there in the manner the experts state it did on this occasion. [23] Having regard to the statutory provisions within which a claimant must fall in order to obtain cover, I find that on the facts of the respondent's case, the 4 injury which he suffered is not one which can be regarded as being a treatment injury under s.20(2)(f) of the Act. The effective barrier to cover is the intervening event of the introduction of the parasite. It was the cause of injury and no causative link between "treatment" and injury can be established." Discussion [9] In s.33 of the Act there is a definition of "treatment" and the relevant parts of s.33 read: "33. Treatment (1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes - (a) the giving of treatment; ... (g) the failure of any equipment, device, or tool used as part of the treatment process, including the failure of the implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently: ..." [10] Essentially, it is contended for the appellant that Judge Beattie's interpretation of s.33 of the Act was too narrow. It is put that, with regard to his finding that there had been an intervening event, he failed to identify the test for causation, so that it is not possible to ascertain whether the correct test was applied to the facts of this case [11] It is submitted for the appellant that the essence of the District Court decision involved a question of statutory interpretation which must be a question of law as is whether or not the statutory provision has been properly construed or interpreted and applied to the relevant facts. It is further submitted that the provisions of the Act relating to "treatment injury" have not been the subject of consideration by the High Court before, and are new provisions from 1 July 2005, and the issues of the case are capable of bona fide and serious argument. [12] Mr McBride referred to the statement in ACC v Whitaker (314/2003) "it is not for this Court when considering leave to itself make a determination whether the learned Judge was in error in his ruling of law. All that is necessary is for the Court to be satisfied that a question of law arises. It is not required to determine whether or not an error was made. That, of course, is the precise purpose of referring it to the High Court in the context of the appeal sought to be had ..." [13] Mr McBride submits that this Court has misconstrued the meaning of s.33 of the Act as he put it: " . in omitting to give due consideration to the opening words of s.33 of the Act, where the where the word "includes" is used, thereby indicating that the section is not intended to be exclusive, but rather to provide guidance regarding what is covered by "treatment injury" for the purposes and intent of the Act (cf. s.32, which uses the expression "means"); and 5 in failing to consider the possible application of s.33(1)(a) of the Act to the appellant's situation; and in too narrowly construing the word "failure", as it appears in s.33(1)(g) of the Act, contrary to the purpose and intent of the Act (and, in particular, the intent of the new provisions relating to "treatment injury"), and the obligations imposed on the Court by the Interpretation Act 1999; and in omitting to consider whether even if the wearing of a contact lens did not meet the criteria set out in s.33(1)(a), or s.33(1)(g), it could still be considered to be "treatment", in accordance with the interpretation of that term in ARCIC V RW (High Court), Auckland, AP 60-SW99, 4 August 1999, Anderson J). 16. A narrow construction of s.33 would appear to defeat the intention of the provision. The High Court needs to consider if such an interpretation is correct in law. 17. The "failure" of a device such as a contact lens, must be interpreted more widely than simply its failure to carry out the purpose it was intended to carry out. Such an interpretation of "failure" would very rarely result in a personal injury. It is submitted that "failure" in the context of s.33(1)(g) must be interpreted in its wider sense to include both failing to perform its intended therapeutic function, and performing some unanticipated and adverse function, and if such failure causes an injury, then that injury is a treatment injury if the criteria contained in s.32 are met. 18. In relation to the second point of law in the appellant's Application for Leave, it is submitted that the conclusion reached by the Learned Judge that the role of the lens was entirely passive, was one that was not reasonably open to him. The High Court has held that if the conclusions were not reasonably open to the Judge, then the Court can rule that they are unsustainable and therefore should be set aside (Impact Manufacturing Ltd v ARCIS (High Court, Wellington, AP 266/00, 6 July 2001, Doogue J), citing the decision of the Court of Appeal in Lang v Eagle Airways [1996] ERNZ 574, 576). . The Learned Judge did not apply the correct legal test for causation in determining that the role of the appellant's contact lens was entirely passive, and that the amoebic parasite constituted "an intervening force ... which is itself causative" of the appellant's injury (para 17). The District Court, in granting leave, has held "... that the issue of causation is a question of posing first the correct issue of law and then determining the factual issues against the parameters of the prescribed test of causation, whether the statutory or common law ..." (Cochrane v ACC (217/2003), para 8, citing the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Lid [2002] 3 All ER 305, at 339) 20. It was incumbent on the Learned Judge to identify correctly the test he was applying, and explain his conclusions as to how the test was satisfied, or not, as the case me be. (See Gazzard v ACC (312/2005).) In the absence of an explicit reference to the appropriate causation test, it is not possible to conclude that it was properly applied. It is submitted that this 6 did not occur and that therefore the appellant's Application for Leave to Appeal to the High Court should be granted. The Court of Appeal has held that the failure of a Court to provide adequate reasons leads to speculation as to whether or not its conclusion can be justified. That is sufficient to constitute an error law (Lewis v Wilson & Horton Ltd (2003] 3 NZLR 546 (CA))." [14] Mr Tui submits that the above questions raised by Mr McBride are academic because the appellant's claim for cover failed on the fundamental gap in the causal chain between treatment and infection/disease by the Court finding as a fact that there was an intervening event responsible for the infection. Mr Tui also put it that the Court had sufficient evidence before it to make the finding of fact that the infection was caused by the introduction of a parasite with the wiping or washing or the lens in water; and that the appellant failed to present sufficient compelling evidence to show that the lens itself was responsible, in a causative way, for the infection. There is quite some merit in those submissions of Mr Tui. [15] However, although I find Judge Beattie's reasoning lucid and compelling, it seems to me that the contentions for the appellant are capable of bona fide and serious argument and relate to an area of the Act well worthy of consideration by the High Court. [16] Accordingly, the application for leave to appeal to the High Court is hereby granted. Judge P F Barber District Court Judge WELLINGTON Al 042-06.doc(aw)