AR v ACCIDENT COMPENSATION CORPORATION [2023] NZCA 354

AR v ACCIDENT COMPENSATION CORPORATION [2023] NZCA 354 [8 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA86/2023[2023] NZCA 354BETWEEN ARApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentCourt: Gilbert and Mallon JJCounsel: J P Miller for ApplicantJ P Coates and R E Mould for RespondentJudgment:(On the papers)8 August 2023 at 3 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted on the following question oflaw:Whether the High Court misdirected itself on the application of Ambrosby misapplying the relevant factors or overlooking relevant factors inassessing whether the claimant had proved on the balance of probabilitiesthat the delay in treatment caused the claimant personal injury additionalto the injuries he would otherwise have suffered because of hisGuillain-Barré Syndrome.B Costs are reserved until the substantive appeal has been determined.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)[1] The applicant, then aged 15 years, became unwell while on holiday inJanuary 2017. His mother contacted an out-of-hours medical centre helpline forassistance. Due to incorrect medical advice given through that helpline, there wasdelay of seven and a half to eight hours in a diagnosis of, and in hospital treatment for,Guillain-Barré Syndrome (GBS). The applicant remained in intensive care for threemonths on a ventilator. He was then transferred to a specialist unit inBurwood Hospital where he remained until he was discharged in November 2017. Hesuffers severe effects from GBS, including tetraplegia and requires assistance with allactivities of daily living. The prognosis is not certain — the applicant may improvein the next two or three years, although some residual disability may remain.[2] The applicant subsequently sought cover from the respondent (ACC) fortreatment injury due to the delay in treatment. ACC declined the claim on the basisthat the delay did not cause GBS nor increase the severity of its effects. ACC'sdecision was upheld on review and then on appeal to the District Court.1 Leave toappeal to the High Court on a question of law was subsequently granted.2The High Court dismissed the appeal.3 It also declined leave to appeal to this Courton a question of law.4[3] The applicant now applies to this Court for special leave to appeal.5 Specialleave may be granted if the Court is satisfied there is a question of law capable ofbona fide and serious argument in a case involving some interest, public or private, ofsufficient importance to outweigh the cost and delay of a further appeal. Otherrelevant considerations include the desirability of finality of litigation and the overall1 [AR] v Accident Compensation Corporation [2020] NZACC 158 [District Court judgment].2 [AR] v Accident Compensation Corporation [2021] NZACC 140.3 [AR] v Accident Compensation Corporation [2022] NZHC 1008 [High Court judgment].The High Court had earlier declined leave for ACC to adduce further evidence: [AR] vAccident Compensation Corporation [2022] NZHC 542.4 [AR] v Accident Compensation Corporation [2023] NZHC 10 [High Court leave judgment].5 Accident Compensation Act 2001, s 163(2).interests of justice.6 If special leave is granted, the appeal is by way of case stated forthe opinion of this Court on the question of law.7Grounds of appeal[4] As set out in the application for special leave, the applicant contends that theHigh Court was wrong in law because in treatment injury cases involving failure totreat:(a) a generous and unniggardly approach to the drawing of a robustinference of causation should automatically apply where theopportunity to determine the medical outcome was lost by the actionsof the treating medical professionals;(b) the practical experience of specialists operating in the field should begiven increased weight when there is a dearth of medical literature orresearch on the effects of delayed treatment; and(c) the decision maker should discuss all relevant causation factors set outin Accident Compensation Corporation v Ambros to ensure affectedclaimants can understand whether a generous and unniggardlyapproach to the drawing of a robust inference has been taken.8[5] This formulation caused the respondent confusion in the High Court aboutwhether the applicant was arguing for a different causation test in failure to treat casesthan that set out in Ambros.9 The applicant clarified that he was not. The respondentsays that if the applicant is now contending for a different causation test, then thequestion does not arise out of the High Court decision. It also says that if the questionrelates to the proper application of Ambros in failure to treat cases, there is no bona fidequestion of law capable of serious argument as the law is well settled.6 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5], recently affirmed inAccident Compensation Corporation v Anderson & O'Leary Ltd [2023] NZCA 198 at [18].7 Accident Compensation Act, s 163(1).8 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340 at [65]–[70].9 See High Court judgment, above n 3, at [27]–[28].[6] In essence, however, and framed as a question of law, the applicant's concernis that the factors discussed in Ambros as to how a court should assess causation incases of medical uncertainty (because the opportunity to determine the medicaloutcome was lost due to delay and the medical research data does not specificallycover the situation) were either not considered or were approached incorrectly by theHigh Court.10DiscussionEvidence[7] The evidence before the courts below for the purposes of the application forspecial leave can be summarised as follows:(a) Dr Brian Dwyer, an infectious disease specialist instructed by ACC,observed the applicant to have GBS of the more acute kind with rapidonset of symptoms, where a patient may be well in the morning butdead by the evening. The applicant's GBS may have been fatal if hehad not managed to text his mother at 3 am to seek help.(b) Dr Dwyer considered it unlikely that earlier treatment would have keptthe applicant out of intensive care or off a ventilator. Earlier treatment"may have had an influence on duration of disability or resumption ofmobility or degree of independence". However, it was "not possible toconfidently state" that it was "more likely" because "[t]he data is justnot there".(c) Dr Ian St George, a general practitioner instructed by ACC, referred toa medical review and a medical article and considered there was "noevidence that earlier treatment would have improved the outcome".10 See, for example, Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[26];and Harvey v Real Estate Agents Authority [2022] NZCA 498 at [11], citing Brown v R [2015]NZCA 325, (2015) 30 FRNZ 471 at [16].(d) Dr Balraj Singhal, the clinical director of the Adult RehabilitationService at Burwood Hospital who has practised medicine for over23 years and who has a special interest in conditions such as GBS, andwas involved in the treatment of the applicant and prepared theapplication for cover, was of the opinion that "every hour, every day isimportant" for a "better neurological outcome" and "on the balance ofprobability the delay in treatment caused him greater disability".(e) The medical reviews and articles drew a link between the time oftreatment from the onset of symptoms with effectiveness of thetreatment or the length of the hospital stay (the timeframes referred towere seven and five days), but there was no review or literature statingthat a delay of the time that occurred here impacted the severity of thecondition.District Court[8] Judge J H Walker in the District Court reviewed the medical literature referredto by the doctors. The Judge considered the "best medical evidence" on timeliness oftreatment was the Cochrane review.11 This review found that "treatment within sevendays is most effective and that plasma exchange be initiated as early as possible within30 days".12 The Judge noted that the publication Dr Singhal referred to did not indicatethat treatment within the timeframe he suggested "was essential to ensure there wasno injury".13 The Judge further noted that the other publications did "not provide anydefinitive timeframes".14[9] As to the evidence of the doctors, the Judge said that Dr Singhal's evidencewas only that the delay caused "probable injury".15 The Judge did not accept thisevidence because Dr Singhal did not have the experience or expertise of Dr Dwyerregarding the onset of GBS.16 The Judge regarded Dr Dwyer's evidence that earlier11 District Court judgment, above n 1, at [268].12 At [268].13 At [269].14 At [270].15 At [257].16 At [257].treatment would not have kept the applicant out of intensive care or off a ventilator as"compelling".17 The Judge referred to Dr Dwyer having said that "the data is just notthere" and the Judge went on to say that "certainly there has been no medical evidenceor literature, which supports that in all probability" the applicant's condition wouldhave been improved or been shortened if he had been treated a few hours earlier.18[10] The Judge concluded that ACC was correct to decline cover.19High Court[11] In the High Court, Grice J considered there was an evidential basis forJudge Walker to determine that causation was not established on the balance ofprobabilities.20 The Judge considered that Judge Walker was correct to conclude thatthe medical evidence did not support causation to that required standard.21 The Judgealso considered that Judge Walker was entitled to prefer the view of Dr Dwyer andDr St George and to come to the conclusion that legal causation was not established.22The Judge therefore concluded that Judge Walker had not erred on a question of lawand the appeal was accordingly dismissed.23 The Judge was not persuaded there wasa serious question of law capable of bona fide and serious argument such that leave toappeal to this Court should be given.24Special leave?[12] We consider there is a question of law capable of serious and bona fideargument as to whether the District Court approach, upheld in the High Court,misinterpreted the test for causation in Ambros on the evidence before it. In particular,we consider it is arguable that the District Court approach looked for certainty in themedical literature, or relied on the opinions of the two doctors who were looking forcertainty in the medical literature, that the period of delay in treatment that occurred17 At [259].18 At [260].19 At [267] and [271].20 High Court judgment, above n 3, at [102].21 At [103].22 At [103].23 At [104]–[106].24 High Court leave judgment, above n 4, at [56].here was likely to have caused an increase in the severity of the applicant's symptomswhen that is not the test for legal causation.25[13] We consider it is in the interests of justice to grant leave, despite the desirabilityof finality, because of the importance of the issue for the applicant.Result[14] The application for special leave is granted. The question of law forconsideration on appeal is whether the High Court misdirected itself on the applicationof Ambros by misapplying the relevant factors or overlooking relevant factors inassessing whether the claimant had proved on the balance of probabilities that thedelay in treatment caused the claimant personal injury additional to the injuries hewould otherwise have suffered because of his GBS.[15] Costs are reserved until the substantive appeal has been determined.Solicitors:John Miller Law, Wellington for ApplicantClaro Law, Wellington for Respondent25 See Doug Tennent Accident Compensation Law (LexisNexis, Wellington, 2013) discussingcausation in cases of medical uncertainty at 263, 267, 275 and 288; Matthews v AccidentRehabilitation and Compensation Insurance Corporation DC Wellington 62/97, 22 April 1997at 7, discussed in Tennent at 267.