AZ v ACCIDENT COMPENSATION CORPORATION [2021] NZHC 1787

AZ v ACCIDENT COMPENSATION CORPORATION [2021] NZHC 1787 [15 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-975[2021] NZHC 1787UNDER The Accident Compensation ActIN THE MATTER Of an Appeal pursuant to s 162 of the ActBETWEEN AZAppellantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 13 July 2021Appearances: P G Schmidt for the AppellantA Butler for the RespondentA H Waalkens QC for the Medical Protection SocietyJudgment: 15 July 2021JUDGMENT OF POWELL J[Applications by Medical Protection Society for leaveto intervene in appeal and to file evidence]This judgment was delivered by me on 15 July 2021 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: A Butler, WellingtonP Schmidt, AucklandA H Waalkens QC, AucklandSolicitors: ACC ( M Mercier – Principal Solicitor)Schmidt & Peart Law, AucklandWotton + Kearney, Auckland[1] The appellant has been granted leave to appeal a decision of Judge A A Sinclairin the District Court at Auckland.1 The appellant had sought cover from the AccidentCompensation Corporation ("the Corporation") for a treatment injury, but this wasdeclined.2 Judge Sinclair in turn dismissed the appellant's appeal against a reviewdecision upholding the Corporation's decision declining cover for a treatment injury.3[2] The appellant's claim for cover arises out of a misdiagnosis when a 20-weekanatomy ultrasound scan failed to pick up that the appellant (then a foetus) had a lemonshaped head and that further anatomy scanning should have taken place. If suchfurther scanning had been undertaken it would have revealed that the appellant wassuffering from spina bifida.4[3] The appellant's mother was granted cover for a treatment injury on the basisthat her continued pregnancy was a personal injury caused by the failure to diagnosethe appellant's spina bifida, it being accepted that the mother would have elected toterminate the pregnancy had the misdiagnosis not occurred.5[4] In dismissing the appeal Judge Sinclair concluded that although the appellantwas, like her mother, receiving treatment from a medical practitioner the injury forwhich she sought cover (spina bifida) was not caused by the treatment she received.6[5] Leave has been granted by consent, on the basis of an agreed statement of facts,on the following question:Can a person born with spina bifida (claimant) obtain cover for treatmentinjury where:(a) the existence of the claimant's spina bifida was not, but should havebeen, detected at the 20-week scan stage;(b) had the spina bifida been detected, the claimant's mother would haveelected termination; and(c) the misdiagnosis meant that the opportunity to elect termination waslost to the claimant's mother?1 AZ v Accident Compensation Corporation [2021] NZACC 45.2 At [10].3 At [46].4 At [3].5 At [9].6 At [43].[6] The appeal is set down for a half-day hearing on 15 September 2021.Application to intervene[7] It is against the background set out above that the Medical Protection Society("MPS") has applied for leave to intervene in the appeal.[8] There is no dispute that the MPS is a not for profit company incorporated inEngland which provides indemnity to its members, including the radiologistresponsible for the misdiagnosis in this case.[9] MPS has sought leave to make written submissions, and oral submissions "ifthe court decides that it would benefit from such submissions at the time of thehearing" and that MPS did "not seek to widen the issues before the court". Particulartopics for submission were identified as being:(a) The "interests of medical practitioners with respect to the riskspresented by the issues to be determined in this matter"; and on(b) "Issues of general principle and policy about the exposure of healthpractitioners to liability in New Zealand".[10] Elaborating on these points, Mr Waalkens for MPS confirmed that the concernof MPS was that if ACC cover was not granted to the appellant it may mean thatmembers of MPS may face claims for civil liability in the future.[11] As MPS would be effectively supporting the appeal the application to interveneis supported by the appellant. In contrast, the Corporation questioned whether MPSwould be likely to provide the Court with "significantly different or useful submissionsto those which will be advanced by the appellant" and submitted it was a reversion tothe role providers had had prior to 2005 when the current treatment injury regime wasintroduced.7 Despite that, the Corporation indicated it would not object as long as7 Up until 1 July 2005, cover under the Accident Compensation Act 2001 for injuries incurredduring treatment was by way of "medical misadventure". This had two categories: medical errorand medical mishap. As medical error incorporated aspects of negligence, a registered healthprofessional could apply to review a decision determining that person had contributed to medicalleave was granted on a limited and defined basis, including restricting the length ofwritten submissions below that otherwise provided for in sch 6 to the High Court Rules2016.[12] MPS objected to the imposition of such conditions but in any event theCorporation has subsequently revisited its position when MPS confirmed that, as wellas seeking to intervene, it wished to adduce evidence on the appeal. Accordingly, thehearing, scheduled to consider the application for leave to intervene, also consideredan oral application for MPS to adduce evidence in the appeal.The application to adduce evidence[13] As Mr Waalkens explained on behalf of MPS at the hearing, MPS wishes tocall evidence on the following matters:(a) evidence on the physical consequences of spina bifida;(b) evidence on the purpose of the 20-week scan, namely that the scan wasnot just provided for the mother but for the appellant as well; and(c) evidence on the purpose of the accident compensation regime and theconsequences to the medical profession if cover is not granted in thiscase.[14] As before, the appellant supported MPS on the application and Mr Schmidt,on behalf of the appellant, indeed went so far as to suggest that additional evidence onthe purpose of termination would also be appropriate. Mr Schmidt also confirmed theappellant did not object to a delay in the hearing of the appeal as long as the appealwas still able to be heard this year.[15] As noted, the Corporation opposed the application. Mr Butler, on behalf of theCorporation, submitted that the application to adduce evidence was not onlyerror and was otherwise entitled to be present at the hearing of a review or appeal. In contrast,under the treatment injury regime such practitioners have no right to seek a review or to be heard.inconsistent with the contents of the application to intervene, but was neither relevantto the issues before the Court nor otherwise necessary.Discussion[16] At the conclusion of the hearing I indicated that after considering thesubmissions made by the parties I would either determine the applications or issuefurther directions, including whether MPS should be given a chance to provideevidence in draft form for further submissions. Having considered the position, Iconclude there is sufficient information before the Court to determine the applicationsand now do so.[17] There is no dispute that there is jurisdiction to allow intervention,notwithstanding the change in the treatment injury regime in 2005 which eliminatedthe need to involve treatment providers where the quality of care provided was calledinto question and the right of such practitioners to participate at review or in an appealin the District Court.8[18] Indeed MPS was given leave to intervene against the wishes of the Corporationin C v Accident Compensation Corporation, in which the Court of Appeal determinedcover was available for a mother who had not been able to get a termination whenspina bifida was not identified following a scan in similar circumstances to the presentappeal.9[19] In that case White J summarized the applicable principles in the followingterms:10(a) the power is broad in nature, but should be exercised with restraint toavoid the risk of expanding issues, elongation of hearings andincreasing the costs of litigation;(b) in an appeal involving issues of general and wide importance, theCourt may grant leave when satisfied that it would be assisted bysubmissions from the intervener; and8 Accident Compensation Act 2001, ss 142 and 155.9 C v Accident Compensation Corporation [2013] NZCA 34.10 At [12]. (footnotes omitted)(c) the power may be exercised more liberally in appeals involving theCourt's special jurisdiction under legislation such as the EmploymentRelations Act 2000 and the Rating Powers Act 1988.[20] In this case I agree with Mr Butler that it is difficult to see how either of thespecific matters identified by MPS set out at [9] above are relevant to the matters atissue set out in the agreed question of law at issue in this appeal. The agreed questionidentifies a discrete separate issue with the answer to which determining whether theappellant is entitled to cover. It does not require either the consideration of theinterests of medical practitioners or their exposure to liability.[21] It is equally difficult to see that any of the matters identified by White J in C vAccident Compensation Corporation are relevant to the present case. Unlike in thatcase, which involved an issue of general principle and importance,11 the present issueis quite specific and while of immeasurable importance to the appellant does not fallinto that category. Similarly, given the high degree of agreement on the facts at issueit is difficult to see there is "relevant expertise in the subject area of the appeal" thatwould be of assistance to the Judge hearing the appeal,12 nor do the considerations ofthe importance of the Court of Appeal's special jurisdiction have any relevance here.13[22] Likewise, and without giving Mr Waalkens the opportunity to prepare draftevidence on the areas identified, I am satisfied that leave should not be granted toadduce the evidence sought. Rule 20.16(3) of the High Court Rules makes it clear thatleave can only be granted if there are special reasons for hearing the evidence. In thiscase the categories of further evidence identified by MPS are not relevant to thematters at issue,14 either because they have no bearing on the question before the Courtor because the subject matter is no longer in dispute.[23] First, the nature of spina bifida is not in issue in the appeal. Not only didJudge Sinclair clearly acknowledge the effect spina bifida has had on both the11 At [14].12 At [15].13 At [16]. In any event the underlying authority relied upon by White J (Wellington City Council vWoolworths New Zealand Ltd [1996] 2 NZLR 436) appeared to turn on whether the Court "maywell be assisted by the [proposed intervener's] submissions on the appeals".14 Evidence Act 2006, s 7(2).appellant and her family,15 but her Honour specifically noted the written statementsprovided by the appellant and her mother "describing the impact of living with spinabifida and the appellants other health conditions and (in the case of [the appellant'smother]) of caring for a child with these conditions".16 Furthermore there is an agreedsummary of the appellant's medical condition provided in the agreed statement of factsaccompanying the notice of appeal.[24] The purpose of the treatment at issue, the 20-week anatomy ultrasound scan,is also not at issue. As Mr Butler confirmed, not only was there clear agreement thatthere had been a misdiagnosis, but it was also agreed that both the appellant and hermother were receiving treatment from a registered health professional when the scanwas obtained and misread.17[25] Finally, the purpose of the accident compensation regime is not at issue in thisappeal, nor are any consequences for the medical profession if cover is not granted,given the outcome of the appeal will turn on the terms of the legislation.[26] For completeness, it is also difficult to see that evidence with regard to thepurpose of termination, the suggestion made by Mr Schmidt, is relevant given theterms of the agreed question of law and given that Mr Schmidt has not sought leave toadduce that evidence in any event.[27] Given the conclusions I have reached it is clear that leave should not be givento MPS to file any further evidence, and that the strongest argument for allowingparticipation of any level by MPS in the appeal is that it is supported by the appellantand not initially opposed to any great extent by the Corporation. That is not enoughto warrant granting the application for intervention in this case given it involves anarea of the law where the legislature had made an explicit decision to limit the needfor treatment providers to participate in order to determine claims for cover.[28] Taking these various matters together I am not satisfied that MPS should begiven leave to intervene and that, on the contrary, to do so will almost certainly risk15 AZ v Accident Compensation Corporation, above n 1, at [8] and [45].16 At [45].17 At [28].expanding the narrow matter at issue and, thereby, lengthen the hearing and otherwiseincrease the costs of the appeal. As a result, the application for leave to intervene isalso dismissed.Decision[29] The applications by MPS to intervene and to adduce further evidence on theappeal are dismissed.[30] Should the Corporation seek costs on the application, a memorandum of nomore than three pages is to be filed and served within two weeks of the date of thisjudgment. MPS will then have two weeks to respond with a memorandum also of nomore than three pages, following which I will determine the issue on the papers.[31] The timetable and hearing dates are confirmed._______________________________Powell J