Marshall v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2016] NZACC 33 ACR 500/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO SECTION 162 OF THE ACT BETWEEN BRETT MARSHALL Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent On the papers at Auckland Decision 19 February 2016 DECISION OF JUDGE G M HARRISON Schmidt & Peart Law for the Applicant Medico Law Limited for the Respondent The application for leave [1] The applicant (Mr Marshall) seeks the leave of this Court to appeal to the High Court pursuant to s 162 of the Accident Compensation Act 2001 (the Act) on the following questions of law:- (i) Was there a failure to provide treatment in terms of $33 of the Act? (ii) If there was a failure to provide treatment does the exclusion set out in $32(3) apply? [2] The application is made in respect of a decision of District Court Judge Ongley of 23 February 2015 in which he dismissed an appeal from a decision of a Reviewer who had upheld the decision of the Corporation to decline cover. Background [3] ' The facts are set out extensively in the Judge's decision and it is necessary only to refer to salient matters. [4] Mr Marshall had a history of ongoing back pain. On 6 September 2011 he underwent L4/5 instrumented fusion and decompression at Waikato Hospital performed by orthopaedic surgeon Mr Richard Somerville. [5] Following the operation Mr Marshall continued to suffer from severe pain stemming from compression of nerve roots. [6] At [31] of his decision the Judge said: The facts upon which this appeal proceeds are essentially as follows: The surgery on 6 September 2011 did not achieve the decompression that was intended; (2) The reasons for failing to achieve the desired decompression are unknown; (3) No failure in the course of the surgical procedure has been shown, neither has it been shown that excessive scar tissue was formed; (4) The symptoms that Mr Marshall experienced from foraminal nerve compression continued and became worse; and (5) Surgery on 4 December 2012 completed the decompression and Mr Marshall's symptoms were alleviated. The legislation [7] In New Zealand a person has cover for a personal injury (s 20) if he or she suffers a personal injury in New Zealand on or after 1 April 2002. Personal injury means physical injury suffered by a person including, for example, a strain or a sprain; and a treatment injury means a personal injury sustained in circumstances outlined by s 32. [8] As relevant, s 32 provides that a treatment injury means personal injury that is suffered by a person who seeks and receives treatment from a registered health professional and is caused by treatment and is not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including the person's underlying health condition at the time of the treatment and the clinical knowledge at the time of the treatment. [9] A crucial part of s 32 is subs (3). It provides; The fact that the treatment did not achieve a desired result does not of itself constitute treatment injury. The evidence [10] The Corporation arranged for Mr Marshall to be assessed firstly by Mr Ferguson who performed the revision surgery on 4 December 2012 which significantly improved Mr Marshall's symptoms, and also Mr Taine, an orthopaedic surgeon. Their advice is considered extensively by the Judge. At [33] he said: In this case, the respondent concedes that there was a failure to treat without evidence of fault, that is to say that the surgical procedure did not effect a proper decompression, even though there is no criticism of the manner in which it was carried out. ... He continued at [34]: For cover, the failure needs to be identified, as does an injury that is caused by the failure. If there is no medical failure in the sense of something done or omitted, then it is likely to be difficult to identify what the treatment failure is and what is a consequence of the failure. If treatment failure can be identified, it is necessary to consider: a) Whether the consequence is a personal injury; (b) Whether the personal injury is not merely a failure to achieve a desired result of treatment; and (c) Whether the personal injury is not wholly or substantially caused by a person's underlying health condition. [11] At [38] and [39] he said; [38] In (sic) find in this appeal that: (a) There is no evidence that failure to treat was incidental to any act or omission in the course of surgery resulting in persisting symptoms from existing or new nerve compression; (b) It follows that there is insufficient evidence that any part of the treatment caused the persisting symptoms; and (c) The persisting symptoms were no more than a failure to achieve he desired result of surgery. [39] I find also that the persisting symptoms were not caused by treatment or by failure to treat. In that respect, the circumstances of this case are different from cases of failure to diagnose, or failure to correctly carry out some part of treatment. There is no specific failure identified and no cause and effect beyond failure to achieve the desired re The questions of law [12] Faced with those findings of fact the appellant raises as a first question of law: Was there a failure to provide treatment in terms of's 33 of the Act? [13] Mr Schmidt, on behalf of the applicant, submitted at para 47 of his submission in support of the application: The applicant asserts that the District Court has set the bar for cover too high in requiring an explanation of how the failure came about and that this is not a requirement for cover for treatment injury. Rather, the phrase "failure to provide treatment" as used in s 33(1)(d) simply requires identification of a failure to provide treatment to the ordinary and expected standard. [14] What this submission comes down to is essentially that the phrase "failure to provide treatment" actually means a failure to treat the condition effectively. [15] That seems to me to be contradictory of the definition of treatment injury which I have already referred to. Section 32 requires firstly that the injury is suffered by a person receiving treatment, and secondly that the injury is caused by the treatment. The requirement for the injury to be caused by the treatment does not introduce an element of fault into the Act which provides cover for personal injury regardless of fault. It is a clear requirement of s 32, however, that the injury must be caused by the treatment. [16] In this case there is no evidence that the continuation of Mr Marshall's pre- existing condition was caused by the treatment. While it might have been hoped for or expected on his part that the fusion operation would also alleviate that condition, it did not do so and there is no evidence of any failure to provide treatment for that condition. [17] The posed question of law, therefore, cannot challenge a finding of fact, "dressed up" as a question of law. Northland Co-operative Dairy Company Limited v Rapana [1999] 1 ERNZ 361, 363 (CA). The factual findings of the Judge were that there was no evidence of any failure to provide treatment. [18] If the question of law posed is to the effect that where a pre-existing condition is not alleviated in the course of receiving treatment, and that amounts to a failure to provide treatment, no question of law "capable of bona fide and serious argument" is raised to qualify for the grant of leave. Impact Manufacturing (Doogue J HC Wellington, AP 266/00, 6 July 2001). [19] In my view the requirement of s 32 that the injury must be caused by the treatment defeats that proposition. [20] It must follow that the exception contained in s 32(3) must apply. The facts are clear in that Mr Marshall suffered from severe back pain before the treatment and continued to do so afterwards. Subsection (3) states clearly that the fact that the treatment did not achieve a desired result does not of itself constitute treatment injury. That is the case here. [21] The desired result was not achieved in the treatment of September 2011, and no cause for that was established meaning that no treatment injury was suffered by Mr Marshall. Conclusion [22] Consequently, I am of the view that the suggested interpretation of "failure to provide treatment" as it appears in s 33 does not raise a question of law which qualifies for referral to the High Court. The second posed question of law therefore does not arise. [23] The application is therefore dismissed. There is no order as to costs. District Court Judge