CUTTANCE v ATTORNEY-GENERAL [2022] NZHC 1766

THIS JUDGMENT HAS BEEN REDACTED.CUTTANCE v ATTORNEY-GENERAL [2022] NZHC 1766 [21 July 2022]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES ORIDENTIFYING PARTICULARS OF WITNESS, SAVE FOR OCCUPATION,PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011 AS SET OUT AT[98] OF THIS JUDGMENT.IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2022-412-9[2022] NZHC 1766BETWEEN ELIZABETH ANNE CUTTANCEAppellantAND ATTORNEY-GENERALRespondentHearing: 29 June 2022Appearances: M A Stevens QC for AppellantK Laurenson and T Li for RespondentJudgment: 21 July 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 21 July 2022 at 3.45 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] On 28 March 2012, Mr Boyd Cuttance died in hospital suffering a rare form ofchronic fungal meningitis. His condition was not diagnosed until a post-mortem wasconducted. Prior to his admission to hospital on 15 January 2012, he had spent nearlyseven weeks at the Otago Corrections Facility (OCF).[2] His mother, Mrs Elizabeth Cuttance, considers the Department of Corrections(the Department) did not provide her son with proper medical care during his time atOCF. She brought a claim in the District Court, alleging:1(a) the Crown breached Mr Cuttance's rights under ss 8, 9 and 23(5) of theNew Zealand Bill of Rights Act 1990 (NZBORA);(b) the Crown breached its obligations under s 75(2) of the Corrections Act2004; and(c) the Crown breached a duty of care to her, as Mr Cuttance's mother andnext of kin, to ensure that he received a proper level of health care whilein custody.[3] She initially sought relief in the form of declarations and damages. However,the claim for damages was abandoned with Mrs Cuttance accepting it wastime-barred.2 However, she pursued her claim for declarations that the pleaded dutiesand rights had been breached.[4] The District Court found against Mrs Cuttance on all counts. She now appealsthat decision, alleging various errors in the Judge's reasoning. In summary, hergrounds of appeal are:(a) the Judge was wrong to conclude there was no private law remedy fora breach of s 75(2) of the Corrections Act;1 These are summarised from the District Court judgment and list additional breaches of NZBORAto those set out in the first amended statement of claim.2 Limitation Act 2010, s 11.(b) the Judge was wrong to find Mrs Cuttance must show she had suffereda psychiatric disorder before she could obtain a declaration thatMr Cuttance had not been provided with medical care reasonablyequivalent to the standard of care available to the public;(c) the Judge was wrong to adopt a "but for" test to causation rather thanthe "risk based" test used in Wallace v Attorney-General;3 and(d) the Judge made various errors when making his factual findings thatthe medical officer engaged by the Department of Corrections provideda reasonable standard of care.Factual background[5] In late 2011, Mr Cuttance was remanded on bail to his mother's place followingoffending which had its cause in his alcoholism. During his period on remand,Mr Cuttance stopped drinking but began suffering significant debilitating headaches,sweating, loss of appetite and nausea. His mother took him to the Mosgiel HealthCentre on several occasions to seek advice and assistance. He was told to go to theDunedin Hospital Emergency Department (ED) if his condition deteriorated.[6] In late October, he attended the ED on three occasions. The first admissionwas on 22 October 2011 when he was experiencing a headache which covered the topof his head, which was of a severity he described as eight out of 10. A CT scan wasrecommended by an ED consultant and also a lumbar puncture. The CT scan showedno intercranial abnormality so it was decided that the lumbar puncture was notrequired. There was, however, an indication of sinusitis in the sphenoid sinus.[7] Three days later, on 25 October 2011, Mr Cuttance presented to the ED againwith a worse headache, nausea and vomiting. He also described a sore, stiff neck andpressure on the sinuses. He was kept in hospital and put on an intravenous drip tohydrate him. He felt much better the following day and was sent home with pain relief3 Wallace v Attorney-General [2021] NZHC 1963.medication and antibiotics. The referral letter from the Mosgiel Health Centre to theED, dated 25 October 2011, suggests the headaches were likely stress-related.[8] On 30 October 2011, he was again admitted to the ED following vomiting,continuous frontal headaches, tingling in different limbs and intermittent blurring ofvision. He was kept in hospital and hydrated. His condition improved and he wasdischarged with a nose spray and an antibiotic.[9] Mr Cuttance was sentenced to imprisonment on 28 November 2011, and heunderwent a health triage process on arrival at OCF. The risk assessment which wasundertaken recorded his recent history of significant headaches, loss of appetite, boutsof nausea and feelings of hopelessness. The OCF health centre also sought andreceived Mr Cuttance's medical information from the Mosgiel Health Centre and theDunedin hospital. The receiving nurse booked Mr Cuttance to see a doctor thefollowing day.[10] Mr Cuttance had his first consultation with Dr X, one of the medical officerscontracted by the OCF, on 29 November 2011. During their meeting, Mr Cuttanceinformed Dr X of his past and recent medical history, including the onset ofintermittent headaches in the past six weeks. They also discussed his previous alcoholabuse and his recent abstinence, along with his history of anxiety and the fact he hadbeen prescribed anti-depressant and anti-anxiety medications on different occasions.While he outlined his interactions with his GP and the ED, he advised that theheadaches were "heaps better than they were" and that his recent blood tests werenormal.[11] Dr X checked for signs of meningitis (inflammation of the meninges, being themembrane lining the brain and spinal cord) but noted there was no stiffness,photophobia, or vomiting reported. It seemed to Dr X that the headaches werepotentially tension headaches and, more recently, related to his sinusitis which hadresolved. Dr X requested baseline blood tests and prescribed regular Panadol andNurofen for his headaches. Dr X also continued Venlafaxine for Mr Cuttance's anxietyand planned to reduce the Quetiapine, his anti-psychotic medication.[12] On 7 December 2011, Mr Cuttance said he wanted to see a doctor and that hehad not seen a doctor since he came to prison, although he was reminded he had seenthe medical officer eight days before then. On 14 December 2011, Mr Cuttancerequested to see the medical officer, and he was booked to do this on 20 December.On 15 December 2011, Mr Cuttance was seen by a nurse in his unit where he expressedconcerns that his anti-psychotic medication had been stopped and his headaches hadnot settled. The nurse reminded him that a follow-up appointment with the medicalofficer was scheduled. Anti-inflammatory medication was prescribed so thatMr Cuttance could receive it on a regular basis.[13] On 16 December 2011, Mr Cuttance requested to see the health centre manageror clinical team leader. He was seen in a nurse's clinic at 2 pm. He came in clutchinghis head, saying his headaches had not improved. He thought his sinus troubles hadreturned and explained he was having trouble sleeping and was feeling anxious. Itwas noted he had a possible sinus infection and tension headaches. It was suggestedhe keep up his fluids and continue with current medications as he was booked to seethe medical officer in the near future.[14] Two days later, on 18 December, custodial staff asked the health centre to seeMr Cuttance because he was complaining of headaches and dizziness. A nurseexamined Mr Cuttance, checked for signs of meningism, and noted he was to see thedoctor in two days time.[15] The medical officer, Dr X, saw Mr Cuttance again on 20 December 2011. Hetold Dr X that his headaches had been getting worse again. While on some days hemay have no headache, on others it could be excruciatingly painful and constant. Hedenied any further vomiting and said he was keeping well hydrated, although hisappetite was down. He said that at night going to bed was almost like fallingunconscious.[16] Dr X again checked him for any signs of meningism. Dr X noted that hepresented as looking "very well, with a relaxed demeanour", and he did not present asbeing in any pain or distress at the time of the consultation. Dr X conducted a thoroughneurological examination. Dr X noted Mr Cuttance had some tenderness and tensionin the muscles at the back of his neck, but there was no stiffness or rigidity. Dr Xreviewed Mr Cuttance's hospital notes and was concerned about the recurrent natureof his headaches. While Dr X was reassured that the CT scan conducted while heattended the ED had not shown any intercranial abnormality, Dr X requested furtherblood tests to exclude signs of infection or an inflammatory process.[17] Mr Cuttance indicated he had longstanding problems with his neck and thisseemed to Dr X to be an explanation for his neck tenderness. Dr X asked for aphysiotherapist to see Mr Cuttance regarding this. Dr X's plan was if the headachesdid not improve or settle with physiotherapy, and if the blood test did not reveal aproblem, Dr X would refer Mr Cuttance to neurology outpatients. Dr X did not thinka specialist referral was indicated.[18] The blood tests ordered on 20 December 2011 showed no evidence of a raisedwhite cell count that might have suggested an infection. His C-reactive protein test(CRP) came back well within the normal range, suggesting no inflammatory processwas present.[19] On 22 December 2011, a health request was received from Mr Cuttance sayinghis headaches were getting worse. The following day he was taken to the health centreand assessed by a nurse. He complained of a headache extending from the neck toboth sides of the head, but again, showed no signs of meningism. He claimed his lipswere tingling. The nurse said that pain relief should continue as prescribed and bookeda physiotherapy appointment for mid-January.[20] On 24 December 2011, Mr Cuttance approached the nurse saying his headachewas bad and he needed his medications changed. He was told he needed to have amedical review before medications were changed. On Christmas Day, further healthrequest forms came from Mr Cuttance. One explained that his dizzy spells werebecoming more frequent with numbness in his lips.[21] On 27 December 2011, Mr Cuttance approached the nurse on the medicationrun and asked to go to ED, saying his headache was worse. He said he was not ableto eat because of the pain, was not sleeping, and had numb lips. He was told he wouldnot be sent to the ED unless it was a medical emergency, but it was arranged for himto be brought to the health centre. He was seen by a nurse in the health centre whoreported that Mr Cuttance looked well and was relaxed. He expressed concerns to herabout his ongoing issues with headaches and tingling lips and tongue, and he enquiredabout the lumbar puncture he felt should have been done in the ED. There was adiscussion about the possibility of anxiety being the cause of his headaches, and theydiscussed the fact that Venlafaxine had a common side effect of headaches andtransient nausea. An appointment was booked with the medical officer to discuss hismedication.[22] On 28 December 2011, Mr Cuttance asked to take both doses of Panadol atonce, but was told he could not. On 29 December, Mr Cuttance was again complainingof headaches and vomiting overnight and asked to see a nurse or doctor. He refusedto take one of his medications as he had been told that a main side effect of it washeadaches.[23] He was seen by the clinical team leader on 30 December 2011, againcomplaining about ongoing headaches. He asked for a referral for a mental healthassessment. It was explained this needed to be requested through a medical officerand he had an appointment booked to see Dr X.[24] On 30 December 2011, Mr Cuttance took Panadol but reported to a nurse hewas losing his balance. On 29 and 30 December, he declined the Venlafaxine statinghe was not taking it to see if it would help with the headaches. On 1 January 2012, hewas seen by a nurse and he reported feeling better, saying that some of the side effectswere going away but not the headache.[25] On 6 January 2012, Dr X saw Mr Cuttance for a third time. He explained thathe had stopped his anti-anxiety medication, Venlafaxine, and his headaches hadbecome more localised to around the external area of his left ear. He reported thingshad improved to the point where Panadol could take the headache away completelyfor several hours. He mentioned a brief episode of numbness in his forearm, and Dr Xperformed an examination of his arm including power, reflexes and sensation, withnormal findings recorded.[26] During the consultation, Mr Cuttance spoke about his anxiety and his concernthat something might have been missed on the CT scan, although he said he hadrealised it was very unlikely he had a tumour. He said he had been sleeping poorly aswell as feeling anxious and worried.[27] Dr X conducted a full physical examination and a neurological examinationnoting, once again, that there were no signs of meningism and his reflexes andsensations were all normal. Dr X noted that Mr Cuttance said his headaches had beenmore manageable, and his symptoms appeared to be settling. For this reason, Dr X nolonger considered it necessary to refer Mr Cuttance to neurology for assessment.[28] On 10 January 2012, Mr Cuttance was seen in the health centre for blood tests.He said his headaches had returned since he had switched medications. He was toldit was still to early to tell, and he would be reviewed by the medical officer once theblood test results were back.[29] On 15 January 2012, Mr Cuttance presented at the health centre and was notedto be unstable on his feet. He said he had been vomiting overnight and was not well.The nurse noted that he appeared to be hyperventilating, his speech was slurred, andhe was not making much sense. They kept him under observation at the health centreuntil approximately 1 pm. He continued to display confusion and slurred speech, andhe vomited once. Dr Sharma, one of the medical officers, was contacted and, becausethe cause of his confusion could not be ascertained, she said Mr Cuttance should betransferred to Dunedin Public Hospital.[30] Once Mr Cuttance arrived at hospital, he became more unwell with a headache,neck pain and some confusion and hallucination. A clinical examination of himrevealed signs of meningism, but no other abnormalities. A CT scan was done soonafter he was admitted. It, too, did not show any abnormalities. A lumbar puncture wasalso done to take cerebrospinal fluid (CSF) to test whether the patient had meningitis.However, no organisms, whether bacteria, viral or fungal, were grown from the CSF.An MRI brain scan done the following day showed an area of abnormal tissue externalto the brain.[31] Over the next few weeks, Mr Cuttance had repeated CSF examinations, bloodtests, and MRI and CT imaging of the brain to try and identify what was causing thegradual enlargement of the area of abnormal tissue external to the brain. Despite allthese tests, the cause of Mr Cuttance's symptoms was not determined. It seems themeningitis was difficult to treat because its cause could not be established.[32] Mr Cuttance was treated with steroids and antibiotics in hospital. He was alsotreated with anti-tuberculosis and anti-fungal medication. Despite these treatments,Mr Cuttance's health deteriorated, and he passed away on 28 March 2012 due to brainstem dysfunction related to meningitic illness. A post-mortem was conducted whichidentified the cause of death as "invasive Mucormycosis (Zygomycosis) resulting inlocalised Leptomeninigitis over the brain stem and extensive cerebral and cerebellarinfarcts". Dr John Mottershead, the consultant neurologist at Dunedin Public Hospital,explains that mucormycosis/zygomycosis is a type of fungus and is very rare as a causeof brain infection. He says Mr Cuttance is the only case he has ever seen of infectionwith this particular organism, and he has seen only one other case of fungal braininfection. He notes that such infections are rare in "immunocompetent people", butMr Cuttance may have been more susceptible to this infection because he wasdiagnosed with coeliac disease and because of his past alcohol consumption.The District Court judgment[33] Judge Kellar issued a comprehensive judgment, extending more than 50 pages,which addressed the 10 issues which counsel agreed arose from the pleadings. Thesecovered the following legal issues:(a) Did Mrs Cuttance need to identify a breach of duty of care, or a breachof the New Zealand Bill of Rights Act, by an individual Crown servantor agent as opposed to the Department of Corrections as a whole?(b) Was a duty of care owed to Mrs Cuttance?(c) What is the correct test for causation under s 8 of the New Zealand Billof Rights Act?(d) Does s 75 of the Corrections Act 2004 give rise to a private law causeof action for breach of statutory duty?[34] They also covered the following factual issues:(a) If a duty of care was owed to Mrs Cuttance, was it breached?(b) Was there a breach of ss 8, 9 or 23(5) of the New Zealand Bill of RightsAct in respect of Mr Cuttance's treatment in prison?(c) If s 75 of the Corrections Act creates a cause of action for breach ofstatutory duty, was that standard breached?[35] On the question of whether Mrs Cuttance needed to identify a breach of dutyof care by an individual Crown servant or agent, as opposed to the Department ofCorrections as a whole, the Judge held that the Department had no distinct legalpersonality from the Crown and cannot owe a duty of care on its own accord.Mrs Cuttance needed to point to an individual Crown servant or agent who is said toowe a duty. Although Dr X was an independent contractor, it was accepted that theobligation to provide primary health care to prisoners under s 75 of the CorrectionsAct was the responsibility of the Crown, one which could not be delegated, and itremained vicariously liable for acts or omissions performed by those whom itemployed or contracted to fulfil that obligation.4[36] In respect of the question as to whether servants or agents of the Crown owedMrs Cuttance a duty of care, as opposed to Mr Cuttance, the Judge observed that thiswas a novel case and involved an inquiry into whether a duty of care existed. Thisinquiry is undertaken using the approach set out in North Shore City Council vAttorney-General (The Grange).5 This approach examines whether the loss was areasonably foreseeable consequence of the defendant's act or omission, whether itoccurred within a relationship that was sufficiently proximate, and finally, whether4 Cashfield Health Ltd v David and Heather Sinclair Ltd [1995] 1 NZLR 452 at [463].5 North Shore City Council v Attorney-General (The Grange) [2012] NZSC 49; [2012] 3 NZLR 341at [151]-[160].there were any external policy factors that pointed against the imposition of a duty ofcare.[37] The Judge accepted it was reasonably foreseeable that a failure to take care inproviding health care or treatment to a prisoner was likely to cause the prisoner harm.6However, he did not accept that the agents or servants of the Crown who providedmedical treatment to Mr Cuttance as a prisoner also owed a duty to Mrs Cuttance toavoid causing her anger and grief. Policy considerations pointed against that.Furthermore, mere upset, grief or distress would not be compensable. Having regardto the decision in Van Soest v Regional Health Management Unit, he consideredMrs Cuttance would need to show she had suffered a recognisable psychiatric disorderor illness before she could advance a claim in respect of the medical treatmentprovided by the Crown.7 While recognising there were competing policyconsiderations at play, the Judge concluded that, absent evidence of psychiatric illnessresulting from Mr Cuttance's medical treatment, the agents or servants of the Crowndid not owe a duty of care to Mrs Cuttance.8[38] The next issue addressed in the judgment was whether there was a breach ofs 8 of the NZBORA, which provides:No one shall be deprived of life except on such grounds as are established bylaw and are consistent with the principles of fundamental justice.[39] The Judge differentiated between cases where a death resulted following a"careful clinical assessment"9 as opposed to cases where "the law or the actions of thestate impose an increased risk of death".10 He discussed the case of Wallace vAttorney-General,11 where the police shot and killed Mr Wallace after confronting himwielding a baseball bat and a golf club which he had used to damage property. TheHigh Court in Wallace held there was no breach of s 8 as the police deprivedMr Wallace of life in self-defence, and therefore on grounds established by law andconsistent with the principles of fundamental justice. However, Ellis J also said that6 At [26].7 Van Soest v Regional Health Management Unit [2000] 1 NZLR 179 (CA).8 At [36].9 At [38].10 Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556 at [164].11 Wallace v Attorney-General, above n 3.where this duty is at issue, causation is established through a risk-based approachrather than causation in a tortious sense.12[40] The Judge recorded that Mrs Cuttance alleged her son's treatment, particularlythe failure to refer her son to a specialist, increased the risk to his life, and this shouldbe sufficient to establish a breach of s 8. However, as in Wallace, the Judge held thatthe onus rested on the plaintiff to show that the agents or servants of the Crown wereresponsible for depriving Mr Cuttance of life. The onus only shifted if that wasproved, but the defendant raised some justification for doing so. He therefore acceptedthe Department's submission that the but-for test was the appropriate test in this case.He said there was a distinction to be drawn between situations where the State plansthe use of force (as in Wallace) and situations where (as here) the State is administeringmedical care and treatment to alleviate suffering.13[41] The Judge considered the claims under ss 9 and 23(5) of the NZBORAtogether. Those sections provide:9 Right not to be subject to torture or cruel treatmentEveryone has the right not to be subjected to torture or to cruel,degrading, or disproportionately severe treatment or punishment.23 Rights of persons arrested or detained(5) Everyone deprived of liberty shall be treated with humanityand with respect for the inherent dignity of the person.[42] After considering the evidence, the Judge found it did not reach the thresholdrequired to establish a breach of ss 8, 9 or 23(5) of NZBORA. Section 9 requiredtreatment which "New Zealanders would regard as so out of proportion to theparticular circumstances as to cause shock and revulsion".14 Section 23(5) prescribesagainst conduct which is "unacceptable in our society" and "which lacks humanity,but falls short of being cruel".15 The Judge held there was nothing to suggest therewas an egregious and significant failure to take steps to avoid risk to Mr Cuttance's12 At [542].13 At [40]–[41].14 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [172].15 At [170] and [177].life, nor was his medical care so inferior as to amount to cruel treatment.16 Althoughthe Judge noted "there may have been an occasion when a nurse made a regrettablecomment to Boyd that he subsequently reported to his mother",17 he held that thecomment (which was to the effect of telling Mr Cuttance to "harden up") did notamount to a breach of ss 8, 9 or 23(5) of NZBORA.[43] The Judge then considered whether s 75 of the Corrections Act 2004 gave riseto a private law cause of action for breach of statutory duty. That section provides:Medical treatment and standard of health care(1) A prisoner is entitled to receive medical treatment that is reasonablynecessary.(2) The standard of health care that is available to prisoners in a prisonmust be reasonably equivalent to the standard of health care availableto the public.[44] After considering the leading case of Harriman v Attorney-General, the Judgeheld that Parliament did not intend a civil right of action should be available for breachof this section of the Corrections Act.18 He noted that the Act provided a system forcomplaints, investigations and inspections, a fact which pointed against there being astatutory duty. Furthermore, even if he was wrong, then Mrs Cuttance faced the morefundamental hurdle to show that the duty was owed to her. The Judge held that if therewas a private law remedy for breach of s 75 of the Corrections Act, then the statutoryduty is owed to the prisoner and not to Mrs Cuttance.19[45] The Judge then carefully traversed the evidence as to the medical treatmentreceived by Mr Cuttance during his time in OCF. That evidence came from severalsources. The primary evidence came from Ms Jillian Thompson, the Regional ClinicalDirector for the Department, who recounted Mr Cuttance's health treatment at OCF,including all the interactions Mr Cuttance had with custodial staff members and nursesfrom the health centre, through to his transfer to Dunedin hospital on 15 January 2012.16 At [176].17 At [173].18 Harriman v Attorney-General [2015] NZHC 3192.19 At [60].The Judge then outlined, in detail, Dr X's evidence as to the three consultations hadwith Mr Cuttance as set out in [10]–[11], [15]–[18] and [25]–[27] above.[46] The Judge went on to discuss the evidence of Dr Mottershead, the consultantneurologist who saw Mr Cuttance during his stay in Dunedin hospital. He notedDr Mottershead's opinion that, had the cause of the meningitis been identified earlier,they could have treated it earlier with anti-fungal medication. While this might haveimproved the outcome, Dr Mottershead said treatment of such infections is not alwayssuccessful, as fungus is difficult to treat in the central nervous system even whenidentified. The Judge also noted Dr Mottershead's opinion that he could not say whatwould have happened if Mr Cuttance had come to hospital at an earlier stage. Inparticular, he said this was an unusual case, and the improvements in the CRP testfrom its initially raised level would have been "falsely reassuring".20 The Judgerecorded Dr Mottershead's view that it was difficult to know at what point meningismwould have been clinically detectable, but he suspected it was present at least duringthe week prior to admission.21[47] The Judge also summarised the expert evidence given by Dr Lewis forMrs Cuttance. Dr Lewis reviewed all the records of Mr Cuttance's treatment, bothbefore, during, and after he was incarcerated. She considered there were significantsymptoms of progressive deterioration and said it would be good medical practice toask for help to understand symptoms which are persistent and progressive, and forwhich the doctors did not have an answer. She expressed the view that if Mr Cuttancehad been prescribed and administered anti-fungal medication in December 2011, hewould probably have survived. Of relevance to this appeal, Dr Lewis stated inevidence that she could not see that Dr X had looked at the entire records of the nursesat the health centre (known as the MedTech file), and she considered that Dr X wasnot therefore aware of the number of times Mr Cuttance had complained of headacheand of other sensory changes, including numbness, tingling, dizziness andunsteadiness.20 At [131].21 At [132].[48] Dr Lewis did accept that Mr Cuttance was "presenting better to Dr X than hepresented to the Emergency Department".22 However, she considered that, given therecord of various symptoms, referral to a specialist could have been made by20 December 2011. While Dr Lewis agreed with Dr Mottershead that one could notsay at which point in time treatment would have resulted in a different outcome, heropinion was the earlier treatment could have been instituted, the more likely it wouldhave resulted in a better outcome.23[49] Finally, the Judge discussed Dr Lewis's explanation of the difference betweenbest practice and a reasonable standard of care, saying:24She stated that best practice 'is a standard where absolutely people would saythat was fantastic, you really did all the right things and reasonable would beokay you were doing all the things according to what you thought but youmay not have thought of every possibility'.[50] The Judge then discussed Dr Turnbull's evidence, being the medical expertcalled by the respondent. She considered there was a lost opportunity to make thediagnosis of atypical meningitis when the attending doctor at ED decided a lumbarpuncture was not needed. She was of the view that the symptoms and signs of fungalmeningitis are usually non-specific and intermittent, and it was not until14-15 January 2012 that Mr Cuttance's symptoms became acute and he was properlytransferred to Dunedin Hospital. In her view, the standard of care provided toMr Cuttance in prison was equivalent to that which would be available throughprimary care in the community. While she considered the decision not to seek a secondopinion after Dr X saw Mr Cuttance on 6 January was a "departure from best practice",it was not so significant to be a departure from a reasonable standard of care. TheJudge also noted that, in cross-examination, Dr Turnbull said she would expect thenursing notes to be considered when a doctor was consulting with anyone as they"form part of a continuing record".[51] Having set out the evidence as to the treatment Mr Cuttance received fromwhen he first consulted his own medical practitioner in October 2011, through to the22 At [142].23 At [152].24 At [153].two months he spent in hospital after being imprisoned, the Judge then turned towhether there was a breach of the requirement to afford him a reasonable standard ofcare. He noted that "although best practice might have been for Dr X to have read thenursing notes on each occasion when Dr X examined Boyd and to have him referredto a specialist following her 6 January 2012 examination, those were matters ofjudgment on which opinions may vary".25 He reached the view that those matterswere not a breach of a reasonable standard of care.[52] The Judge recorded that, despite the various medical interventions Mr Cuttancehad over the period from October until March, the cause of his illness was notoriouslydifficult to detect, and it was not until the post-mortem was conducted that the truecause of his death was ultimately detected. The Judge was also not prepared to holdthat the failure by the ED doctors to do a lumbar puncture was an opportunity lost,noting that those who made the decision had not been able to address it. The Judgewas not prepared to find the fact that Mr Cuttance did not recall seeing a doctor whenhe had, was a warning sign. He accepted Dr X's evidence that it is not uncommon forthe men to not appreciate or recognise they have already seen a doctor, and, in anyevent, he did not show any signs of memory loss when he spoke to Dr X.[53] In terms of Dr X not seeking a second opinion after the 6 January consultation,he was not prepared to find this was a departure from a reasonable standard of care,saying the decision to transfer Mr Cuttance to hospital or to seek a specialist opinionis a matter of judgment on which there is room for legitimate differences of opinion.He accepted Dr Mottershead's view that the nursing staff and Dr X followedreasonable procedures, emphasising that it was difficult to know when meningismwould have been clinically detectable. In all the circumstances, he concluded thatMrs Cuttance had not proved that the servants or the agents of the Crown had breacheda duty of care to her, even if they owed her a duty of care, nor had she established thatthe servants or agents of the Crown breached s 75 of the Corrections Act.[54] The Judge also considered that Mrs Cuttance had not established that, but forthe decision not to make an earlier referral to the hospital or to a specialist, the cause25 At [160].of Mr Cuttance's death would have been diagnosed and his life saved. As such,causation was not proved. There was also nothing to suggest that there was anegregious and significant failure to take steps to avoid the risk to Mr Cuttance's life ina way that breached the relevant sections of NZBORA. Accordingly, the Judgedeclined to make any of the declarations which Mrs Cuttance sought.The grounds of appeal[55] As already noted, Mrs Cuttance challenges legal and factual aspects of theJudge's decision on several grounds. It seems to me the most logical order in whichto address the grounds are:(a) The challenge to the Judge's finding that Parliament did not intend tocreate a private law remedy for breach of s 75 of the Corrections Act,because the Act contains a complaints system.(b) The challenge to the Judge's finding that, for Mrs Cuttance to succeed,she must show that the Corrections medical staff and contractors onlyowed a duty to her, as a secondary victim, if she had suffered arecognisable psychiatric disorder or illness.(c) The challenge to the Judge's finding that the test for causation was the"but for" test rather than the "risk-based" test used in Wallace vAttorney-General.26(d) The challenges to the Judge's findings that Dr X provided a reasonablestandard of care, when:(i) Dr X failed to look at the nursing notes, which all the medicalexperts agreed should have been looked at because they provideuseful information;26 Wallace v Attorney-General, above n 3.(ii) Dr X failed to appreciate there could be something seriously thematter, despite Mr Cuttance having ongoing symptoms and nothaving had a wide range of medical investigations nor aspecialist's opinion;(iii) Dr X failed to maintain an open-minded attitude of uncertaintyin the face of persistent and progressive symptoms;(iv) Dr X failed to seek a second opinion on 6 January 2012 whenthat was a departure from best practice, observing that areasonable standard of care is best practice.[56] It is clear from these grounds, and confirmed through discussion with counselat hearing, the Judge's findings that there were no breaches of the relevant sections ofNZBORA are not challenged. The grounds of appeal are primarily focused on whetherthere is a duty of care under s 75 of the Corrections Act to provide "medical carereasonably equivalent to the standard of care available to the public", which can bethe subject of an application for a declaration by Mrs Cuttance. Accordingly, I confinemy findings to that issue.Did the Judge err when he found that Parliament did not intend to create aprivate law remedy for breach of the Corrections Act?The appellant's submissions[57] In arguing that an enforceable statutory duty is intended by s 75, Mrs Stevensreferred to Harriman v Attorney-General,27 where Simon France J, citing Wool BoardDisestablishment Co Ltd v Saxmere Co Ltd, said that a Court will not lightly implysuch a right and to do so:28 the reviewing Judge must be driven to the view that something isnecessary to achieve the purpose of the statute and, therefore,objectively within the intention of the legislature, yet not provided for.27 Harriman v Attorney-General, above n 18, at [21].28 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2011] 2 NZLR 442 at [188].[58] Mrs Stevens also acknowledged that the Courts have found there is no capacityto sue for breach of a statutory duty in relation to sections of the Corrections Act whichinvolved prison control.29 This is because the Corrections Act has a public safetypurpose which tells against it intending to create a private law cause of action, andthere are other remedies available to a prisoner, including through the prisoncomplaints system.[59] Mrs Stevens argues that in contrast, health care is not a prisoner managementmatter, and the entitlement to receive health care that is reasonably equivalent to thestandard of health care available to the public invites external review to achieve thepurpose of the statute. In oral submissions, Mrs Stevens rejected the suggestion thatthe fact Mr Cuttance had recourse to the Health and Disability Commissioner, andthere was oversight, in this case, by the Coroner, was sufficient to ensure theDepartment provided the requisite standard of health care to Mr Cuttance. In her view,there have been repeated failures by the Department to provide appropriate healthcare,and this pointed in favour of an enforceable statutory duty being recognised.Discussion[60] Before there can be an entitlement to a declaration that the Department hasbreached s 75, it must be established that s 75 creates a duty which is enforceable bya private law action. As the House of Lords has said:30 [A] private law cause of action will arise if it can be shown, as a matter ofconstruction of the statute, that the statutory duty was imposed for theprotection of a limited class of the public and that Parliament intended toconfer on members of that class a private right of action for breach of the duty.[61] While in Harriman v Attorney- General, Simon France J found that the publicsafety aspect of the Corrections Act told against the idea that it intended to create aprivate law cause of action, I accept that claim arose in a different context whichinvolved the management of prisoners within the prison system. That said, there needsto be a basis on which it can be suggested that the Corrections Act intends to create anenforceable duty under s 75 in addition to any existing remedies available in law. In29 Harriman v Attorney-General, above n 18; Genge v Visiting Justice at Christchurch Men's Prison[2017] NZHC 35 at [49].30 X (Minors) v Bedfordshire County Council, [1995] 2 AC 633 (HL).my view, that is the primary impediment to Mrs Cuttance's claim. The CorrectionsAct creates an expectation that prisoners will not be disadvantaged in terms of medicaltreatment when compared with ordinary members of the public. However, there isnothing to suggest that prisoners should be advantaged in that regard.[62] Under the Accident Compensation Act 2001, and its predecessors, members ofthe general public are constrained in their ability to sue for personal injury except forexemplary damages.31 Instead, the Accident Compensation Corporation (ACC)provides statutory cover for such injuries. ACC also covers treatment injuries, whichare injuries that arise as a result of medical treatment.32 Treatment is defined in thelegislation to include "a failure to provide treatment, or to provide treatment in a timelymanner",33 thus curtailing the ability to sue medical providers for negligence.[63] However, medical practitioners can be the subject of a complaint to the Healthand Disability Commissioner if there has been a breach of the Code of Health andDisability Services Consumers' Rights. The Code is a regulation under the Health andDisability Commissioner Act. It includes the right to receive services of an appropriatestandard.34 The right to make a complaint to the Health and Disability Commissioneris extended to family and other support people of the person who has received thehealth or disability service. In cases which raise serious concerns a formalinvestigation can be conducted, or the matter can be referred to the Health PractitionersDisciplinary Tribunal which has the power to impose a penalty in the form of a fine orcompensation if a medical practitioner has been found guilty of medical malpractice.[64] In my view, the fact a prisoner (or a prisoner's family member such asMrs Cuttance) can avail themselves of the complaints process under the Health andDisability Commissioner Act, points strongly against there being an additional andenforceable statutory duty under the Corrections Act to provide health care to areasonable standard. I consider, therefore, s 75 of the Act is simply declaratory of thefact that a prisoner has no less entitlement to a reasonable standard of health care than31 Auckland City Council v Blundell [1986] 1 NZLR 732.32 Accident Compensation Act 2001, s 32.33 Section 33.34 Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights)Regulations 1996, right 4.any other member of the public. The corollary of that is that he or she has availableto them the same access to the complaints services provided by the Health andDisability Commissioner, and for treatment injury cover under the ACC regime.[65] Consequently, I do not consider the Judge erred when he held that s 75 of theCorrections Act did not create a statutory duty enforceable by private action. As aconsequence of that finding, the remaining grounds of appeal are moot. However, forcompleteness, I go on to address them in any event.Did the Crown owe a duty of care to Mrs Cuttance?Submissions for the appellant[66] Mrs Cuttance asserts the Judge erred in finding that she must show thatCorrections medical staff and contractors owed a duty of care to her and that also thatbreach of that duty must have caused her to suffer a recognisable psychiatric disorderor illness before she could sue. Mrs Stevens says this case should be distinguishedfrom those where the plaintiffs are claiming damages for injury resulting fromnegligence, saying the need to prove a recognisable psychiatric disorder has beensuffered is not applicable where a declaration is sought for breach of the obligationunder s 75.Discussion[67] It is clear, had Mrs Cuttance sought damages for the mental distress she hassuffered from alleged breach of duty to provide her son with a reasonable standard ofcare, she could not succeed. In Van Soest v Residual Health Management Unit, theCourt of Appeal concluded that New Zealand should not depart from the establishedposition in England and related jurisdictions, saying:35 a claim by a secondary victim for mental suffering caused by awareness ofdeath or injury to a primary victim through the negligence of the defendantwill not lie unless the effect on the mind of the second victim has manifesteditself in a recognisable psychiatric disorder or illness.35 Van Soest v Residual Health Management Unit, above n 7, at [65].[68] That then leaves Mrs Cuttance's argument that a different test should applybecause she is only seeking a declaration. The respondent argues that before anyremedy can be considered, including a declaration, a relevant cause of action needs tobe made out. In that regard, the respondent cites Birkenfeld v Kendall,36 where theCourt refused to reverse a stay of proceedings where Ms Birkenfeld, a US citizen, hadbeen injured by a New Zealand citizen while windsurfing overseas, and where theamount of damages payable, which was limited by virtue of the Maritime TransportAct 1994, had been tendered to the plaintiff. She sought to pursue the defendantsimply to obtain a declaration that he was negligent.[69] In that case, for policy reasons, the Court held that "costs of trial of proceedingsfor declaration should not be imposed on a defendant who has succeeded in alimitation application and tendered the amount of the limitation fund".37 In thecircumstances of the case, the Court held it was "neither necessary nor desirable forthe judiciary by exercise of discretion under the Declaratory Judgments Act to imposea parallel system of investigation by lay judges which is not required for the purposeof compensation for injury".38 The judgment does not, in my view, go so far as topreclude a declaration being sought without a live underlying claim.[70] Accordingly, I do not consider the position is as straightforward as suggestedby the respondent. Furthermore, the Declaratory Judgments Act 1908 states:2 Declaratory judgmentsNo action or proceeding in the High Court shall be open to objectionon the ground that a merely declaratory judgment or order is soughtthereby, and the said Court may make binding declarations of right,whether any consequential relief is or could be claimed or not.[71] While Mrs Stevens did not rely on this Act, it suggests, at least in principle,that Mrs Cuttance could have standing to seek a declaration, even if she could notclaim other relief. There are, however, policy reasons for not encouraging suchapplications in the context of medical services, particularly given the existence of aspecialist body, the Health and Disability Commissioner which has capacity to36 Birkenfeld v Kendall [2008] NZCA 531, [2009] 1 NZLR 499.37 At [52].38 At [55].undertake such enquiries and make findings, and, in the case of a death, for theCoroner to do so. In my view, those factors point strongly against allowingMrs Cuttance to proceed in these proceedings to seek declaratory relief.[72] However, the point becomes moot in any event given my conclusions set outbelow on whether Mr Cuttance's treatment fell below a reasonable level of care.Did the Judge err in adopting the "but for" test to causation rather than the"risk-based" test in Wallace v Attorney-General?Submissions for the appellant[73] Mrs Stevens argued that the District Court Judge erred when he concluded thatthe test for causation should be the "but for" test rather than the "risk-based" test usedin Wallace v Attorney-General, saying State actors have a duty to plan and controldangerous situations in a way that minimise a risk to life. Because the administrationof medical care and treatment to Mr Cuttance under s 75 was intended to reduce therisk to his life, and this was reinforced by s 8 of the NZBORA which enshrines theright not to be deprived of life, the Department of Corrections had to take all stepswithin its power to reasonably avoid that risk and it did not do so. BecauseMrs Stevens considers the claim is looking at the State's role in the care ofMr Cuttance, which is not simply to relieve suffering, but to avoid risk to life,Mrs Cuttance need not show the alleged negligence was the cause of the death, butsimply that the Department failed to do all in its power to avoid risk to Mr Cuttance'slife.Dicussion[74] Before discussing this issue, it is necessary to consider what was decided inWallace. The case involved the police shooting of Mr Wallace after he struck shopwindows, and then the windscreen of the police patrol car, when armed with golf clubsand a baseball bat. Mr Wallace's mother brought a claim against the Crown, allegingMr Wallace's right to life had been breached. In the High Court, Ellis J said that s 8encompassed "an obligation on the State to plan and control potentially life threateningoperations reasonably" and, in the circumstances of that case, it meant the inquiry waswhether "any of the impugned operational acts or omissions involved an egregiousand significant failure to do something that the officers could, in the circumstances,reasonably have been expected to do to avoid the risk to [Mr Wallace's] life".39 Asthat threshold was not reached, the claim failed.[75] The Judge in this case noted that the risk-based test in Wallace for a breach ofNZBORA required "an egregious and significant failure"40 to take steps to avoid a riskto life. He held that none of the acts or omissions by Corrections staff or Dr X couldbe seen as egregious or significant failures to take measures to avoid the risk to life.That specific finding as to whether there had been a breach of the NZBORA is notchallenged, although the findings as to whether the standard of care was reasonable,are challenged. In my view, Wallace is clearly a decision regarding what is requiredby the State to comply with s 8 NZBORA. It has no application to a claim for breachof statutory duty under s 75 Corrections Act, even if such a claim was available, or fora tortious claim in negligence.[76] The "but for" test for causation is well established in tort claims. It askswhether the plaintiff would have suffered the loss without the defendant's wrongdoing.If the loss would have arisen even without the defendant's wrongdoing, it normallydoes not give rise to legal liability.41 I accept though, that this is not an absolute rule,and there will be cases where for policy reasons, the creation of a risk of harm may besufficient.42[77] For example, in Fairchild v Glenhaven Funeral Services Ltd, the plaintiffsdeveloped mesothelioma after being exposed to asbestos dust in the course of theiremployment with more than one employer.43 The medical evidence established thatthis condition was caused by inhaling asbestos dust and the risk increased accordingto the amount of dust inhaled, but there were practical difficulties in demonstratingwhen the victim might have inhaled the fibres which caused their death. In the Houseof Lords, the claimants were held to be able to recover in full against any of theemployers as otherwise an injustice would be raised to the victim.39 At [550]–[551].40 At [176].41 Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883 at[72].42 Wilshire v Essex Area Health Authority [1988] AC 1074 (HL) at 1084.43 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32.[78] However, here, the claim is against the Crown, claiming deficiencies in thecare provided by its contractor, Dr X. The issues that pointed against the use of a "butfor" test in Fairchild are not present here. Indeed, if ACC legislation did not exist,and the claim was able to be brought against the doctor directly, there is no doubt thatthe "but for" test would apply, and there is no reason to apply a different standard ifthe claim is for breach of statutory duty. Accordingly, I am satisfied that the "but for"test to causation applies, and the Judge was correct to apply it.Did the Judge err in finding Dr X provided a reasonable level of care?[79] The appeal took issue with a number of factual findings of the Judge. It isappropriate to deal with these together as they are interrelated.Failure to have regard to the nursing notes[80] Mrs Stevens submits that three witnesses with medical expertise, beingNurse Thompson (the Regional Clinical Director for the Department of Corrections),Dr Turnbull and Dr Lewis, all expected that a doctor providing reasonable care wouldlook at the history of the patient using nursing notes because they provide usefulinformation for a doctor. The evidence was that Dr X did not recall looking at nursingnotes and said it was not Dr X's regular practice to do so. Mrs Stevens submits thisfailure was a direct cause of Mr Cuttance not being referred to specialist care at a timewhen his life could potentially be saved.[81] In looking at whether this allegation constituted a departure from a reasonablestandard of care, I start first with Dr X's own evidence. It was put to Dr X that it was"highly likely you did not read the MedTech notes", but Dr X's answer was, "I don'tthink that we can say one way or another, because I can't recall". Further on, whenagain it was put to Dr X that Dr X did not go through the notes to see what the historywas, Dr X's answer was "I wouldn't necessarily do that. I would often take the historyfrom the patient. There is no reason not to". It is important to note that there was nofinding by the Judge that Dr X did not refer to the notes, but simply an observationthat Dr X could not recall if they did.[82] More importantly though, the medical experts agreed the importance ofreviewing the notes was to be aware of the patient's history of symptoms. In thatregard, I am satisfied that Dr X, whether Dr X saw the notes or not, took considerablecare to elicit the relevant history from Mr Cuttance. Dr X did not merely consider hispresentation on the day in isolation. For example, when Dr X met him on29 November 2011, Dr X was aware of his recent headaches and his medications andsays he "informed me of past and recent medical history, which included a recent onsetof intermittent headaches for approximately six weeks". Dr X also says they exploredthat history and got full details of it. At the second examination on 20 December 2011,Dr X again discussed with Mr Cuttance, in considerable detail, the ongoing pattern ofheadaches he had been experiencing.[83] Finally, on the third examination on 6 January, Dr X was aware Mr Cuttancehad been booked for a review by nursing staff after experiencing further headaches atthe end of December 2011, and that he had stopped his anti-anxiety medication as ithad a common side effect of causing headaches. Dr X was also aware of the episodeof numbness in his forearm. Dr X explored his sleeping patterns and other concerns.Once again, it is clear Dr X took considerable time to understand the pattern ofsymptoms since Dr X had last seen him and which led to Dr X's decision not to referhim to neurology for further assessment.[84] Dr X was clearly aware of the need not just to note the symptoms presentingon the day, but to understand the pattern of symptoms leading up to that day, and Dr Xwas conscientious in doing that, whether Dr X got that information from the Medtechnotes or otherwise. I was not alerted to anything which was contained in the nursingnotes that, if Dr X had known about, would have inevitably led Dr X to make adifferent decision. In all the circumstances, there is nothing to suggest Dr X fell belowa reasonable standard on this count, let alone that it was causative of Mr Cuttance'sdeath.Other alleged failures to provide a reasonable standard of care[85] Mrs Stevens also submits that Dr X failed to provide a reasonable standard ofcare when Dr X failed to appreciate Mr Cuttance's condition was serious despiteongoing symptoms and despite not seeking a specialist opinion. This is particularlyso when Dr X failed to seek a second opinion after 6 January, which Mrs Stevenssubmits was a departure from "best practice", which is the required standard of care.[86] Mrs Stevens also submitted that Drs Turnbull, Lewis and Mottershead,concurred that a reasonable practitioner would maintain an attitude of uncertainty andan inquiring mind. Mrs Stevens claimed Dr X failed to do that. She argued Dr Xrepeatedly tested Mr Cuttance for signs of acute meningitis, despite the fact he did notexhibit those symptoms. In her view, this demonstrated that Dr X failed to maintainthe open-minded attitude of uncertainty and inquiry which is needed to ensure the righttreatment is provided.[87] In Mrs Stevens' view, the extreme rareness of the specific illness did notremove the responsibility to make inquiries, keep an open mind, and to look for adifferent diagnosis through seeking advice, particularly after the second consultationon 20 December 2011. In this regard, she refers to the evidence of Dr Lewis, whoconsidered that the symptoms which had been exhibited by 20 December 2011justified a specialist referral. In respect of Dr X's decision to order more blood testsand direct a physio appointment and then observe the response, Dr Lewis said:[Dr X ] hasn't given any credence or weight to the other – to the medicalrecord which contained all the nurses' consultations and those records areterribly important in looking after Mr Cuttance, so that there's – it's just amatter of judgment, but, yeah, I think that had those things been looked at,both Dr Turnbull and myself are agreed that a referral could have been madeat that time.[88] These are broad ranging grounds of appeal which challenge the factual findingsof the Judge. In that regard, the Judge accepted Dr Mottershead's evidence that thenursing staff and Dr X followed reasonable procedures, particularly when it wasdifficult to know when Mr Cuttance's chronic meningism would have been clinicallydetectable, as such meningitis is rare in neurology and more difficult to detect thanacute meningitis. The Judge also accepted that improvements in Mr Cuttance'scondition in prison, and the intermittent nature of his headaches, gave medical staff afalse sense of security. For example, the reduction in Mr Cuttance's CRP result, goingfrom 74 when he was in ED to normal range on 20 December 2011 was, asDr Mottershead said, "falsely reassuring".[89] While Mrs Stevens submits that it was essential to have an inquiring openmind, I do not accept that Dr X failed in this regard. Dr X's repeated tests for signs ofmeningism could not, in my view, be criticised. Acute meningitis is a life-threateningillness, and it was entirely appropriate for Dr X to check for this, and discount it, oneach occasion. Dr X did, however, work hard to try and find a diagnosis, and that wasacknowledged by Dr Turnbull in cross-examination. That is supported by the fact thatthe doctor sought blood tests to check for infection, considered whether theanti-anxiety medication – which had a known side effect of headaches – wasresponsible, and considered whether a neck injury could be causing the headaches andwhether physiotherapy would alleviate it.[90] While Dr Turnbull considered it was "departure from best practice", not tohave sought a second opinion by the second or third consultation, I would not departfrom the Judge's finding that such an issue was a matter of judgment, as conceded byDr Lewis. In light of his improved presentation on those occasions, a reasonabledoctor could have decided a specialist referral or a second opinion was not necessary.Whether an earlier referral of Mr Cuttance to a specialist in Dunedin Public Hospitalwould have given a chance of a better outcome, no-one could say unequivocally.Dr Lewis said "I agree with Dr Mottershead's evidence, you cannot say at which pointin time treatment would have resulted in a different outcome but it is entirely logicalto believe that the earlier treatment could have been instituted the more likely it wouldbe that there would be a better outcome". However, that is not the same as saying thatwould have been the outcome for Mr Cuttance.[91] This leads on to Mrs Stevens' submission that if Dr X's judgment was not "bestpractice", then it fell below a reasonable standard of care. However, that turns on whatis meant by a question of "judgment" or by the term "best practice".[92] In Whitehouse v Jordan, where a doctor was accused of negligence in usingforceps during a delivery in a manner that resulted in the baby having brain injury, itwas said:44[A]n error of judgment may, or may not, be negligent; it depends on the natureof the error. If it is one that would not have been made by a reasonably44 Whitehouse v Jordan [1981] 1 WLR 246 (HL) at 263.competent professional man professing to have the standard and type of skillthat the defendant held himself out as having and acting with ordinary care,then it is negligent. If, on the other hand, it is an error that such a man, actingwith ordinary care, might have made, then it is not negligent.[93] This reflects the fact that a professional person, acting with reasonable care andexercising professional judgment, cannot always be expected to take the correct actionor give correct advice. It is only when the decision is one that would not have beenmade by a reasonably competent professional, that negligence may be argued. I donot consider the evidence in this case went so far as to say the failure to referMr Cuttance to a specialist, or to seek other medical investigations earlier, wassomething no reasonably competent doctor would have done. Rather, in part with thebenefit of hindsight, it was opined that seeking a second opinion earlier would havebeen "best practice" in the sense explained by Dr Lewis, which was "a standard whereabsolutely people would say that was fantastic, you really did all the right things".That is not the standard required.[94] In terms of other tests that could have been done, there was a suggestion inMrs Stevens' submissions that a lumbar puncture should have been ordered. However,a lumbar puncture was done when Mr Cuttance was admitted to hospital on15 January 2022, and it failed to identify the cause of the infection. I cannot findtherefore, that doing that earlier would necessarily have improved the outcome forMr Cuttance.[95] In summary, I do not consider the Judge erred in finding Dr X provided areasonable level of care. Even if Mrs Cuttance had standing to seek a declaration thatthe respondent breached its obligation to Mr Cuttance under s 75(1) of the CorrectionsAct 2004, I would not have found that to be the case on the facts.Conclusion[96] Mr Cuttance's death was untimely and devastating to those close to him, inparticular his mother, and lessons can be learned from his experience. The Coronerfound that while "causes of the illness of Boyd Cuttance were obscure, the severity ofhis symptoms and the significant number of presentations, ought to have been awarning to those responsible for his medical care".45 However, the evidence does notgo so far, either in the Coroner's finding, or here, to suggest his death could, on thebalance of probabilities, been avoided if he had been referred to hospital earlier.[97] Accordingly, the appeal is dismissed. Costs are reserved. If costs cannot beagreed, cost submissions are to be filed and served by the Crown within 20 workingdays. Mrs Cuttance is to file and serve submissions in response within 10 workingdays of receipt of the Crown submissions. Costs will be determined on the papersunless I need to hear from the parties.Name suppression[98] Dr X's name is suppressed in accordance with the decision of the District Courtdated 26 January 2022.46 The publicly available version of this judgment will haveDr X's name redacted.Solicitors:Crown Law, WellingtonRoss Dowling Marquet Griffin, DunedinCopy To:Anne Stevens QC, Barrister, Dunedin45 At [26].46 Cuttance v Attorney-General [2022] NZDC 1195.