Estate of S H v Accident Compensation Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY Decision No. 288/2006 AI 23/05 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to section 151 of the Act BETWEEN ESTATE OF S H Appellant AND ACCIDENT COMPENSATION CORPORATION First Respondent AND DOCTORS A, H and E Second Respondents HEARD ON THE PAPERS RULING (STRIKING OUT APPEAL) ISSUED 6 JULY 2006 DATE OF THESE RULINGS 17 November 2006 REPRESENTATION Ms A de Jonge, advocate for appellant Mr J Roberts, counsel for first respondent Ms G Phipps, M McLelland and W Manning, respective counsel for second respondents RULINGS OF JUDGE P F BARBER ON SENSITIVE ISSUE CLAIM, REHEARING, APPLICATION AND ON COSTS My Ruling of 6 July 2006 [1] Although, on 26 October 2005, ACC accepted the estate's claim for personal injury cover (for the deceased S H), the estate has strenuously sought to pursue an appeal based on medical misadventure. In my ruling of 6 July 2006 I found, among other things, that there is no live controversy between the parties, that the appeal is moot, and that there are no considerations of public policy to justify the appeal proceeding about personal injury cover; and I struck out the appeal. Paragraphs 53, 58 and 59 of that decision read; "[53] Ms de Jonge then refers to the deceased having allowed sexual activity to occur at a time she was affected by prescription drugs and suffering from a drug induced mental condition when she would not have otherwise permitted such activity. Ms de Jonge seemed to be submitting that therefore the deceased must have cover for the mental injury suffered as a consequence, under s.21 of the 2001 Act within the description of an offence listed in its Schedule 3 and dealt with in the Crimes Act 1961, so that a sensitive claim has arisen. She submits that medical research shows that people who are prescribed psychoactive drugs are at an increased risk of sexual abuse and altered sexual behaviour because of the effects of those drugs and their chemical actions on the body, but that the deceased was not informed about those effects or risks. It is put that the deceased suffered mental injuries during the administration of drug treatment from the neuropsychiatric effects of the drugs and drug induced adverse sexual events. I did not understand this aspect to have been raised previously and it has not been dealt with on behalf of the first respondent or any of the second respondents. I doubt whether it is an issue which creates any further benefit to the deceased's estate in this case but, because it has not been dealt with before me, I reserve leave to apply in that limited respect ... [58] I understand (and sympathise with) the feelings and stance of the deceased's mother Mrs H. I can accept that the drugs/medication prescribed and used by the deceased may have been mind-bending in her case and may well have created or contributed to her state of mind to commit suicide. However, medical professionals can only do their dedicated best for a patient in terms of available medication, knowledge, and their assessment of that patient. There is no convincing evidence before me as to any medical error in this case. The Reviewer carefully analysed that aspect and concluded that medical misadventure had not been established. [59] As explained above, there is no longer an issue between the appellant and first respondent about personal injury cover. There is nothing for me to determine within my jurisdiction regarding this case. Accordingly, this appeal is struck out; but leave to apply is reserved for one calendar month in terms of the limited concept referred to in paragraph 53 above, and with regard to costs." The Issues [2] Consequential issues then are costs, and I was concerned that the estate might have a sensitive claim as I outlined in para 53 of my ruling. I did not want that possibility to be lost among all the paper put before me, although I am not aware of any further benefit which might accrue to the deceased's estate. The Submissions and Further Background [3] Since that ruling there has been a most helpful sequence of submissions on costs and on my para 53 comments. Also, the appellant estate has given notice filed on 23 July 2006 of appealing my ruling of 6 July 2006 to the High Court. [4] By submissions of 12 July 2006, Ms G E Phipps (as counsel for the second- named second respondent) sought $430 costs for her client on the basis that costs should ordinarily follow a finding that the appeal be struck out and that in this case the appellant had cover. However, her client only seeks costs at the rate of a Category 1 proceeding for one half day. [5] By memo of 19 July 2006 Mr Manning also applied for $430 costs for the first- named second respondent medical practitioner. [6] The appellant made application, with detailed technical data, on 23 July 2006 in terms of my para 53. I am not quite clear of the nature of the application but it must be for ACC cover as for a sensitive claim. Ms de Jonge also sought costs for the appellant and disbursements for medical reports, even though the appellant has failed in terms of the substantive issues covered in my 6 July 2006 ruling. Ms de Jonge sought $1,440 legal costs and disbursements with regard to that, and a further $900 for costs at review and significant amounts for medical reports. [7] On 2 August 2006 Mr Manning filed submissions for the first second-named respondent dated focusing on the sensitive claim aspect. He put it that should not affect his medical practitioner client and that Ms de Jonge's submission seems to him to be "yet another attempt to obtain a determination of medical error". He pointed out that the appellant has adduced no evidence that cover for mental injury would provide any entitlement in excess of that already granted (i.e. cover for funeral costs) because of ACC's decision of 26 October 2005 acknowledging cover. He submits that the sensitive claim approach is moot, and/or an abuse of process, on similar grounds to that which I explained in my 6 July 2006 ruling about the lack of medical misadventure. He then submitted that any sensitive claim would be misconceived at law in this case, is res judicata, and is an abuse of the leave which I had reserved in terms of paras 53 and 59 of my said ruling of 6 July 2006. [8] On 16 August 2006 my Registrar received a detailed Application For Rehearing by the appellant estate. That seems to have quite some similarity to the grounds set out in the appellant's 23 July 2006 Notice of Appeal but, generally, asserts that the appellant has been denied a Court hearing and natural justice, that I have not considered particular medical evidence, and that I had some ulterior purpose in not hearing medical evidence and in striking out the appeal. [9] By letter of 1 September 2006 Mr J Roberts, as solicitor, Legal Services, for ACC, does not oppose that 16 August 2006 application of the appellant and "leaves this matter to be decided by the Court". [10] By Notice of 18 August 2006 Ms Phipps opposed the appellant's application for rehearing on behalf of the second-named second respondent. She referred to an 8 February 2006 telephone conference of the parties with me when it was agreed by all parties that the matter proceed by way of written submissions and there was no objection on behalf of the appellant who participated in that procedure. [11] Ms Phipps referred to the content of Rule 493 of the District Courts Rules 1992 which sets out the basis for ordering a rehearing. She submits that there is no evidence, nor is it claimed, that my judgment has been obtained by any unfair or improper practice. There is no evidence which suggests any prejudice from considering what were essentially issues of law and, at most, expert opinion on the papers. There is no material evidence which has been discovered since the hearing. There is no evidence, nor could there be, of any suggestion of misconduct by any witness. Ms Phipps submits that there are simply no grounds upon which a rehearing could properly be ordered, [12] Ms Phipps also submits that there is no evidence to link the second-named second respondent to the alleged inappropriate prescribing of drugs causing the consequences claimed by Ms de Jonge. She puts it that the second named second respondent should be released from any further proceedings in terms of Rule 493(4). [13] Mr Manning (for the first-named second respondent) supports the submissions of Ms Phipps. [14] I also appreciate the typed submissions from Mr Roberts for ACC, dated 16 August 2006, and shall refer to portions of them below. Analysis of Present Situation before this Court [15] My ruling of 6 July 2006 struck out the appellant's medical misadventure proceedings. Apart from costs, there is now the issue whether this Court has jurisdiction to consider a sensitive issue claim by the appellant i.e. for a mental injury under s.21 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 as caused by a criminal offence listed in Schedule 3 of that Act. [16] My ruling of 6 July 2006 has been taken by the appellant's advocate as leaving open the issue whether the deceased should have cover for such a mental injury. This was not a matter which had been determined by the ACC or the Reviewer. [17] I agree with Mr Roberts that this Court has no jurisdiction in this case to consider a claim for a mental injury under s.21 of that Act. My jurisdiction on appeal from a Review Decision is limited to what has been considered by ACC in its primary decision and the Reviewer in the Review Decision. Judge Beattie has explained that concept in Paris (Decision 63/98) when dealing with equivalent provisions in the 1992 Act. [18] In the present case, ACC considered the appellant's death by suicide under the medical misadventure criteria. Its 19 July 2004 decision stated that "This claim has been declined because it does not meet the criteria for medical misadventure". Similarly, the Reviewer considered whether the appellant should have cover under the medical misadventure provisions of the 2001 Act. I dealt with that issue in my Ruling of 6 July 2006. [19] To establish cover under s.21 of the 2001 Act, the appellant is required to establish that a mental injury was caused by a Schedule 3 offence and specific criteria must be satisfied. ACC has not turned its mind to this matter, nor has it issued a primary decision on it. Nor has this issue been considered by any Reviewer. As I said in my 6 July 2006 ruling: "I do not understand this aspect to have been raised previously and it has not been dealt with on behalf of the first respondent or any of the second respondents". [20] This Court simply does not have jurisdiction to consider whether the late S H should have cover for a mental injury under s.21 because it has not been dealt with by ACC. If the appellant estate wishes to pursue such cover, there needs to be an appropriate fresh claim to ACC. Because S H has passed away, there will be obvious evidentiary difficulties in establishing that she suffered a mental injury caused by a Schedule 3 criminal act. [21] In any case, I repeat that it is difficult to see what further entitlements would be payable. [22] Further still, any such claim under s.21 would not seem to involve any of the second respondent medical practitioners. [23] In Khan (162/2006), Judge Cadenhead explained that an application for a rehearing of a decision such as mine of 6 July 2006 is misconceived and the appropriate course would be an application that I recall that decision bearing in mind the narrow grounds on which a recall might be granted. In any case, it is clear from R493 and cases such as UDC Finance Ltd v Madden [2000] NZLR 504 (HC) that a rehearing, or recall, should only be ordered where there has been a miscarriage of justice. I cannot find any evidence of that. I agree with Ms Phipps' reasoning about that issue, - refer para 11 above, and that there are no grounds upon which a rehearing or recall could be granted in this case. Conclusion [24] I rule that, at present, this Court has no jurisdiction to consider whether the late S H should have cover for a mental injury under s.21. [25] There are no grounds for ordering a rehearing or recall. [26] The appellant's applications are dismissed. There has been no opposition from the appellant to the said respective costs applications by two of the second respondents, and those applications are granted. In the ordinary course, costs follow the event. There is no good reason for the appellant to be awarded costs in regard to events confined to my ruling of 6 July 2006 or in relation to the present applications, so that the appellant's application for costs is declined. Costs prior to this Court's involvement have already been appropriately dealt with by the Receiver, Ms Kay Stringleman. After careful consideration of proper factors, she determined that costs lie where they fell at that time, and I agree with that. Judge P F Barber District Court Judge WELLINGTON