Estate of Rowell v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 291 UNDER The Accident Compensation Act 2001 IN THE MATTER OF of an application for leave to appeal to the High Court pursuant to section 162 of the Act (AI 45/07) BETWEEN ESTATE OF SUMMER ROWELL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: (on the papers) Submissions: Mr D J Heperi advocate for the applicant Ms L Hansen for respondent Decision: 30 August 2012 DECISION OF JUDGE D A ONGLEY ON LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal against a judgment of His Honour Judge M J Beattie issued on 12 June 2008, Summer Rowell v ACC [2008] NZACC 119 [2] The judgment concerned a claim for treatment injury at the time of the birth of Summer Rowell on 20 January 2005. The only issue was the question of causation. The claim alleged that a midwife failed to detect the baby's lowered heart rate in time to take emergency measures for rescusitation. [3] The period in question was before delivery from 11.45 pm, when it is alleged there was no detected heartbeat, until delivery at five past midnight. The baby had suffered significant hypoxia and had consequent brain damage. The respondent and the interested party (the midwife) maintained that the injury was caused by an abnormal delivery and not by any act or omission by the midwife. [4] Summer survived through infancy but the Court is informed by Mr Heperi's submissions that she has since died. The events were devastating for her and her family. Her parents have pursued the claim with the purpose of seeking the truth about their daughter's birth. In this judgment I will refer to them as "the appellant" [5] The midwife's explanation was that the umbilical cord was looped twice around the baby's neck. She said that during delivery she unlooped the cord once and that the other loop slipped off during delivery. The respondent claimed that the most probable explanation for the baby's hypoxia was that the flow of oxygen had been prevented before delivery by the looped cord. Although other causes were possible, none was identified. [6] The Corporation obtained an opinion from a specialist midwifery advisor, who stated: "There does not appear to be a causal line between birth asphyxia and management of labour or birth. Birth asphyxia was present as the baby's Apgar score was 0 at 1 minute however one cannot say with certainty that management of labour and birth (which is treatment given) led to birth asphyxia. It is more likely that the cord around the baby's neck twice and being tight and with hand entangled in the loop of the cord contributed to birth asphyxia. However Michele Lord or any other practitioner would not have been able to predict this." [7] The opinion was supported by another specialist midwifery advisor. No specialist neonatal paediatrician was consulted in the investigation of the claim. [8] The application for leave to appeal to the High Court is based on arguments of fact. Under s 162 of the Act an appeal to the High Court can only proceed on the ground that the decision of the District Court is wrong in law. The appellant argues that the resolution of fact issues in the District Court also involved questions of law that should be considered on a further appeal. As Ms Hansen submitted for the respondent, an ultimate conclusion of a fact-finding body can only amount to an error of law where there is a state of affairs in which there is no evidence to support the determination or one in which the true and only reasonable conclusion contradicts the determination: Edwards v Bairstow [1956] AC 14, 36; Bryson v Three Foot Six [2005] 3 NZLR at [26]. [9] In the application for leave, the appellant outlined three grounds: 1. Whether denial of the appellants request to cross examine the interested party constituted a breach of natural justice or otherwise compromised the Courts ability to make a proper determination of the truth between disputed facts. 2. Whether His Honour erred in giving preference to unsworn and unsigned written statements purportedly made by the interested party and another witness over the sworn evidence of the witnesses for the appellant. 3. Whether the respondent's reliance on non-specialist opinion was a reasonable discharge of their responsibility under section 54 of the Accident Compensation Act 2001. [10] In further submissions, the appellant also raised a question of informed consent. The informed consent question related to the absence of intensive care facilities at the Waterford Birthing Centre where the deliver occurred. While Mrs Rowell was advised of the facilities available at the Centre, she says she was not advised of the absence of intensive care. After the birth, the baby was taken by ambulance to the Neonatal Intensive Care Unit at Waikato Hospital, involving a delay of perhaps half an hour longer than if the birth had occurred in a Hospital with a NICU. [11] On this point, Ms Hansen submitted that the question of informed consent was not part of the appeal. The respondent says it was not part of the claim for cover. It was not considered in the review decision from which the appeal was brought. Mr Heperi replied that it was a matter upon which discussion was specifically had with the judge at the hearing of the appeal but was not addressed in the appeal decision. [12] That assertion is not explicit enough to require consideration of a question that the Judge erred in law by failing to consider a matter raised in the appeal. The appellant should be able to point to written submissions on the point or to explain how the point was advanced in the argument on appeal. But there is only a bald assertion that it was discussed with the Judge. An argument on informed consent would have had to traverse the nature of the claim, a deficiency in the Corporation's investigation of the claim, evidence of the circumstances of the mother's consent, and also evidence of the probability of some degree of injury being avoided by earlier intensive care following the birth. It was not a point that could have been advanced "in discussion". [13] As to the question of reliance on non-specialist opinion, Ms Hansen submitted that whether the Corporation should have engaged a specialist paediatrician was not a question before the District Court. In his judgment, Judge Beattie recited that the Corporation sought independent opinion from two midwives, a neonatal paediatrician, and reports from treating specialists at Waikato Hospital. One of the midwive's reports stated that there was no apparent problem that would have required the presence of a paediatrician at the birth. That was a question of fact amply supported by the evidence. While a paediatrician's opinion would have been useful, there is no obvious reason why it was needed to review the standard of treatment. [14] The Health and Disability Commissioner reported in August 2006 following a complaint by the appellant concerning the midwife's conduct. He referred to a report by his clinical advisor, Dr Stewart Tiller, that the midwife's care was of an acceptable standard. The Commissioner did report some relevant comments by Dr Tiller, in the following paragraph: "He [Dr Tiller] stated that he would expect there to have been a longer period of bradycardia, of at least 10 to 15 minutes duration, to explain the severity of the condition of Summer at birth. Summer's heart rate at 2345 was 110 bpm. This had dropped to 90-95 bpm 15 minutes later. Dr Tiller stated that it is difficult to say exactly when Summer's heart rate dropped within this time. He points out it is possible that, given Ms Lord's stated practice of assessing heart rate after every one or two contractions in the second stage of labour, a period of around 10 minutes may have lapsed between the heart reading at 2345 and the next reading. This means that the drop to 90-95 bpm may have occurred earlier than 2400. Dr Tiller stated that this may explain the severity of Summer's condition." [15] This observation gave some support to the appellant's belief that there was no heartbeat by 2345, but it was not at all conclusive and was part of the overall evidence for the Judge to consider. At least by the time of the review there was documentary evidence that did not point to any complex question that would have required specialist paediatric evidence. [16] The appeal involved two disputed fact questions. The Judge stated: [5] There are two matters of substance where there is disagreement between the protagonists in this matter, namely, Ms Lord on the one hand and Mr and Mrs Rowell and Mrs Kingi on the other. Firstly whether or not a foetal heart beat was discerned at 2345, and secondly, whether at the moment of birth the cord was wrapped around the baby's neck. [17] Ms Lord's claim that she detected the heart rate of 110 bpm at 2345 was contradicted by evidence by the parents and Mrs Kingi who believed that Ms Lord tried to detect a heart rate but could not. She did not take any action other than to encourage the mother to push. Before discussing the central question of weighing evidence on that disputed question, I refer to the advisory midwife's opinion concerning proper practice. Ms Waller wrote in her advice to the Corporation: "The standard practice of foetal monitoring during labour is to do 15 minute to half hourly auscultations in first stage of labour and every five minutes or after every contraction in second stage of labour. Michele Lord in her statement states that her usual practice is to assess foetal heart rate on admission and then half hourly in first stage of labour and then every or every second contraction for 30 seconds in second stage of labour. This is reasonable. She further states that she does not record each monitoring that take place however records readings regularly and certainly if there significant changes. From the clinical records it is evident she has done this. The danger of not recording each time the foetal heart rate is monitored, is that it can give an impression of sporadic monitoring though regular monitoring would have occurred. Use of intermittent auscultation in labour considered low risk, which it was in [Mrs Rowell's] case, is appropriate. Appropriate action was taken when there was foetal bradycardia at 24.00hrs so one can assume this would have happened if foetal bradycardia has occurred earlier in labour." [18] The evidence before the Court was that the periodic auscultations were appropriate. The proposition that there was no heartbeat at 2345 had to be weighed bearing in mind that the midwife would have been grossly negligent if she had then done nothing. Judge Beattie recorded the conflict in evidence as follows: [10] The statements made by Mrs Rowell, her husband and her mother, are all to the effect that a heart beat was sought by using the Doppler instrument at 2345, but that no heart beat could be heard or discerned. All three state that midwife Lord also did not hear a heart beat but gave as the explanation that it was probably because the baby was too far down the birth canal. They then state that she said with some alarm, "Dana you've got to get this baby out now". [19] Judge Beattie went on to record the evidence of the family members that they did not see the cord looped around the baby's neck and they said that no mention of it was made by the midwife at the time. Ms Lord recorded the loop in her notes later on. The Judge said: [14] Whilst I accept that the Rowells may not have seen the cord around the baby's neck, I find that it was in fact so and the fact of it not being seen may well be explained by the fact that as the baby was delivered the cord became untangled. For someone who was not specifically looking for such a circumstance, it was probably over before those watching had taken the whole scene in. Indeed, I find that they were not in the best position to observe in any case [15] In any event, the looping of the cord is the only plausible explanation for Baby Summer's birth asphyxia. [20] In weighing evidence on the two fact questions, the Court had written and oral evidence from the parents and grandparent, but only typewritten unsigned statements from Ms Lord and the trainee midwife. In this jurisdiction, the Court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a Court of law. Weight will be given to documentary evidence depending on the context and circumstances. It was open to the Judge to consider that the midwife was engaged in a specialised task in which she adopted a procedure familiar to her and observed a series of events in the birthing process in a methodical and conscientious manner. She was more likely to be able to give a reliable account of essential points than the family members who were not so closely or methodically engaged. [21] The appellant submits that the Court could not reasonably have preferred the evidence of the midwives over that of the family members. The respondent submits that an ultimate conclusion of a fact-finding body can only amount to an error of law where there is a state of affairs in which there is no evidence to support the determination or one in which the true and only reasonable conclusion contradicts the determination. [22] For the foregoing reasons, I conclude that it was open to the Judge to reach the conclusions that he did on the evidence before the Court and a resulting error in law is not capable of bona fide and serious argument. [23] In written submissions, Mr Heperi explained the ground of denial of a right to cross-examination as a failure by the Reviewer which "severely restricted the depth of any investigative approach and showed bias toward Michele Lord by simply accepting her unsworn evidence without question and effectively dismissing the sworn evidence of Mr and Mrs Rowell and Susan Kingi as not being credible." Ms Hansen submitted on this application, that the Reviewer's failure, if such it was, cannot be an error of law in the conduct of the appeal hearing in the District Court. [24] In further written submissions, Mr Heperi said that it was assumed that the respondent, the Reviewer or the Judge at appeal would each themselves take any necessary steps to reasonably clarify any discrepancies to ensure the credibility of the evidence available to each of them to ensure the integrity of their respective decisions. Mr Heperi said: 1.19 The arguable error of law which we promote is whether the proper taking of all of the evidence into account should have actually resulted in the need for the identified evidential discrepancies to be reconciled before any expert opinion was obtained and any decision under the legislation was confirmed by the respondent the reviewer and the court. 1.20. It was the respondent who had the primary responsibility to ensure the integrity of the evidential clinical records prior to issuing their decision but no active step was taken by them either on their own initiative or when the discrepancies were clearly identified to them. [25] Hr Heperi therefore submitted that the Court had a responsibility to put the evidence in order by calling witnesses to establish the primary facts and submitting those to expert analysis. But that is not the function of the Court when hearing an appeal. The Court could have considered setting aside the Corporation's decision on the ground that it did not properly investigate the claim, and then referring the claim back for a further primary decision. In order to obtain leave for appeal to the High Court, the appellant would have to point to an error of law by the Judge in accepting that the Corporation's investigation was adequate in the circumstances. [26] There are two arguments bound up together. First that the investigation was flawed, and secondly that the Court should have rejected the evidence of the midwives, or should have given that evidence such limited weight that it could not have been preferred over the evidence of the family. [27] The weighing of evidence was essentially a question of fact and does not provide a ground for further appeal, but a question of law could arise if the evidence was demonstrably unreliable, or if the Court wrongly refused an application by the appellant to challenge the evidence. Mr Heperi says that the appellant applied for leave to cross-examine the midwives and was refused. He says that the appellant was thereby deprived of an opportunity of testing the evidence of Ms Lord on the essential questions of whether there was a heartbeat at 2345 when no emergency procedure was undertaken, and whether the baby's hypoxia was explained by a looped umbilical cord. [28] Both questions were uncomplicated and it could be imagined that Ms Lord, if she had attended the hearing, would simply have confirmed her earlier statements. However she could have been questioned about circumstances that might have dented her reliability. [29] But there is no evidence that an application was made or refused. There was a telephone conference on 5 May 2008, the day before the hearing of the appeal. The following minute was made by a case manager who supervised the conference call: "A Telephone conference took place concerning this appeal at 10.00 am this morning. Parties present were David Heperi for the appellant, Lisa Rice for ACC, Carla Humphries for the 3rd Party, Jessica Fowler for the tiegistry and Judge Beattie presiding. The conference call was to discuss the issue of the appellant's advocate calling witnesses at the hearing of this appeal in Hamilton on Tuesday 6 May 2008. The Registry made the following minutes from the conference call: - Judge addresses witness statements, asks what purpose they are being introduced for. - Heperi for the appellant advises vital facts are in dispute, heart rate monitoring times. Therefore necessary to introduce the statements. Judge asks of Heperi how/if the evidence in the statements was introduced at hearing. Mr Heperi confirms how this was done. Heperi also confirms that the midwife did not give evidence. - Ms Humphries advised she was not able to contact her client due to her being overseas, Ms Humphries confirmed she is happy to proceed as scheduled, unless the witnesses give oral evidence: - Ms Rice advised that the witness statements are very detailed, and notes that as the midwife M Lord hasn't given evidence, the 3" party's position may need to be reconsidered and give a reply accordingly. - Judge is satisfied that the hearing can proceed as scheduled, as he does not consider it necessary for the witnesses to give oral evidence. - All parties are in agreement to the hearing proceeding in Hamilton on 6 May 2008." 30] The minute recorded the Judge asking Mr Heperi about evidence being introduced at an earlier hearing, which could only have been the review hearing. The file shows that there was no sound recording of the review hearing because the equipment malfunctioned. The minute of the telephone conference concerned the introduction of statements at the appeal hearing, possibly to make up for the lack of a sound recording of the review. The Judge indicated that "the witnesses" would not have to give oral evidence. There was no record of an application at that (late) stage for either midwife to be produced for cross-examination. [31] The tenor of the present application is that it was the Reviewer who declined an application for the midwife to be called to give her evidence. The Reviewer recorded that she had adjourned the hearing part heard to consider whether it was necessary to reconvene for the midwife and student midwife to attend for cross-examination. She decided not to. [32] There is no record of the appellant having an application refused at the appeal hearing. Ms Hansen says that no application was made and I accept that as a statement by an officer of the Court. It is consistent with the absence of any application in the Court record. In written submissions, Mr Heperi stated: 1.3 It is true that the appellant did not approach the interested party directly to be cross examined. The appellant did directly approach Amber Argaet, then student midwife and now registered midwife, initially receiving a cautious verbal response which did not eventuate in any further interaction. It was however hoped and pleaded before the respondent, the reviewer and the court, that the need for cross examination would be recognised and actioned for the ultimate benefit of all involved, 1.4 We submit that it was within the scope of the powers of the respondent, the reviewer and the court to facilitate the cross examination which each avoided to the detriment of their respective decisions. [33] It may well be that the inequality of evidence was raised in discussion and Mr Heperi may have indicated that he would have liked to cross-examine the two midwives. But that did not result in an application before the Judge to consider adjourning or giving directions to facilitate cross-examination. If there had been such an application there would necessarily have been considerable discussion. None is recorded. Mr Heperi's claim is assertive and vague. It does not point to a specific application put before the Judge. The record indicates something quite different; an application to introduce new evidence and possible comment by the other parties on the need for a response. [34] It could not be an error of law for the Court to decide to proceed without calling the midwives. If the Court has the power to call witnesses, this was not a case to take such an unusual step. The ordinary function of the Court was to deal with the evidence presented and to consider any applications by a party to hear other witnesses if the occasion arose. [35] Finally, the appellant submits that it was an error of law for the Judge to rely on unsigned statements by the midwives in preference to signed statements by the family, who had given oral evidence before the Reviewer. [36] It was indeed very poor practice for the respondent to have relied on unsigned statements by the midwife and student midwife. The Court was entitled under s 156 to admit the statements in evidence. The statements had been prepared in 2005 and the conduct of the midwives, including the statements, had been submitted to examination by responsible practitioners and by the Health and Disability Commissioner. There was nothing to suggest that the statements did not represent the midwives' account of what occurred and the lack of signatures was incidental. [37] After considering the appellant's grounds for leave to appeal, I can find no question of law that is capable of bona fide and serious argument. [38] For those reasons, the application for leave is refused. Judge D A Ongley District Court Judge