Estate of Lilo v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 64 IN THE DISTRICT COURT DCA No. 210/95 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 45 / 45 / 026 6 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN ESTATE OF TE.E. LILQ APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 12 February 1996 Date of Decision: 28 August 19 96 L.A. Jones as Counsel for the appellant A.E. Howman as Counsel for respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the late Mr Lilo's death was as a result of personal injury by accident. Background Mr Lilo was aged 38 years. He was well when he left home to go to work at the shoe factory on the Friday morning 23 September 1994. He came home at lunchtime complaining of a sore throat. At a time after 2.00 p.m. that afternoon Mr Lilo told Mrs Lilo 2 . he was unable to breath properly. He went to see his doctor but collapsed and died in Dr Wu's waiting-room about 4.00 p.m. that afternoon. Dr J. Vuletic in her pathologist report of 13 November 1994 stated:- "The post mortem level of serum tryptase is indicative of a severe anaphylactic reaction and post mortem findings while not specific are consistent with that diagnosis. It is not usually possible to determine the cause of the anaphylactic reaction at autopsy; possibilities include ingested food or medication or insect sting. In my opinion death resulted from acute anaphylactic reaction." Dr Wu, Mr Lilo's general practitioner, had not seen his patient prior to his death. Dr Wu was not able to explain the cause of Mr Lilo's death and said that there had been no suggestion of any inhalation or oral ingestion of any solid, liquid or foreign body immediately prior to his death. On 25 January 1995, the respondent declined Mrs Lilo's claim for compensation. A review was sought from that decision. At the hearing on 13 June 1995, the review hearing was adjourned to enable the appellant to obtain a further medical report from Dr David Sage, a specialist anaesthetist. In his report of July 1995, Dr Sage concluded that anaphylactic reaction could be caused by two different triggering agents - either extrinsic or idiopathic. Dr Sage was of the opinion that there could have been three triggering agents. In Mr Lilo's case, these were:- ( i) The oral ingestion of a drug, such as aspirin or penicillin; Inhalation or oral ingestion of a food or air-borne substance; 3. (iii) Spontaneous idiopathic anaphylaxis. Dr Sage suggested that the prospect of trigger agents such as venoms, plants and animal products could be eliminated. The Review Officer in his decision of 17 August 1995, concluded that the appellant had failed to prove, on the balance of probabilities, the triggering event which caused Mr Lilo's death. He considered that in order for the appellant to succeed it would be necessary to identify at least when the agent was swallowed or inhaled, and preferably which particular agent was the likely cause of death. Further Evidence: A second medical report from Dr Sage dated 12 January 1996 has been obtained by the appellant. Dr Sage concludes that none of the idiopathic causes of anaphylaxis fit the clinical circumstances of Mr Lilo's death. In his view, intravenously administered triggering agents and inhaled substances can cause anaphylactic response within two minutes and if untreated death by 15 minutes. Dr Sage said:- "Insect bites, such as bee strings, usually deposit venom into skin and subcutaneous tissue producing an immediate local reaction, but time for absorption into the circulation produces a slower onset of generalised anaphylaxis over 15-60 minutes with death more likely to ensue after some hours, perhaps one to four. Onset of anaphylactic reaction after oral ingestion of the extrinsic causative agent produces a less abrupt onset of symptoms which may be delayed for around one hour, thereafter the time course to death if untreated is variable, likely to be more than two hours and probably several hours" Submissions: The definition of accident is contained in s.3 of the 1992 Act. Accident means:- 4. "(a) A specific event or series of events that involves the application of force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of event, or (b) The inhalation or oral ingestion of any solid, liquid, gas or foreign object where the inhalation or ingestion occurs on a specific occasion; but does not include inhalation or ingestion of a virus, bacterium, protozoa or fungi unless that inhalation or ingestion is a result or a criminal act or of other person; or (c) Any exposure to the elements or extremes of temperature or environment within a defined period of time not exceeding 1 month that causes disability that lasts for a continuous period exceeding 1 month or death; or (d) Any burn or exposure to radiation or rays of any kind on a specific occasion that is not a burn or exposure caused by exposure to the elements; or (e ) The absorption of any chemical through the skin within a defined period of time not exceeding 1 month .. but excludes any of the occurrences specified above that is treatment by or at the direction of a person who has qualifications equivalent to those of a registered health professional in New Zealand." Counsel for the applicant submits that the accident falls within the definition of s.3(a) or alternatively 3(b) of the Act. There is no doubt that Mr Lilo was well when he left for work. At about 2.00 p.m. he told Mrs Lilo he was unable to breathe properly and at about 4.00 p.m. he died in Dr Wu's waiting-room before the doctor could see him. In the pathologist's opinion death resulted from acute anaphylactic reaction. It was Counsel for the appellant's submission that there is quite definitely an event or an occasion as opposed to a gradual process. Injury resulted. Dr Vuletic, the pathologist 5 . raised the possibility of a bee string which is the application of a force or resistance external to the body. Dr Sage has concluded that none of the idiopathic causes of anaphylaxis fit the clinical circumstances of Mr Lilo's death. Counsel for the respondent submits there are evidential difficulties associated with proving the existence of either a bee sting or an oral ingestion of a causative agent. He submitted that the bee sting could be eliminated given there was no evidence at autopsy of a localised reaction upon his skin. This conclusion was initially excluded by Dr Sage although he states that insect bites such as bee sting usually produce an immediate local reaction. Counsel for the respondent further submitted that there is insufficient evidence to support the conclusion that the oral ingestion of a causative agent caused the anaphylactic reaction. Conclusion In my view, however, the pathologist has specifically pointed out that it is not usually possible to determine the cause of the anaphylactic reaction at autopsy. Extrinsic agents by injection and prescribed mediation have been eliminated and bacterium, protozoa, virus and fungi have been discounted. Thus the extrinsic agent must be by inhalation or ingestion or venom. Venom can be excluded as Dr Sage has concluded that: "Under the circumstances, the most likely cause for Mr Lilo's anaphylaxis is an extrinsic trigger such as aspirin or food or an inhaled substance." In my view, the appellant has proved on the balance of probabilities that the anaphylactic reaction was caused by oral ingestion or inhalation. For the purposes of s.3(b) of the Act it is not necessary to know which. 6. As counsel for the appellant has submitted, "acute anaphylactic reaction by its very nature and definition unquestionably arises from a specific event" and ".....death occurs within a matter of hours from the inhalation or ingestion of the agent." In my view s.3(b) of the Act does not require identification of the specific occasion. It is enough that it occurred in the case of oral ingestion or inhalation several hours before death. The appeal is allowed. The appellant is entitled to costs. If these cannot be agreed then leave is granted to make submissions in writing. (Jane H. Lovell-Smith) District Court Judge