McTague v Accident Compensation Corporation (Leave to Appeal)

MMA IN THE DISTRICT COURT AT CHRISTCHURCH [2018] NZACC 61 ACR 53/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO SECTION 162 OF THE ACT BETWEEN GEOFFREY McTAGUE Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers Judgment: 24 April 2018 JUDGMENT OF JUDGE AA SINCLAIR [Leave to Appeal S 162 Accident Compensation Act 2001] [1] This is an application for leave to appeal a judgment of Judge L G Powell delivered on 14 July 2017. District Court Judgment [2] The issue for determination in the appeal was whether Mr McTague was entitled to cover for a treatment injury suffered on 22 February 2014. On that day Mr McTague had an aspiration of his ankle at the Emergency Department at Wellington Hospital. His Honour set out the treatment notes and the symptoms said to have been experienced by Mr McTague following the aspiration. After detailing the requirements for a treatment injury under s 32(1) of the Accident Compensation Act 2001 (the Act), he stated: [9] In this case the primary question is whether the treatment received by Mr McTague from Wellington Hospital in February 2014 has caused any injury that can be covered under the Act. The second critical part of the definition with regard to the present appeal is the requirement that in the event any injury is identified whether it was caused by the treatment Mr McTague received. [10] It is important to note that whether or not Mr McTague gave his informed consent to the aspiration will only be relevant if indeed there is an identifiable injury and if there is then a causal link between the aspiration and that injury. As a result, any issue with informed consent cannot change the consequences of the treatment. Thus if the aspiration was carried out without informed consent unless the aspiration can be shown to have caused an injury Mr McTague will not be entitled to cover. [3] His Honour found that there was no evidence supporting Mr McTague's claim that he suffered any injury besides the aspiration itself. With respect to the aspiration, His Honour observed that there was no evidence that the puncture wound had not healed or that it had given rise to any ongoing problems and in any event, as a puncture was necessary to draw off fluid in order to aspirate the ankle, the expected physical effects of the aspiration itself were by definition, a necessary part of the treatment and as a result, pursuant to s 32(1)(c), cannot give rise to a treatment injury. [4] His Honour found that there was otherwise no contemporary record of any other identifiable injury arising out of the treatment Mr McTague received on 22 February 2014 either in McTague's general practitioner records or in the treatment history obtained from the Wellington Hospital. [5] Judge Powell was satisfied that the evidence was "absolutely overwhelming" that Mr McTague had suffered no injury capable of being covered still less one that was caused by the treatment he received at Wellington Hospital on 21 February 2014. [6] His Honour further found that even if an injury could be identified there was no evidence before the Court that the type of symptoms identified in the claim form and/or later described by Mr McTague, could have been caused by the aspiration or any local anaesthetic or x-ray. The absence of such evidence was also fatal to Mr McTague's claim for cover. His Honour dismissed the appeal accordingly. Application for leave to appeal [7] Section 162 of the Act provides that an applicant is entitled to appeal to the High Court on questions of law. Importantly, the point(s) of law that are the subject of an application for leave to appeal must be capable of bona fide and serious argument.' [8] In the present case, Mr McTague filed lengthy submissions detailing his medical history and discussing the evidence. In his reply submissions, he highlighted the following issues as errors of law: [i] He (Mr McTague) did not consent to the aspiration of his ankle and the issue of informed consent was not properly addressed. [if] The issue of the gout diagnosis was not properly addressed. [ifi] No compelling evidence had been supplied supporting the justification for the aspiration of his ankle on 21 February 2014. [iv] The notes and report from his general practitioner were not properly considered by the Corporation. [v] The Corporation glossed over significant medical issues and misrepresented the facts. [vi] The Corporation failed to check the facts and medical history and has not taken full legal responsibility for the information provided to the Court. Analysis [9] Mr McTague's submissions focused on these issues and other complaints as to the nature of his treatment and the way in which this matter has proceeded. Some of Impact Manufacturing Lid v Accident Rehabilitation and Compensation Insurance Corporation Wellington HC AP 266/00 Doogue at [4]-[9]. Impact Manufacturing Lid at [4]. the issues raised are more in the nature of criticisms directed at the Corporation. Furthermore, on careful consideration, all the issues raised by Mr McTague relate to factual matters/allegations. They do not raise any question(s) of law capable of bona fide and serious argument justifying the granting of this application. Decision [10] In these circumstances, the application for leave to appeal to the High Court is dismissed. AA Sinclair District Court Judge