HART V ACCIDENT COMPENSATION CORPORATION & ANOR CA CA123/05

HART V ACCIDENT COMPENSATION CORPORATION & ANOR CA CA123/05 25 October 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA123/05BETWEEN HAMISH HART Applicant AND ACCIDENT COMPENSATION CORPORATION First Respondent AND MIKAEL MATTI AMBROS Second Respondent Hearing: 17 October 2005 Court: Hammond, William Young and Panckhurst JJ Counsel: C L Garvey for Applicant Second Respondent in person B D Gray as Amicus Curiae Judgment: 25 October 2005JUDGMENT OF THE COURT The application for leave to appeal is dismissed. Dr Hart is ordered pay the second respondent usual disbursements. REASONS(Given by William Young J) [1] Mrs Susan Ambros died at North Shore Hospital in the early hours of 20 July 2000. Her husband, the second respondent, sought accident compensation. He did so on the basis that her death was caused or contributed to by medical error on the part of the appellant, Dr Hamish Hart, the cardiologist at North Shore Hospital who was responsible for her care. This claim was rejected by the Accident Compensation Corporation ("the Corporation") and its decision was upheld on review. An appealto the District Court by Mr Ambros was dismissed by Judge Beattie on 5 June 2003. That decision, however, was reversed in the High Court by Harrison and Heath JJ (Ambros v Accident Compensation Corporation CIV 2004-404-3261 21 March 2005). [2] In a further judgment delivered on 3 June 2005, Harrison J granted the Corporation leave to appeal to this Court by way of case stated. The point in respect of which leave to appeal was granted relates to a question of causation. In the same judgment he declined Dr Hart leave to appeal. [3] Dr Hart now seeks leave to appeal from this Court.The relevant legislation[4] The case falls to be determined under the provisions of the Accident Insurance Act 1998 ("the 1998 Act"). We note that Mr Ambros resisted the application for leave to appeal on the basis that Dr Hart sought leave to appeal by reference to the provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001. This point has no merit and we leave it on one side.The test for granting leave to appeal[5] The test we apply comes largely from Waller v Hider [1998] 1 NZLR 412. In that case Blanchard J noted (at 413): The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.[6] Waller v Hider concerned a proposed second appeal pursuant to s 67 of the Judicature Act 1908 and such an appeal, unlike the appeal provided for by the 1998 Act, is not confined to questions of law. For this reason, Blanchard J went on to discuss the circumstances in which an appeal, on a point of fact, might be the subject of a grant of leave. This is what he said (also at 413):When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would-be appellant .The last part of this passage would assist Dr Hart if an appeal on questions of fact were available in the present context.Overview of the case[7] On 14 July 2000 Mrs Ambros was admitted to North Shore Hospital with chest pain. The eventual diagnosis was cardiac disease requiring an angiogram for more specific diagnosis. On 18 July 2000 arrangements were made for an in-patient angiogram to be performed at Greenlane Hospital on 20 July 2000. Unfortunately, Mrs Ambros died in the early hours of that day. [8] Broadly speaking, the complaint made by Mr Ambros against Dr Hart was that he had failed to ensure that Mrs Ambros was adequately monitored. A subset of this complaint was the suggestion that Dr Hart's risk assessment in respect of Mrs Ambros was faulty or incomplete. It is possible that had she been monitored her death might have been avoided. Dr Hart has maintained that the level of care that Mrs Ambros received was consistent with the resources available (particularly monitoring equipment) and Mrs Ambros' condition as he assessed it. A number of reports were obtained in relation to a complaint made by Mr Ambros to the Health and Disability Commissioner and his accident compensation claim. These reports all supported the position of Dr Hart in the sense that all the writers expressed the view that his care of Mrs Ambros had been appropriate.[9] At the hearing before Judge Beattie, Mr Ambros was self represented. Dr Hart gave evidence and was cross-examined by Mr Ambros. No expert evidence was adduced on behalf of Mr Ambros to the effect that Dr Hart had been negligent. [10] Judge Beattie duly delivered a decision in which he found that there had been no medical error that caused or contributed to Mrs Ambros' death. [11] Mr Ambros was granted leave in the High Court to appeal against that decision. In the High Court Mr Gray was appointed as an amicus curiae, in effect to present arguments on behalf of Mr Ambros. The appeal was heard before Harrison and Heath JJ and in the judgment now under challenge they: (a) Concluded that Judge Beattie's decision was erroneous in point of law; (b) Decided that they should assess the underlying questions of fact rather than remit the case to the District Court; (c) Held that Dr Hart was negligent (ie that there was medical error in his treatment of Mrs Ambros); and (d) Concluded that his medical error had relevantly caused or contributed to the death of Mrs Ambros.The status of Dr Hart to participate in the proceedings in the District and High Court and, as a party, to appeal[12] Dr Hart was entitled to participate in the proceedings before Judge Beattie by reason of the combined effect of ss 145(c) and 158(1)(b) of the 1998 Act. The right under s 158 was "to appear at the hearing of the appeal [ie in the District Court] and to be heard at it". [13] The 1998 Act was not explicit as to his right to participate in the High Court proceedings. It is, however, well arguable that Dr Hart's statutory rights of participation in the District Court (which would have given him a right of appeal ifJudge Beattie had found against him) and the rehearing nature of the appeal to the High Court mean that he should have been joined to the appeal as a respondent. Be that as it may, Dr Hart was not a respondent to that appeal. Rather, he (along with the Waitemata District Health Board) were granted leave in the High Court "to intervene" but on the condition that neither sought costs. The jurisdiction exercised presumably was that referred to by Randerson J in Hosking v Runting(CP527/02 11 February 2003). [14] Considerable uncertainty surrounds the status of intervenors, the extent to which they are bound by the result of the proceedings and, of more relevance here, their entitlement to appeal. As a matter of principle, it would be odd if a person whose legal rights are not directly engaged by proceedings (and thus the judgment which is delivered) could have a right to challenge that judgment. Further, that the same status (ie that of intervenor) was accorded to both Dr Hart and the Waitemata District Health Board means that it is not entirely easy to regard the High Court's appellation of Dr Hart as an intervenor as simply a misnomer. We say this because the Waitemata District Health Board did not have statutory rights of participation under the 1998 Act. On the other hand, Dr Hart's apparent rights to participate fully as a respondent to the appeal in the High Court may have been overlooked when he was granted status as an intervenor. [15] In that context, the question whether Dr Hart should be regarded as being a "party to an appeal before the High Court" for the purposes of s 166(1) of the 1998 Act is far from clear. When we raised this point with Ms Garvey she indicated that she had sought to have the original judgment allowing the appeal by Mr Ambros amended as to its description of Dr Hart as an intervenor but that she had been told by the Court (presumably Harrison J) that there was not a problem with Dr Hart's status. No formal order recalling or amending the judgment appears to have been made. On the other hand, in his judgment dismissing Dr Hart's application, Harrison J did not refer to the status difficulties to which we have adverted. [16] On the basis of the material presently before us, it is not possible to resolve the status issue. So if we were to grant leave to appeal it would have to be on a basis which reserved to Mr Ambros the right to challenge Dr Hart's status as a party.Why leave to appeal was refused in the High Court[17] In his June 2005 judgment, Harrison J was critical of the way in which counsel for Dr Hart had set out to obtain leave to appeal. The following passages of the judgment are relevant:[4] On 15 April 2005 Dr Hart filed an application for leave to appeal against our judgment. The application was, with respect, unsatisfactory and on 27 April he filed an amended application. In the meantime, on 18 April, ACC filed a separate application for leave to appeal. [5] I have convened two hearings for the purposes of attempting to define a question or questions of law for submission to the Court of Appeal. I acknowledge Mr Ambros' complaint that I have accorded Ms Catherine Garvey, Dr Hart's counsel, three opportunities to satisfy the statutory requirements. I understand his frustration, but I recognise that a question on causation identified by Mr Dane Tuiqereqere, counsel for ACC, arising from our judgment is appropriate for determination by the Court of Appeal, and I was anxious to ensure that the Court is not burdened by a multiplicity of questions, many of a factual nature, when the appeal is heard. [7] While all counsel addressed me on the existence or otherwise of a question of law, none of them took the threshold step of formulating a case stated for consideration. The procedure is quite different from the more orthodox right to appeal on a question of law of general or public significance. Ms Garvey attempted to identify a number of questions of law which on analysis amounted to a comprehensive challenge to every one of our factual findings. The statute does not allow for that approach. The right is not one of general appeal but is confined to a question of law arising out of a self-contained statement of essential facts. A case should only be stated where the point of law which arises is, first, clearly necessary for the decision and, second, likely to be decisive one way or the other (Police v O'Neill [1991] 3 NZLR 593, Tipping J).[18] Harrison J was not prepared to grant Dr Hart leave to appeal even on the causation issue in respect of which leave to appeal was granted to the Corporation:[12] I should add that we granted leave both to Dr Hart and the WDHB to intervene because of their direct interest in issues arising on the appeal. As noted, Dr Hart filed a separate application for leave and the WDHB submitted a synopsis in support. However, now that the terms of the case have been settled, and the discrete question of law for the Court of Appeal's determination has been identified, I am satisfied that neither of those parties has retained an interest in the appeal sufficient to justify their continued appearances. The question is one for the ACC to argue, given its interest in resisting a claim for cover as medical misadventure.An overview of the proposed appeal[19] Dr Hart's fundamental complaint is that the High Court decision as to medical error was simply wrong. This complaint flowed through into the arguments which his counsel wished to advance. In the course of the hearing before us, Ms Garvey came back, repeatedly, to what was, in substance, a challenge to the factual findings made by the High Court Judges. We suspect that her arguments before Harrison J on the leave application which were the subject of the comments in [7] of his judgment (see [17] above) were broadly similar. [20] We have sympathy for Dr Hart's situation. The High Court judgment was undoubtedly bold and might perhaps be regarded as surprising (given that there was no expert evidence to the effect that Dr Hart had been negligent). As well the process prior to the High Court appeal was relatively unstructured with the result that the report writers and Dr Hart in his evidence did not closely focus on the aspects of Dr Hart's care which concerned the High Court Judges. That said, the reality is that the factual issues associated with the accident compensation claim made by Mr Ambros has now been reviewed on four occasions, first by the Corporation, secondly on review, thirdly by Judge Beattie and fourthly in the High Court. The legislative scheme provided for by the 1998 Act does not contemplate a further (and now fifth) detailed review of the facts in this Court.The questions of law proposed by Dr Hart[21] In written submission to this Court, counsel for Dr Hart suggested that the following questions ought appropriately be the subject of a grant of leave:(a) Did the Court have any evidence to find that there was a "medical error" on the part of Dr Hart? (b) Was the Court correct to conclude that there is a different test for "medical error" caused by acts of omission? (c) If the answer to (a) is yes, did the Court require proof that the "medical error" was causative of the personal injury (death)?(d) If the answer to (c) is yes, does the claimant bear the onus of proof? (e) If the answer to (d) is yes, was there evidence on which the Court could find the "medical error" was causative of personal injury (death)? (f) Was the Court correct to substitute its own views as to the appropriate standard of care?[22] Grounds (c), (d) and (e) essentially relate to the causation issue in respect of which leave to appeal has already been granted to the Corporation. In relation to those grounds the only issue is whether Dr Hart ought also to be granted leave to appeal. That leaves in play questions (a), (b) and (f). They, in turn, and as amplified in the course of argument before us, seem to raise three further questions: first, whether the High Court was right to conclude that Judge Beattie had erred in law; secondly if so, was it open to the High Court to determine the factual issue itself; and thirdly whether the High Court's conclusion as to medical error was legally erroneous.The causation issue[23] The causation issue raises an issue of law for which the Corporation has been granted leave to appeal. [24] The question for this Court will be whether the enhancement of risk associated with the lack of monitoring was sufficient to justify the conclusion as to causation reached by the High Court. What the outcome for Mrs Ambros would have been had she been monitored turns necessarily on a hypthothetical question; this because she was not monitored. The causation issue posed by the case is thus both legal and abstract. [25] If Dr Hart is to be held to have been guilty of medical error, he would naturally prefer the ultimate finding of the Courts to be that such error was harmless and neither caused nor contributed to the death of Mrs Ambros. On the other hand, if the conclusion that Dr Hart was guilty of medical error itself stands (with the associated corollary that Mrs Ambros was placed at inappropriate risk) a conclusionagainst Mr Ambros on the causation issue would have only limited reputational consequences for Dr Hart.Whether the High Court was right to conclude that Judge Beattie had erred in law[26] In their judgment, Harrison and Heath JJ reviewed very carefully the decision of Judge Beattie and the evidence upon which it was based. They concluded that his approach was in error in three respects:(a) In failing to determine what, objectively speaking, was the standard of care to be expected of Dr Hart (both in diagnosis and treatment) in the circumstances following Mrs Ambros' admission to North Shore Hospital on 14 July 2000. (b) In finding, without a sufficient evidentiary basis, that Dr Hart was not negligent because the standard of treatment throughout was commensurate with Dr Hart's assessment of Mrs Ambros' risk. (c) In placing erroneous and undue weight upon the reports of four cardiologists, one of whom was also employed by the Waitemata District Health Board, which were not based on common primary facts and did not address the issues relevant to the statutory test. The errors led the District Court Judge wrongly to dismiss Mr Ambros' appeal. Further, the errors set out in (b) and (c) above justify reappraisal of the facts: see Edwards (Inspector of Taxes v Bairstow [1956] AC 14 (HL) at 27 (Viscount Simonds) and 37 (Lord Radcliffe).[27] Because the High Court's jurisdiction depended on Judge Beattie's decision being wrong in law, the decision that he had "wrongly" dismissed the appeal by Mr Ambros necessarily involves a question of law which is susceptible to review in this Court. In the course of argument, however, Ms Garvey did not seek to identify any misstatement of the law in the High Court judgment. Indeed, she appeared to accept that the statements of law that appear in the High Court judgment are accurate. On this aspect of the case, as with all others, she reverted to the proposition that the Judges' findings as to negligence were wrong.Was it open to the High Court to determine the factual issue itself once it concluded that Judge Beattie's decision was erroneous in law?[28] When pressed on this point Ms Garvey accepted that it was legally open to the High Court to decide the case on the facts if it had correctly concluded that Judge Beattie's decision was wrong in law. So her contention that the High Court ought to have remitted the case to the District Court for determination in the end came back to the proposition that the available evidence did not support a finding of negligence.The conclusion that Dr Hart was negligent[29] The proposed grounds of appeal include reference to a distinction drawn by the High Court between negligence by omission and commission. In the context of the judgment as a whole, that distinction was primarily of factual significance, in the sense of providing a methodology or framework for evaluating the evidence, and as such, seems unexceptionable. [30] On this aspect of the case generally, the arguments which Dr Hart wishes to present are very factual. There was a mass of evidence before the High Court which received apparently careful evaluation. The real complaint is that the High Court reached the wrong result as a result of either misinterpretation or overlooking of aspects of the evidence but that is a complaint which cannot properly be investigated on an appeal confined to points of law.Overall evaluation[31] As we have indicated, we have some sympathy for Dr Hart's position. But as also indicated, this Court's role is not to provide a further forum for the re-evaluation of factual findings. [32] We are not able to discern a genuine question of law raised by Dr Hart in relation to the question that he was negligent.[33] We are satisfied that it was open to the High Court to address whether or not Dr Hart was negligent, if it had correctly concluded that Judge Beattie's decision was wrong in law. Indeed, in the end, Ms Garvey accepted that this was so. [34] We accept that the conclusion on the part of the High Court (that Judge Beattie's decision was wrong in law) necessarily involves a question of law which could have been a candidate for appeal. That said, Ms Garvey's proposed arguments in relation to this aspect of the High Court judgment, as they emerged in the hearing before us, were very factual. We do not see such arguments as appropriate for a grant of leave. [35] That leaves the causation issue in respect of which Harrison J has already granted leave to appeal to the Corporation and has, helpfully, in his judgment of 3 June this year, identified the question of law which arises. We have considered carefully whether we ought to grant Dr Hart leave to appeal in relation to the causation issue. We decline to do so for the following reasons: (a) Dr Hart's primary concern must be in relation to the finding of medical error that has been made against him. If, as we hold, that conclusion is not open to appeal in this Court, the benefit to him of participating in the legal argument as to causation is restricted. We say this because the causation question raises an abstract question of law the answer to which, either way, will have only limited moral resonance for him. (b) If leave to appeal were granted, this would have to be on terms which left it open to Mr Ambros to challenge Dr Hart's status. We see this as likely to involve further distraction and expense in terms of what is now a comparatively limited issue between Mr Ambros and the Corporation.Result[36] Accordingly the application for leave to appeal is dismissed.[37] Mr Gray's position as to costs will be dealt with administratively and we need not address it in this judgment. Mr Ambros was not legally represented but he is entitled to an order as to his disbursements which, if the parties cannot agree, will be fixed by the Registrar.Solicitors: N K Fisher, Auckland for Applicant M J Mercier, Wellington for First Respondent