ADLAM v ACC [2016] NZHC 1967

ADLAM v ACC [2016] NZHC 1967 [23 August 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2016-485-000017[2016] NZHC 1967BETWEEN JEREMY CAMERON ADLAMApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentSubmissions: Memorandum of Submissions from Applicantdated 5 August 2016Memorandum of Submissions from Respondentdated 10 August 2016Memorandum of Submissions from Applicantdated 19 August 2016Counsel: H G de Groot for ApplicantA S Butler and O J Bouchier for RespondentJudgment: 23 August 2016JUDGMENT OF GENDALL J(Dealt with on the papers)Introduction[1] This is a decision relating to an application filed on 18 July 2016 by the applicant Jeremy Cameron Adlam (Jeremy) for leave to appeal to the Court of Appeal against a decision I gave in this Court on 1 July 2016, ACC v Adlam1 which, despite his opposition, granted an appeal lodged by the Accident Compensation Corporation (ACC) from a District Court decision.[2] Counsel for the parties have requested that this decision is one made on the papers. Counsel for Jeremy has filed a Memorandum of Submissions in support of the application dated 5 August 2016. Counsel for the respondent Accident1 ACC v Adlam [2016] NZHC 2487].Compensation Corporation has filed a Memorandum of Submissions in opposition dated 10 August 2016 and counsel for Jeremy has filed submissions in reply dated 19 August 2016. I have now had an opportunity to consider these submissions and give this decision on the basis of the material filed.Background[3] Jeremy, who is now aged 16, suffered hypoxia immediately prior to his birth which occurred by way of emergency caesarean. This later manifested as severe cerebral palsy. The respondent ACC declined cover under the relevant Accident Compensation legislation for a treatment injury on 6 June 2006.[4] ACC's decision was then the subject of a review which upheld this decisionon 6 September 2011. Jeremy then appealed against the reviewer's decision and on10 August 2015 Judge MacLean in the District Court allowed his appeal against that decision. Essentially, Judge MacLean in his decision applied a hindsight analysis tothe question of whether earlier intervention by Jeremy's treatment providers wouldhave improved the outcome and held that there was a treatment injury for which cover was available.[5] In my decision in this Court dated 1 July 2016 I overturned the District Court decision. In doing so, at para [64] of that decision I answered the following questions of law in the negative:(a) Can a "failure to treat" occur in circumstances where there are noobservable indications for a different treatment course?(b) Does a treatment injury occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a different result?[6] In filing his application for leave to appeal my decision, Jeremy set out the following suggested questions of law for consideration by the Court of Appeal:(a) Was the High Court correct to find that a "failure to treat" cannotoccur in circumstances where there are no indications for a different treatment course?(b) Was the High Court correct to find that a treatment injury does not occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result?(c) Was the High Court correct to find that "some form of responsibilityfor either a failure to provide treatment or the provision of treatment must be established on the balance of probabilities in order for aclaimant to receive cover"?(d) Was the High Court correct to find that "determining whether aparticular treatment is clinically indicated necessarily requires consideration of the alternative option or options available to the health professional, given the state of knowledge at the time, and whether there were contra indications telling against those alternatives?[7] The present application for leave to appeal is opposed by ACC.Jurisdiction to grant the application[8] The present application is brought pursuant to s 163(1) of the Accident Compensation Act 2001 (the Act). Appeals are allowed only with the leave of the High Court (or the Court of Appeal if leave is declined) and only on a question of law. Section 163 provides:163 Appeal to Court of Appeal on question of law(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.(2) If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.(3) An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.(4) The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.[9] Principles relevant to the grant of leave under s 163 of the Act were outlined by Randerson J in Knight v Accident Compensation Corporation:2The 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 a further appeal. That must be treated with this qualification, however, that s 163 is confined to questions of law only and the appeal is to be by way of case stated for the opinion of the Court of Appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.[10] A primary focus must be on whether the question of law is worthy of consideration – Robertson v Accident Compensation Corporation3 and Cullen v Accident Compensation Corporation.4[11] The threshold for leave to appeal was also addressed in Accident Compensation Corporation v Hawke5 where Brewer J said at [24]:[24] I have to bear in mind that I am not deciding the issues upon which the appellant wishes to appeal – notwithstanding that they have largely been argued before me. My task is to determine whether there is an issue of law which crosses the threshold of arguability to which I earlier referred, and which has appropriate significance.[12] And on this question of the need for the issue of law to be significant, Williams J in Van Helmond v Accident Compensation Corporation6 said:[13] but regard must also be had to wider considerations including thegeneral importance of the questions raised, and whether the interests of justice might be served by allowing the appeal to proceed. Although the classes of consideration are clearly not closed, it will usually be necessary2 Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].3 Robertson v Accident Compensation Corporation [2015] NZHC 2489 at [27].4 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].5 Accident Compensation Corporation v Hawke [2013] NZHC 2982.6 Van Helmond v Accident Compensation Corporation [2014] NZHC 2750.for the prospective appellant that there is an issue of principle at stake, or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success.Grounds of appeal[13] In his application for leave to appeal Jeremy set out the following specific grounds to justify the leave sought:1. The questions of law identified are questions of law true.2. There are sensible and bona fide arguments that a different approach to the interpretation of s 33(1)(d) ought to be adopted.3. There are sensible and bona fide arguments available that the interpretation adopted by the High Court reintroduces a fault criterion into cover determination when the Parliament intended that"treatment injury" was to be a fault-less cover regime.4. There are sensible and bona fide arguments available that the interpretation adopted by the High Court does not sufficiently clarify what primary facts need to be established before a claimant is entitled to cover.5. The applicant has suffered extremely serious injuries from which he will never recover. In the absence of cover, he will have significantly limited access to therapeutic and rehabilitative opportunities. There is an important justice interest personal to the applicant which ought to be vindicated by way of remit to the Court of Appeal.6. This case will become the governing authority for treatment injury claims brought under s 33(1)(d) of the Act. It is also likely that the Corporation will seek to abstract the principles laid down in this case to claims brought under other subsections of section 33. There is a general justice interest in having the law clarified by way of remit.[14] In response, the ACC in its Notice of Opposition to this leave application filed 21 July 2016, set out its grounds of opposition as follows:(a) This matter does not give rise to a bona fide question of law.(b) This matter does not give rise to a question of law capable of serious argument.(c) It is consistent with the principles of finality of litigation to decline this application.(d) It is in the interests of justice to decline the application.Discussion and my decision[15] In my view this application is quickly disposed of. There can be no doubt that questions of law arise from my High Court judgment. Certain comments in the judgment are usefully repeated here:(a) "[1] This appeal concerns the proper interpretation of the treatmentinjury provisions of the Accident Compensation Act 2001In light of thepolicy behind legislative amendments that created that regime in 2005"(b) "[27] At the outset however, I need to say quite clearly that despite what seems to be the apparent purpose of the 2005 Amendment, in my view a reasonably strong argument exists that Parliament here has failed to properly clarify and address first, the real effects of a no-fault regime for treatment injury and secondly, what should be the appropriate division for ACC cover purposes between accidents that are covered and illnesses that are not. This is a predominant issue on this appeal along with another dilemma. This is the question that has been argued over whether, on the one hand, since the 2005 Amendment has been in force, the ACC and the Courts are not required to find medical negligence of the registered health practitioner before cover is available, but on the other hand, case law so far seems to have generally suggested that for cover to be available, there must be a finding of observable indications whereby a physician should have acted in an alternative manner which has resulted in the treatment failure."(c) "[41] There is, as I see it, to an extent, some merit in both submissions advanced before me and this case illustrates what is a potential difficulty or uncertainty with the current treatment injury provisions. The dividing line between cover and no cover in this area has always been a fine one. As I have noted above, the 2005 Amendment was introduced it is suggested intending to remove the requirement to find medical negligence before a claimant could be covered for medical injury. However, it appears that questions have been raised as to whether the desired effect of what waslikely to be Parliament's intent has not come to fruition entirely, due to thefundamental dividing line between treatment injuries which are covered and illnesses which generally are not covered."(d) "[50] Some Parliamentary clarification may well be required to reconcile the Parliamentary intent of the 2005 Amendment with the effect it has on the fundamental division between accident and illness."[16] The questions of law here clearly involve issues of statutory interpretation It is also not insignificant, as I see the position in considering the present application, that it was ACC who sought the leave of the District Court to appeal the decision of that Court on the basis that there were justiciable questions of law at issue.[17] Here, it is important in determining the application for leave that I am not drawn into an arbitration of the substantive dispute between the parties, but I must focus on whether the issues cross the threshold of arguability, as Brewer J noted inACC v Hawke. In my view that threshold is met here.[18] In addition, I need to mention at this point, given the tragic circumstances that arose in this case (a case which can only be seen as a particularly serious one), and the considerable amounts that are at stake, that there is also an important justice interest personal to Jeremy as well as an issue of general public importance over the proper approach to be taken to treatment injury cases and the position of the Courts in providing a governing authority for these.Conclusion[19] For all these reasons I am satisfied first, that the questions raised here are questions of law and they do cross the threshold of arguability, and secondly, that there are important private and public justice interests involved, such that leave to appeal should be granted in this case.[20] At this point I note too that little objection was taken by ACC to the form proposed for the questions of law to be considered on appeal as outlined at para [6] above. Those questions, in my view, are appropriate for consideration on this appeal.[21] Accordingly, I grant leave to appeal to the Court of Appeal my decision of 1 July 2016 on the following questions of law:(a) Was the High Court correct to find that a "failure to treat" cannotoccur in circumstances where there are no indications for a different treatment course?(b) Was the High Court correct to find that a treatment injury does not occur where, with the benefit of objective hindsight, a different course of treatment could have yielded a better result?(c) Was the High Court correct to find that "some form of responsibilityfor either a failure to provide treatment or the provision of treatment must be established on the balance of probabilities in order for aclaimant to receive cover"?(d) Was the High Court correct to find that "determining whether a particular treatment is clinically indicated necessarily requires consideration of the alternative option or options available to the health professional, given the state of knowledge at the time, and whether there were contra indications telling against those alternatives?[22] There will be no order as to costs....................................................Gendall JSolicitors:John Miller Law, WellingtonRussell McVeagh, Wellington