DELA ROSA v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2657

DELA ROSA v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2657 [17 October 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-404[2019] NZHC 2657UNDER the Accident Compensation Act 2001IN THE MATTER of an application for special leave to appealunder s 162(3) of the ActBETWEEN JOANNA DELA ROSAApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 16 October 2019Appearances: B J Peck and E M Bransgrove for the ApplicantE J Rushbrook and N J Fenton for the RespondentJudgment: 17 October 2019JUDGMENT OF DOOGUE J(Special leave to appeal)Introduction[1] Jia Dela Rosa was delivered by emergency caesarean section at 3:24 am on20 August 2013. She is the first-born child of Joanna Dela Rosa, the applicant in theseproceedings.[2] Due to various concerns held by medical professionals at National Women'sHealth Hospital (Hospital), Mrs Dela Rosa was administered with prostaglandin gelin order to induce her labour. During the subsequent birthing process, Jia sufferedprolonged bradycardia (a slower-than-expected heart rate) which resulted in Hypoxic-Ischemic Encephalopathy (HIE), injury to the brain due to a reduced supply of bloodand oxygen. Jia's injury has gone on to manifest as cerebral palsy and she will requirelife-long care.[3] This is an application for special leave1 to appeal from a decision ofJudge J H Walker, allowing an appeal by the Accident Compensation Corporation (theCorporation) resulting in cover under the Accident Compensation Act 2001 (the Act)being declined for Jia's injury.2[4] The issue before the District Court was whether Jia's HIE was covered by theAct's treatment injury regime as a personal injury caused either by:(a) the giving of treatment (being the administration of the prostaglandingel); or(b) a failure to provide treatment (being a failure to either deliver Jia on anearlier date or at an earlier time on the same date).[5] Leave to appeal was declined by Judge G M Harrison on 4 July 2019 on thebasis the proposed appeal advanced no question of law warranting consideration bythis Court.3[6] Special leave to appeal is now sought on the following questions of law (theLeave Questions):(a) Was the law in respect of causation under s 33(1)(a) of the Act correctlyapplied?(b) Was the law in respect of causation under s 33(1)(d) of the Act correctlyapplied?1 Accident Compensation Act 2001, s 162(3).2 Dela Rosa v Accident Compensation Corporation [2018] NZACC 195 [Substantive Decision].3 Dela Rosa v Accident Compensation Corporation [2019] NZACC 73 [Leave Decision].(c) Did Judge Walker err in failing to give adequate reasons for preferringthe evidence of a particular medical expert over Mrs Dela Rosa'sevidence?[7] For the reasons that follow, special leave to appeal is not granted.Factual background[8] The background to these proceedings was set out by Judge Walker in herdecision of 19 December 2018.4 However, the parties have filed an agreed chronologyfor the purposes of these proceedings, which I set out below.[9] Mrs Dela Rosa is of Filipino ethnicity and was 26 years old when Jia was born.On the Auckland District Health Board booking form/antenatal record (ADHB form),Mrs Dela Rosa's height was recorded as 153cm and her weight as 74kg (which equatedto a body-mass index (BMI) of 31.6). However, on the customised antenatal growthchart used by the Hospital, Mrs Dela Rosa's height and weight were recorded as157cm and 64kg (equating to a BMI of 25.96) respectively.[10] Mrs Dela Rosa's estimated delivery date (EDD) was recorded on the ADHBform as 6 August 2013 based on her regular menstrual cycle and her last menstrualperiod, of which she was sure.[11] On 20 March 2013, Mrs Dela Rosa underwent an ultrasound scan whichreported gestational growth consistent with an EDD of 6 August 2013. Liquor volume(the volume of amniotic fluid present) was also normal. A follow up ultrasound scanwas performed on 8 April 2013, which confirmed an EDD of 6 August 2013 based onfoetal anatomy.[12] Despite this, an "agreed EDD" of 10 August 2013 was subsequently recordedon the ADHB form.4 Substantive Decision, above n 2, at [5]–[35].[13] On 5 August 2013, a routine growth scan reported a low liquor volume of 2cmin depth. Normal interval growth was recorded and the Biophysical Profile Score(BPP) was 8/8. As a result of this scan, a referral was sent that same day to theAntenatal Clinic at the Women's Assessment Unit of the Hospital for consultantreview. It was requested that Mrs Dela Rosa be reviewed in respect of her reducedliquor volume. Increased weight gain was also noted.[14] On 6 August 2013, a Dr Wise reviewed the referral and determined that noassessment was necessary. She was "happy" for Mrs Dela Rosa to be reviewed at fullterm. An appointment was arranged for the next available date, which was 13 August2013. Two days later, on 8 August 2013, Mrs Dela Rosa's weight was recorded as86.5kg.[15] On 13 August 2013 (now at 40 weeks and three days), Mrs Dela Rosa was seenby a Dr Walker at the Day Assessment Unit (DAU) of the Hospital. Based on a clinicalexamination, Dr Walker recorded clinically adequate liquor volumes and good foetalgrowth. A cardiotocograph (CTG) was performed and considered normal. Dr Walkernoted there were no induction booking vacancies until 20 August 2013. He thereforearranged for Mrs Dela Rosa to be seen at the DAU on 16 August 2013 for a formalscan and clinical review.[16] On 16 August 2013 (at 40 weeks and six days), Mrs Dela Rosa was seen at theDAU by a Dr Baird who found no reason for induction. A CTG and an ultrasoundscan were performed. The CTG was normal. The ultrasound scan recorded an activefoetus, a BPP of 8/8, a normal umbilical artery Doppler (a measure of foetal well-being) and two measurable pockets of liquor measuring 2.3cm and 1.9cm respectively.No growth measurements were taken of the foetus.[17] On 19 August 2013 (at 41 weeks and two days), an assessment ofMrs Dela Rosa was carried out by a Dr Haddad at the DAU. Dr Haddad recordedthere were no measurable pockets of liquor and therefore her BPP fell to 6/8. Inductionwas booked for that evening.[18] The following sequence of events then occurred, beginning on the evening of19 August 2013:(a) At 8:30 pm, Mrs Dela Rosa was admitted for induction.(b) At 9:15 pm, CTG recording commenced. A vaginal examinationshowed that Mrs Dela Rosa's cervix was "unfavourable" with aBishop's score of two (out of 10). As a result of the Bishop's score,2 mg of prostaglandin gel was administered vaginally with Mrs DelaRosa's consent. Prostaglandin gel is used to induce labour.(c) At 10:15 pm, a CTG conducted after the administration of theprostaglandin gel was recorded by the attending midwife as normal andwas continued.(d) A CTG recorded at 11:50 pm showed periods of low variability(referring to the variation of foetal heart rate from one beat to the next).(e) At 12:55 am on 20 August 2019, a note was made that Mrs Dela Rosafelt foetal movements but that they were reduced in number. She wasexperiencing cramping pains, but no tightening was palpable.(f) At 1:00 am, the CTG was recommenced.(g) At 1:40 am, the registrar was asked to review the CTG due to thereduced variability.(h) The registrar reviewed Mrs Dela Rosa at 1:45 am. An intravenous linewas set up and intravenous fluids were administered to Mrs Dela Rosa.(i) At 2:20 am, a small amount of moderate meconium stained liquor wasnoted on Mrs Dela Rosa's gown. The CTG continued. Mrs Dela Rosasubsequently felt a small "pop" and a trickle. It was noted she suffereda spontaneous rupture of membranes (SROM).(j) At 2:40 am, a "pink spot on pad" and further trickling were noted.Mrs Dela Rosa also felt some tightening when palpitated. The CTGcontinued.(k) At 3:01 am, the foetal heart rate dropped to less than 60 beats perminute within three minutes and failed to recover.(l) The registrar was called at 3:10 am and arrived in the room at 3:12 am.(m) Mrs Dela Rosa was transferred to theatre at 3:18 am.(n) Jia was delivered by emergency caesarean section at 3:24 am. Therewas no evidence of abruption during the caesarean section and nocomment was noted in respect of the position of the umbilical cord.However, thick meconium was present.[19] Jia was delivered in very poor condition with an "Apgar score"5 of one (out offive) at one minute, and zero at five minutes. Jia required active resuscitation, onlyregaining a pulse at 13 minutes of age and taking her first gasp at 17 minutes of age.She was treated with head cooling for the HIE at 1.5 hours of age, which continuedfor 72 hours.[20] A placental pathology performed later in the day on 20 August 2013 recordedthat the placenta contained a large infarct (tissue death due to inadequate blood supply)and was below the third percentile in weight. The umbilical cord was noted to behyper-coiled with a spiral approximately every 10mm.[21] Magnetic resonance imaging (MRI) scans at two weeks of age showedevidence of moderate HIE.5 Apgar is a test performed on a baby at one and five minutes after birth. The one-minute scoredetermines how well the baby tolerated the birthing process, while the five-minute score indicateshow well the baby is doing outside the mother's womb.The claim[22] On 13 September 2013, a representative of the Hospital lodged, on Jia's behalf,a treatment injury claim with the Corporation.[23] The Corporation declined Jia's claim on 14 January 2014. On review, theCorporation's decision was quashed and substituted with a decision that Jia's injuryamounted to a treatment injury for the purposes of s 32 the Act.[24] The Corporation appealed the reviewer's decision.District Court substantive decision[25] Judge Walker outlined in extensive detail the contents of reports prepared bysix medical experts, three of which were obtained prior to, and three following, theCorporation's decision to decline cover for Jia's injury.6[26] The reports obtained prior to the Corporation's decision to decline cover forJia's injury were reviewed in the following order:(a) the Corporation's Treatment Injury Claim form, dated 25 September2013 and filled out by Eliza Cloete, Occupational NeonatologistNewborn Services, which outlined the bare facts of the injury and theevents leading up to it;(b) the report of Dr Suzanne Davis, a Paediatric Neurologist employed asa Senior Medical Officer at the ADHB, dated 30 December 2013, inwhich she provided her opinion in respect of the risk of the injurysuffered by Jia occurring;(c) the first report of Dr Digby Ngan Kee, Obstetrician, Gynaecologist andEndoscopic Surgeon, dated 8 December 2013, in which he provided hisopinion on the adequacy of the treatment provided to Mrs Dela Rosaand whether alternative treatments were available; and6 Substantive Decision, above n 2, at [54]–[121].(d) the second report of Dr Ngan Kee, dated 15 January 2014, in which heanswered further questions in respect of the adequacy of the treatmentprovided to Mrs Dela Rosa.[27] The reports obtained following the Corporation's decision to decline cover forJia's injury were reviewed in the following order:(a) the first report of Associate Professor Jenny Westgate, HonoraryAssociate Professor in Obstetrics and Gynaecology at the University ofAuckland, dated 28 April 2016;(b) the report of Professor Peter Stone, Professor of Maternal FetalMedicine at the University of Auckland, dated 22 November 2016, withan addendum, dated 1 February 2017;(c) the second report of Associate Professor Westgate, dated 28 April 2017,answering specific questions put to her by counsel including questionsrelating to Professor's Stone's opinion as provided in his report;(d) the report of Dr Tony Baird, a doctor at Auckland Urogynaecology,dated 20 September 2017 with an addendum, dated 5 October 2017, inwhich he provided his opinion on the cause of Jia's sudden bradycardiaand responded to aspects of Professor Stone's and Associate ProfessorWestgate's reports;(e) the third report of Associate Professor Westgate, dated 18 October2017, in which she primarily responded to Dr Baird's report; and(f) an email response from Dr Baird, dated 27 October 2017, brieflyresponding to Associate Professor Westgate's third report.[28] Throughout this extensive review of the medical reports and opinions, theJudge highlighted points of conflict between the medical experts, albeit not in anoverly discursive way. For example, the Judge expressly quoted excerpts fromProfessor Stone's report demonstrating an opposing view to those of Dr Ngan Kee andAssociate Professor Westgate in respect of the ability of the medical experts whodelivered Jia to have intervened sooner.7 Similarly, the Judge outlined in some detailAssociate Professor Westgate's two follow-up reports which effectively responded tothe reports of Professor Stone8 and Dr Baird,9 both of whom commented on AssociateProfessor Westgate's views on the likely impact of the prostaglandin gel on thelabouring process and whether the medical experts at the time ought to have deliveredJia sooner.[29] Overall, the Judge preferred the evidence of Associate Professor Westgate.10[30] Accordingly, in concluding that the administration of prostaglandin gel did notcause (as that term is understood in s 32(1)(b) of the Act) Jia's injury, the Judge madethe following findings:(a) it was necessary to administer prostaglandin gel in order to induce thenatural labour process;11(b) the prostaglandin gel did not cause uterine hyperstimulation;12(c) the labour process caused Jia's injury (specifically, the onset ofcontractions and SROM);13 and(d) it is likely Jia's injury would have occurred had there been aspontaneous onset of labour.14[31] Further, in concluding that Jia's injury did not result from a failure to providetreatment (in terms of s 33(1)(d) of the Act), the Judge made the following findings:7 At [71]–[72].8 At [74]–[94].9 At [109]–[120].10 At [243].11 At [221]–[222].12 At [223].13 At [223]–[224].14 At [218] and [234].(a) there was "no reliable evidence" of any indications that Jia should havebeen delivered on an earlier date; and15(b) there was no evidence that indicated, in respect of events that proceededpost-induction on 19 August 2013, that any alternative procedureshould have occurred.16[32] Given the medical evidence, the Judge concluded:[235] I accept the submissions of Counsel for the appellant that unders 33(2)(g) of the Act, an injury can only be a treatment injury, if it isdemonstrated on the balance of probabilities it was not caused wholly orsubstantially by her underlying condition.[236] The fact that the umbilical cord was hypercoiled rendered hersusceptible to sudden cord occlusion during labour and it is noted in thePaediatric Pathologist's report it is often associated with adverse outcomes.District Court leave decision[33] Mrs Dela Rosa sought leave to appeal to this Court on eight questions of law,which were set out under the same Leave Questions that have been advanced beforeme. That application was declined by Judge Harrison on 4 July 2019, who determinedthat the application did not in fact raise any question of law.17[34] In particular, the Judge found the following:(a) Whether the administration of a drug causes an injury is a question offact. Judge Walker relied on the evidence of Associate ProfessorWestgate to conclude that the administration of the prostaglandin geldid not cause Jia's injury.18(a) Whether there is a failure to provide treatment or to provide treatmentin a timely manner is also a question of fact. Again, after assessing the15 At [182].16 At [201].17 Leave Decision, above n 3, at [9].18 At [15].medical evidence, Judge Walker determined that there was no failure toprovide treatment.19(b) Judge Walker took great care to give reasons for preferring AssociateProfessor Westgate's evidence. Accordingly, no question of law arosein that regard.20The proposed questions of law[35] As already mentioned, Mrs Dela Rosa sought leave to appeal in the DistrictCourt on eight questions of law, which were succinctly summarised as the three LeaveQuestions. Both the Leave Questions and the sub-questions are now advanced beforethis Court. For ease of reference, the Leave Questions and sub-questions are thefollowing:(a) Was the law in respect of causation under s 33(1)(a) of the Act correctlyapplied?(i) Was Judge Walker's decision consistent with the expertevidence available?(ii) Did Judge Walker err by referring to the absence of alternativesfor progressing labour?(iii) Did Judge Walker err by finding Jia's injury would haveoccurred regardless of the method of delivery?(b) Was the law in respect of causation under s 33(1)(d) of the Act correctlyapplied?(i) Did Judge Walker apply the wrong standard to the treatmentfailure analysis?19 At [18].20 At [20].(ii) Did Judge Walker err by relying on evidence that madereference to resource constraints?(iii) Did Judge Walker err by relying on evidence that failed to lookat the totality of the treatment?(iv) Did Judge Walker err by failing to rely on evidence onlyavailable with the benefit of hindsight?(c) Did Judge Walker err in failing to give adequate reasons for preferringthe evidence of a particular medical expert over the others?[36] Put simply, Ms Rushbrook, for the Corporation, submits that none of thequestions of law proposed by Mrs Dela Rosa are seriously arguable. Further, shesubmits that the proposed questions are either answered by settled legal principles orare issues of fact dressed up as issues of law.[37] As will become clear, it is not necessary to address each of the sub-questionsin depth. Therefore, my analysis will primarily focus on the Leave Questions.Principles applicable to applications for special leave[38] The scope of applications for special leave to appeal brought under s 162(3) ofthe Act is confined to questions of law. The proper test for applications of this naturewas set out by Dobson J in Ellwood v Accident Compensation Corporation:21An applicant for special leave is required to establish that there is a questionof law that is capable of bona fide and serious argument, and that it arises in acase which involves some public or private interest of sufficient importanceto outweigh the delay and cost of a further appeal. It will usually be necessaryfor an applicant to show that there is an issue of principle at stake or that aconsiderable amount hinges on the decision, and that there are somereasonable prospects of success.21 Ellwood v Accident Compensation Corporation [2012] NZHC 2887 at [10].[39] Broken down, Ellwood establishes five criteria for applications for specialleave to appeal:22(a) the question posed is one of law;(b) it is a question actually arising in the proceeding (as opposed to beinghypothetical or abstract);(c) it is capable of bona fide and serious argument;(d) it involves some interest, public or private, of sufficient importance tooutweigh the delay and cost of a further appeal; and(e) there are some reasonable prospects of success.[40] In addition, the interests of justice should require that leave be granted.23[41] The present case invokes (a) and (c) above. In Gilmore v AccidentCompensation Corporation, Dunningham J provided the following guidance on howto approach an application of this nature:24[28] Section 162 makes it clear that an appeal is only allowed on a questionof law. A question of law does not arise where the Court has merely appliedlaw, which it has correctly understood, to the facts of an individual case.Provided that the Court has not overlooked any relevant matter or takenaccount of some matter which is irrelevant to the proper application of the law,the conclusion is a matter for the fact finding Court unless clearlyunsupportable. Whether or not a statutory provision has been properlyconstrued or interpreted and applied to the facts is a question of law. However,issues of fact should not be dressed up as questions of law. That said, a mixedquestion of law and fact is a matter of law.22 See generally Murray v Accident Compensation Corporation [2013] NZHC 2967 at [6] whereKós J (as he then was) outlined the first four criteria, though still noted that there must be somereasonable prospect of success.23 Accident Compensation Corporation v Ng [2019] NZHC 207 at [8]; Sinclair v AccidentCompensation Corporation [2012] NZHC 2564 at [7]; Gilmore v Accident CompensationCorporation [2016] NZHC 1594 at [27](c); Avery v No. 2 Public Service Appeal Board [1973] 2NZLR 86 (CA).24 Gilmore v Accident Compensation Corporation, above n 23.[42] Further, in determining whether special leave to appeal should be granted, it isnot my role to determine the substantive issues upon which Mrs Dela Rosa wishes toappeal.25 Rather, I must focus on whether the issues raised are, first, questions of law,and second, cross the threshold of being capable of bona fide and serious argument.Statutory framework[43] The combination of s 20(1) and 20(2)(b) of the Act provides cover for physicalinjury that is "treatment injury". That term is defined in s 32(1) as follows:32 Treatment injury(1) Treatment injury means personal injury that is—(a) suffered by a person—(i) seeking treatment from 1 or more registered healthprofessionals; or(ii) receiving treatment from, or at the direction of, 1 ormore registered health professionals; or(iii) referred to in subsection (7); and(b) caused by treatment; and(c) not a necessary part, or ordinary consequence, of thetreatment, taking into account all the circumstances of thetreatment, including—(i) the person's underlying health condition at the timeof the treatment; and(ii) the clinical knowledge at the time of the treatment.[44] Further, s 32(2) and (3) provide:(2) Treatment injury does not include the following kinds of personalinjury:(a) personal injury that is wholly or substantially caused by aperson's underlying health condition:(b) personal injury that is solely attributable to a resourceallocation decision:25 Accident Compensation Corporation v Hawke [2013] NZHC 2982 at [24]; Adlam v AccidentCompensation Corporation [2016] NZHC 1967 at [17].(c) personal injury that is a result of a person unreasonablywithholding or delaying their consent to undergo treatment.(3) The fact that the treatment did not achieve a desired result does not,of itself, constitute treatment injury.[45] Section 33(1) relevantly defines "treatment" as follows:33 Treatment(1) For the purposes of determining whether a treatment injury hasoccurred, or when that injury occurred, treatment includes—(a) the giving of treatment:(b) a diagnosis of a person's medical condition:(c) a decision on the treatment to be provided (including adecision not to provide treatment):(d) a failure to provide treatment, or to provide treatment in atimely manner:...[46] The first two Leave Questions relate to the application of s 33(1)(a) and (d),and in particular, whether they caused Jia's injury as that phrase is understood ins 32(1)(b).Analysis[47] I begin by addressing the second and third Leave Questions as they can be dealtwith briefly.Treatment failure[48] In my view, the proposed question of appeal focusing on s 33(1)(d) of the Actis predominantly one of fact.[49] In essence, Ms Peck, for Mrs Dela Rosa, seeks to persuade this Court thatJudge Walker ought not to have favoured Associate Professor Westgate's evidence thateach of Mrs Dela Rosa's clinical encounters followed the appropriate guidelines andthat the treatment decisions were acceptable. Indeed, other than the first sub-questionunder this Leave Question, the remainder focus on matters of weight in evaluating thepreferred evidence. Put simply, the Judge was within her right to favour AssociateProfessor Westgate's evidence and her decision to do so raises no question of law.[50] I say that this Leave Question is "predominantly one of fact" because the firstsub-question does raise a question of law, that is, the appropriate standard to be appliedin respect of s 33(1)(d). Ms Peck submits that the Judge erred by applying a negligencestandard to the issue of causation in determining whether there was a failure to providetreatment, or to provide treatment in a timely manner.[51] The Court of Appeal considered the meaning of "failure" in Adlam v AccidentCompensation Corporation, stating:26[61] In the result, we consider the relevant provisions properly construedmean that in order for there to be treatment injury as a result of a failure toprovide treatment it is necessary to show that an alternative treatment thatwould have prevented the injury suffered could and should have been givenhaving regard to the clinical indications at the time of the alleged failure.[52] The Court went on to provide guidance on when an alternative treatment"should" have been given, stating:27The injury said to be a treatment injury must be the consequence of a departurefrom appropriate treatment choices and treatment actions... A failure in thesense of omitting to take a step required by an objective standard is necessary.[53] Judge Walker applied this standard, stating:[229] However, the High Court decision and the Court of Appeal decisionin Adlam change the landscape and now form an integral part of reaching anyconclusion as to failure to treat, and requires that a claimant (in this case therespondent) must show alternative treatment would have prevented the injurysuffered and could and should have been given.[230] However, the respondent's position falls well short of this.(Original emphasis)[54] Because the Judge applied the correct test, no seriously arguable question oflaw arises.26 Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102.27 At [62].Reasons for preferring expert evidence[55] Like the preceding Leave Question, in my view, this proposed question ofappeal, which focuses on Judge Walker's apparent failure to provide reasons forpreferring the evidence of Associate Professor Westgate, raises no seriously arguablequestion of law.[56] Ms Peck submits that it is seriously arguable whether the Judge turned her mindobjectively to all the relevant evidence and came to an independent view. She submitsfurther that given the complex body of evidence and the potential impact on Jia andher family if this Court were to decline the application for special leave to appeal, theJudge's reasoning was insufficient. I disagree. On the contrary, I agree with JudgeHarrison's observation that Judge Walker "took great care to give reasons forpreferring Associate Professor Westgate's evidence."28 This is evident from thelengthy analysis which followed the setting out of the medical reports and opinions.[57] Further, I note that Judge Walker stated that she preferred the evidence ofAssociate Professor Westgate because of her "expertise in this area",29 herconsiderable qualifications,30 the detail and research she provided to support heropinions,31 her thorough analysis of each question put to her,32 her "reasoned andpersuasive" reports,33 and her "careful responses" to the evidence of other experts.34[58] In any case, I do not consider that this Leave Question is one of law. It is moreappropriately characterised as one of fact.Treatment and causation[59] Finally, I turn to the first Leave Question which requires greater discussion.28 Leave Decision, above n 3, at [20].29 Substantive Decision, above n 2, at [240].30 At [63].31 At [243].32 At [179] and [199].33 At [178].34 At [180]–[181].[60] The test for causation under the Accident Insurance Act 1998 — the precursorto the Act — was outlined by the Court of Appeal in Accident CompensationCorporation v Ambros.35 In W v Accident Compensation Corporation, Collins J heldthat this test remains relevant to the present accident compensation scheme, stating:36[55] The passages from Ambros quoted in [54] can be reduced to thefollowing three-step guide to causation under the scheme:(1) The first step is to determine whether there was causation infact, which is "usually assessed on the basis of a 'but for'test".(2) The second step is to determine whether there is causation inlaw, which involves taking "into account policy issues arisingin relation to the accident compensation scheme generally andthe particular manifestation of that regime at issue in thecase".(3) The third step, which the Court said, "will often merge into thesecond", involves an inquiry into the "proximity (remoteness)between the cause and the damage".[61] In applying the "but for" test, it is necessary to consider the counterfactual, thatis, what would have occurred had the treatment not been administered. Theconsequences of the treatment and whether or not it can be said to have caused theinjury under the "but for" test will depend on the counterfactual.[62] It is possible to consider two counterfactuals in these proceedings. Thesedepend on which particular stage of the medical decision-making process is taken asbeing the operative one for the purposes of causation. They are as follows:(a) The position Mrs Dela Rosa and Jia would have been in had the medicalprofessionals opted to induce Mrs Dela Rosa using an alternativemethod to the prostaglandin gel (First Counterfactual).(b) The position Mrs Dela Rosa and Jia would have been in had the medicalprofessionals decided not to induce Mrs Dela Rosa (SecondCounterfactual).35 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340 at [24]–[25].36 W v Accident Compensation Corporation [2018] NZHC 937, [2018] NZAR 829.[63] The different stages of the medical process are reflected in the scheme ofs 33(1) of the Act. Relevantly, s 33(1)(a) refers to treatments actually administered;s 33(1)(c) deals with decisions to treat (or not to treat) arising from a range of possibletreatment options; and s 33(1)(d) refers to more general failures to treat, or failures togive the treatment that was ultimately chosen in a timely manner.[64] Two different stages of the medical process — and therefore two differentsubsections under s 33(1) — are also reflected in the counterfactuals. The FirstCounterfactual relates to the actual treatment given, that is, once a decision to treat hasalready been made. Accordingly, it corresponds to s 33(1)(a). The SecondCounterfactual relates to the point in time when the decision to treat (or not treat)Mrs Dela Rosa was made. That is, the point in time the medical professionals decidedto induce labour rather than wait for labour to progress naturally or, alternatively,perform a caesarean section. Accordingly, it corresponds to s 33(1)(c) or arguablys 33(1)(d), the latter of which was rejected by Judge Walker.[65] This analysis is relevant given Judge Walker's determination, based onAssociate Professor Westgate's evidence, that Jia's injury was not caused by theadministration of the prostaglandin gel. Associate Professor Westgate stated, andJudge Walker accepted, the following:After considering all of the above, it is my conclusion that the most likelycause of the sudden bradycardia was in-utero cord occlusion secondary to bothrupture of the membranes with the loss of the small amount of liquor presentand the mild contractions caused by the Prostaglandin Gel. I suspect the cordbecame compressed between parts of the fetal body or between the body anduterine wall. The hyper-coiled nature of the cord may have made the cord moresusceptible to compression. Unfortunately, due to low liquor volumes and on-going (albeit mild) contractions the cord remained compressed which resultedin prolonged bradycardia. The cord compression would have been releasedonce the uterus was opened at the time of CS and would not have been obviousto the doctor who delivered the baby.Administration of the prostaglandin gel has contributed to these events byvirtue of the fact that it stimulated uterine activity which resulted inspontaneous rupture of the membranes. It is likely that the same events wouldhave happened with spontaneous onset of labour.[66] In Associate Professor Westgate's opinion, the cause of Jia's injury was thecoiling of the umbilical cord caused by the cord being crushed between the foetus andthe uterine wall following the inducement of labour. Putting aside questions on theappropriateness of the decision, in Associate Professor Westgate's opinion, Jia's injurywas caused by the decision to induce Mrs Dela Rosa rather than the method by whichinducement went ahead once the decision to induce was made (that is, byadministering the prostaglandin gel).[67] Associate Professor Westgate's opinion therefore invokes s 33(1)(c) of the Act(as opposed to s 33(1)(a)), which was not argued before Judge Walker. Throughoutthese proceedings both in the District Court and in this Court, counsel for Mrs DelaRosa have argued that administration of the prostaglandin gel caused the prolongedbradycardia for the purposes of s 32(1)(b) of the Act. The focus has therefore been ons 33(1)(a).[68] However, the Judge cannot be faulted for her application of the "but for" test.Her causation analysis, focusing on s 33(1)(a), was appropriately narrow and appliedthe First Counterfactual at [62] above. It properly respected the separate focuses ofs 33(1)(a), (c) and (d). As such, Judge Walker was correct to limit the causation testto the method by which labour was progressed (the prostaglandin gel as opposed to,for example, a catheter balloon) given the decision to induce labour had already beentaken.[69] In any event, had the scope of Judge Walker's causation test been broader andthe Second Counterfactual been considered, there would not have been sufficientevidence to suggest that at the time the decision was made to induce Mrs Dela Rosa'slabour, another option, such as a caesarean section or allowing labour to progressnaturally, was necessarily available or more appropriate. As the Court of Appealexplained in Adlam, albeit in respect of s 33(1)(d), when assessing causation, "analternative treatment must have been...clinically available".37[70] Accordingly, in considering s 33(1)(a), the Judge applied the correct causationtest and the Leave Question becomes one of fact; that the Judge ought not to havepreferred the evidence of Associate Professor Westgate.37 Adlam v Accident Compensation Corporation, above n 26, at [54]–[55].Result[71] For the reasons given, I do not consider that Mrs Dela Rosa's applicationsatisfies the criteria for special leave under s 162(3) of the Act. The Leave Questionsare not seriously arguable and are more appropriately characterised as questions offact.[72] The application for special leave to appeal is dismissed._______________________Doogue JSolicitors:John Miller Law, WellingtonRussell McVeagh, Wellington