Dela Rosa v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT WELLINGTON I TE KOTI-A-ROHE KI TE WHANGANUI-A-TARA [2019] NZACC 73 ACR 032/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO S 162 BETWEEN JOHANNA DELA ROSA (AS LITIGATION GUARDIAN) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Judgment: 4 July 2019 (On the papers) DECISION OF JUDGE G M HARRISON [1] Ms Dela Rosa, as litigation guardian of her daughter Jia Dela Rosa, applies for leave to appeal to the High Court on a question of law against the decision of Judge J H Walker of 19 December 2018 whereby an appeal by the corporation was allowed, resulting in cover being declined for Jia. [2] By minute of Judge Henare of 15 January 2019, the parties were directed to file submissions by specified dates following which the application was directed to be determined on the papers. Those submissions have been filed. Background [3] This is a tragic case. Jia suffered bradycardia during her birth by caesarean section, which resulted in hypoxic-ischemic encephalopathy and basal ganglia changes ("the injuries"). [4] Jia was born on 20 August 2013 which is detailed in [30] of the decision. Essentially, Jia required active resuscitation and only regained a heart rate at 13 minutes of age. [5] Her mother now seeks cover for her which was initially granted by the decision of the reviewer, Ms Sandra Gay, of 23 December 2015 which overturned the corporation's decision of 14 January 2014 declining Jia cover for treatment injury. Judge Walker's decision overturned that of the reviewer and confirmed the corporation's original decision. [6] The relevant issue, in the submission of the corporation, is whether the administration of prostaglandin gel caused Jia's injuries for the purposes of's 32(1)(b) of the Act so as to amount to a coverable treatment injury. [7] The prostaglandin gel was administered to Ms Dela Rosa to bring on birth contractions prior to a caesarean section being conducted. [8] The essence of the Judge's decision is as follows: [231] Accordingly, counsel for the respondent's statement that this "dove tails with [43] of Adlam, where the drug administered resulted in an unanticipated reaction causing injury" is incorrect. I find it has not been established that the use of prostaglandin gel produced any adverse or unexpected effect. [232] Accordingly, I find that the bradycardia which resulted in hypoxic-ischemic encephalopathy (HIE) and basal ganglia was not a treatment injury and has not been shown to have occurred either wholly or substantially because of an underlying health condition. [233] I accept the submission of counsel for the appellant (the corporation) that the evidence does not support the assertion that the prostaglandin gel had a causal relationship to the claimant's personal injury, either on its own, or linked in some way suggested by counsel for the respondent, with reduced placental reserves per se or some cord pathology. [234] I accept Associate Professor Westgate's opinion that Jia was likely to have experienced problems in a spontaneous labour or an induced labour. [235] I accept the submissions of counsel for the appellant that under s 33(2)(g) of the Act, an injury can only be a treatment injury, if it is demonstrated on the balance of probabilities it was not caused wholly or substantially by her underlying condition. [236] The fact that the umbilical cord was hyper coiled rendered her susceptible to sudden cord occlusion during labour and it is noted in the paediatric pathologist's report it is often associated with adverse outcomes. [237] In this particular circumstance, this was the probable cause for the sudden bradycardia and resulting HIE, and aligns with Associate Professor Westgate's wording of "sudden unexpected bradycardia" occurring, was sudden cord occlusion". The proposed questions of law [9] I have concluded that no question of law has been identified which should be referred to the High Court. In reaching this conclusion I have been greatly assisted by the submissions of counsel, E J Rushbrook, for the corporation. [10] In Gilmore v Accident Compensation Corporation, Dunningham J said: ! [28] Section 162 makes it clear that an appeal is only allowed on a question of law. A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court unless clearly unsupportable. Whether or not a statutory provision has been properly construed 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 mixed question of law and fact is a matter of law. [11] The corporation's position is that while the evidential questions at issue are sensitive and complex, the legal questions have settled answers. It says that the Judge understood those principles correctly and applied the law to the facts of the case as she found them. Consequently, it submits that no questions of law capable of bona fide and serious argument arise from the decision and that leave should not be granted. Gilmore v Accident Compensation Corporation [2016] NZHC 1594. [12] Eight questions of law are posed by Ms Dela Rosa. The corporation summarises those eight questions into three over-arching questions as: (a) whether the Judge erred in her approach to s 33(1)(a) of the Act; (b) whether the Judge erred in her approach to s 33(1)(d) of the Act; and (c) whether the Judge erred in failing to give adequate reasons for her decision, in particular for preferring the evidence of one expert over the others. [13] A treatment injury is defined by s 32 of the Act. As relevant, s 33 provides: 1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes- a) The giving of treatment (d) A failure to provide treatment, or to provide treatment in a timely manner. [14] The corporation accepted that the administration of prostaglandin gel amounted to a "treatment" under s 33(1)(a). That subsection was therefore not in question. The relevant issue was whether the administration of prostaglandin gel caused Jia's injuries so as to amount to a coverable treatment injury. [15] Whether the administration of a drug causes an injury is a question of fact. The Judge determined that the administration of the prostaglandin did not cause the injury and in reaching that conclusion, she relied upon the extensive medical expert opinion set out in her decision, preferring as she did in the end, the opinion of Associate Professor Westgate over the other opinions submitted in evidence. [16] The second over-arching question of law was whether the Judge erred in her approach to s 33(1)(d) of the Act, namely whether there was a failure to provide treatment or to provide treatment in a timely manner. [17] This raised for consideration the decision of the Court of Appeal in Adlam v ACC.? The relevant statement from that decision is: In order for there to be a failure to provide treatment, we consider there must have been some indication at the time of the failure that the treatment not provided should have been provided. Unless that approach is taken it is difficult to see how there could be a relevant failure to provide treatment that caused the personal injury. [18] Again, it is a question of fact whether there was a failure to provide treatment. After assessing the relevant expert opinion at [206], the Judge held: Accordingly, I do not find grounds for a treatment failure pursuant to s 33(1)(d) has been established. [19] The third over-arching question is whether the Judge erred in failing to give adequate reasons for her decision and in particular for preferring the evidence of one expert over the others. On this issue I accept the submission of counsel for the corporation at [80]: .. In this case, Judge Walker engaged in extensive discussion of the evidence provided by Dr Baird and Dr Stone on which the applicant relies. Her Honour outlined the key differences between that evidence and the evidence of Associate Professor Westgate and, most importantly, provided detailed reasons for preferring the opinion of Associate Professor Westgate to the other experts. In particular, Judge Walker explained that she valued the evidence of Associate Professor Westgate because of: (a) her "expertise in this area"; (b ) her considerable qualifications; (c ) the detail and research she provided to support her evidence; (d ) her "careful" reasoned and "persuasive" reports; and (e) her specific responses to the evidence of the other experts. [20] It is clear that the Judge took great care to give reasons for preferring Associate Professor Westgate's evidence, and no question of law arises in that regard either. 2 Adlam v ACC [2017] NZCA 457. Conclusion 21] For the foregoing reasons, and the further analysis of what I describe as the sub-questions in the corporation's submissions, no question of law has been identified which should be referred to the High Court for its consideration. [22] The application for leave to appeal is accordingly dismissed, with no issue as to costs. District Court Judge