Orange v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT HAMILTON 2018] NZACC 139 ACR 268/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION UNDER SECTION 162 OF THE ACT FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW BETWEEN KERI-ANNE ORANGE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers at Auckland Decision: 27 August 2018 DECISION OF JUDGE G M HARRISON [1] Ms Orange applies for leave to appeal to the High Court on a question of law against a decision of Judge Sinclair of 7 September 2017. [2] The application was referred to Judge Powell (as he then was) and in his minute of 25 September 2017 he directed that submissions be filed and served by specified dates following which the application would be determined on the papers. Submissions have now been filed according to those directions. The issue [3] The issue, as stated by Judge Sinclair, is whether Ms Orange is entitled to cover for a treatment injury which she says she suffered as a consequence of a decision not to remove her appendix during surgery in 2012. 2 [4] The Judge sets out the full history of Ms Orange's ordeal in her decision. [5] The salient facts are that Ms Orange had suffered abdominal pain since 2010. In June 2012 she underwent a diagnostic laparoscopy to assess whether there were any signs of endometriosis. Ms Orange's appendix was observed to be normal with some periappendiceal adhesions "possibly due to previous mild appendicitis". [6] Ms Orange continued to experience abdominal pain. She underwent further medical procedures in 2013 and 2014 with nothing abnormal reported. [7] In April 2015 she underwent a laparoscopy for the removal of her appendix, and to re-sect the bowel which had been affected by a state or condition described as Meckel's diverticulam. [8] In June 2015 Ms Orange's GP lodged a claim on her behalf in which her injury was described as "chronic abdominal pain since 2010, with chronic appendix disorder in 2012 but appendix not removed until April 2015." The treatment alleged to have caused the injury was said to be the "failure to treat the appendix" [9] Following receipt of the claim the Corporation obtained reports, first from her surgeon Mr French, and secondly from Dr Mary Vant who performed the original laparoscopy in June 2012, then from Dr Graeme Dixon the clinical director of gastroenterology at Waikato Hospital, and lastly from Dr Pat Alley, a general surgeon. Ms Orange was also referred to another general surgeon, Mr Burnd Grunewald. [10] At [22] of her decision the judge analysed these reports, all of which were to the effect that there was no causal connection between any failure to remove the appendix in 2012 and the pain from which Ms Orange suffered. [11] The Judge acknowledged that there was a temporal connection between the removal of the appendix and the disappearance of the abdominal symptoms, however the Judge concluded on the basis of the medical opinion supplied that such a connection is not sufficient to establish the requisite causal link between the stated 3 physical injury and treatment/lack of treatment. The Judge acknowledged that there was uncertainty as to what actually caused the symptoms, but she was satisfied that there was clear agreement among the medical specialists that they were not caused by appendicitis. [12] It is understandable that Ms Orange has the view that her abdominal pain was caused by her appendix because after its removal her pain dissipated but, unfortunately, from her point of view the consensus of medical opinion was that her pain was not caused by her appendix. [13] The Judge referred to s 32 of the Act which deals with treatment injuries and noted that treatment is defined in s 33 to include a failure to provide treatment, or to provide treatment in a timely manner. If the medical opinion had been to the effect that the appendix was causing the abdominal pain and that it should have been removed during the laparoscopy in 2012 but was not, then Ms Orange may well have established that she had suffered a treatment injury, but the evidence does not support that. [14] To obtain leave to appeal to the High Court Ms Orange must establish a question of law of sufficient importance to require determination by the High Court. [15] In her submissions in support of her application for leave, Ms Orange says: Both ACC's and the Judge's decision have been focused on the fact that there was little to no evidence or specific medical reason for my appendix to have been removed in the 2012 laparoscopy but by not having removed it at that point, I subsequently went on to have the numerous symptoms outlined above. I adamantly believe if my appendix had been removed in 2012 I would not have had any of the symptoms I suffered from during 2012-2015. By failing to remove my appendix in 2012, it allowed my health to further deteriorate and symptoms to worsen, creating a personal injury of "infection/inflammation" due to the failure of not removing my appendix when the periappendiceal adhesions were seen in 2012. I believe the Judge has missed this in her findings hence creating an error of law. Due to the fact, "infection/inflammation" had not been classed as an injury. Even though it is according to ACC Accident Compensation Act 2001 clause 32(1). (16] Previous relevant Court decisions are Impact Manufacturing (unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001) where it was held that the 4 contended point of law must be "capable of bona fide and serious argument" to qualify for the grant of leave. [17] In Northern Co-operative Dairy Company Limited v Rapana [1999] 1 ERNZ 361, 363 the Court of Appeal directed that "care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed". [18] Ms Orange's position is that in effect she disagrees with the opinions of the medical experts because, in her view, her pain was caused by her appendix, and her pain went once the appendix was removed. It is logical of course for her to draw that conclusion but it is contrary to the medical evidence. The position is, simply, did the appendix cause the pain? That is a question of fact. The evidence of the experts was that it did not, and consequently no question of law arises which needs to be referred to the High Court. [19] The application for leave to appeal is dismissed accordingly. There is no issue as to costs. G M Harrison District Court Judge