LESLIE NORMAN AUSTIN v ROCHE PRODUCTS (NEW ZEALAND) LIMITED [2020] NZSC 49

LESLIE NORMAN AUSTIN v ROCHE PRODUCTS (NEW ZEALAND) LIMITED [2020] NZSC 49 [19 May2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 5/2020[2020] NZSC 49BETWEEN LESLIE NORMAN AUSTINApplicantAND ROCHE PRODUCTS (NEW ZEALAND)LIMITEDRespondentCourt: Glazebrook, Ellen France and Williams JJCounsel: G J Thwaite for ApplicantJ A MacGillivray for RespondentJudgment: 19 May 2020JUDGMENT OF THE COURTA The application for leave to appeal is granted in part(Roche Products (New Zealand) Ltd v Austin [2019] NZCA660).B The approved question is whether the applicant's claim forcompensatory damages should have been struck out on thebasis that his injuries were not an ordinary consequence ofthe consumption of Roaccutane.C The application for leave to appeal is otherwise dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Austin claims that he has suffered ossification of the spine through longterm use of an acne treatment (Roaccutane) distributed in New Zealand by RocheProducts (New Zealand) Ltd (Roche). He was granted cover by the AccidentCompensation Corporation for spinal issues caused by Roaccutane from 11 December2015 and received compensation until he turned 65 in early 2017.[2] Late in December 2016 Mr Austin commenced a proceeding against Rochealleging negligence in relation to the distribution of Roaccutane, which is availableonly on prescription. He sought both compensatory and exemplary damages.[3] Roche applied to strike out the whole claim as time-barred and, in thealternative, to strike out the compensatory damages claim as barred by s 317 of theAccident Compensation Act 2001 (the Act).[4] The strike-out application was dismissed by the High Court.1 In the Court ofAppeal, the claim for compensatory damages was struck out but leave was reservedfor Mr Austin to file an amended pleading seeking compensatory damages with regardto a period where he used Roaccutane that had been prescribed for his sons.2[5] In Mr Austin's submission the Court of Appeal was wrong to strike out hisclaim for compensatory damages. He says that there are two issues of general andpublic importance: first, whether his injury was an "ordinary consequence" of themedical treatment under s 32(1)(c) of the Act and, second, whether the physical supplyof a drug by a pharmaceutical company to a person constitutes a "treatment" in termsof s 33 of the Act.3[6] We consider that the leave criteria are met with regard to the first proposedquestion.4 Our reasons for refusing the application for leave to appeal on the secondquestion follow.1 Austin v Roche Products (New Zealand) Ltd [2018] NZHC 208 (Associate Judge Christiansen).2 Roche Products (New Zealand) Ltd v Austin [2019] NZCA 660 (Kós P, Brown and Goddard JJ)[CA judgment] at [51]–[52].3 Mr Austin's argument is that as the supply of pharmaceuticals is not "treatment", then he couldnot have suffered a treatment injury: s 32(1)(b).4 Senior Courts Act 2016, s 74(2).Treatment[7] Treatment is defined in s 33(1) to include the giving of treatment, diagnosis ofa medical condition, a decision on the treatment to be provided including a decisionnot to provide treatment, and a failure to provide treatment either at all or in a timelymanner.[8] Before the Court of Appeal, Mr Austin argued that the supply ofpharmaceuticals was not "treatment" under s 33, based on the provisions dealing withclinical trials.5 He also argued that, while the supply of pharmaceuticals by a medicalpractitioner was treatment, manufacturers are not protected by the Act.6 Finally, heargued that the provision of Roaccutane was a service rather than a treatment.7[9] He essentially reprises the same arguments before this Court.Court of Appeal decision[10] As to the clinical trial provisions, the Court held that there was force in thesuggestion that the underlying policy of the exclusion was that, since a commercialsponsor derives the financial benefit from a clinical trial, that sponsor should bear thecost of compensating participants injured in the trial.8 There was nothing to suggest abroader interpretation is required.[11] In particular, the Court held that there was no basis for the argument that,because some clinical trials involve pharmaceutical products, the Act should be readas excluding from treatment, and therefore cover, the administration of anypharmaceutical medicine.9 The Court held that there was no basis for the argumentthat, while the supply of pharmaceutical products to a patient by a medical practitioneris treatment, the supply of pharmaceuticals by a manufacturer is not treatment. If thesupply of pharmaceutical products to a person is treatment for the purposes of the Actand a treatment injury results which is covered by the Act, then the statutory bar in5 Relying on s 32(6) of the Accident Compensation Act 2001.6 Relying on s 6(1) definition of "treatment provider" and submitting that "treatment" should takeits context from "treatment provider".7 Relying on cl 3(1) of Sch 1.8 CA judgment, above n 2, at [41].9 At [42].s 317 prevents any proceedings being brought against any person. It is impossible toread s 317 as barring claims against some categories of defendants and not others.10[12] Mr Austin's proposed distinction between treatment and service (withprovision of Roaccutane being provision of a "service") was also rejected on the basisthat it was not supported by the text of the Act. In the Court's view, the concept oftreatment injury in s 32 was intended to include a personal injury suffered through theadministration of medication by a health professional.11 The definition of treatmentin s 33, which is inclusive, necessarily includes the giving of medication consequenton diagnosis. The interpretation suggested by Mr Austin would give rise to anuncertain line of demarcation between diagnosis and treatment on the one hand andtherapy by the administration of medicines on the other.12 The Court considered thatthe provisions relating to services referred to by Mr Austin were in another contextand have no bearing on what constitutes treatment for determining cover under theAct.13[13] The Court concluded:[50] Accordingly we consider that the provision of a prescription forself-administration of a pharmaceutical involved giving a treatment(s 33(1)(a)) consequent upon the diagnosis of Mr Austin's DISH condition(s 33(1)(b)) by a registered health professional from whom Mr Austin hadsought treatment (s 32(1)(a)(i)). Consequently Mr Austin suffered a treatmentinjury in respect of which he had cover and entitlements under the Act. Anydifferent interpretation would be artificial and unrealistic. It could haveunacceptable limitations for large numbers of New Zealanders who presentlylook to the Corporation for cover in respect of adverse reactions to prescribedpharmaceuticals.Our assessment[14] While the definition of treatment would be a matter of general and publicimportance, we do not consider Mr Austin's arguments have sufficient prospects of10 At [43].11 At [45].12 At [47].13 At [48]–[49].success to merit leave being granted. Nor does anything raised by Mr Austin suggesta miscarriage of justice in relation to this issue.14Result[15] The application for leave to appeal is granted in part.[16] The approved question is whether the applicant's claim for compensatorydamages should have been struck out on the basis that his injuries were not an ordinaryconsequence of the consumption of Roaccutane.[17] The application for leave to appeal is otherwise dismissed.[18] The appeal should be set down for hearing after the judgment of the Court ofAppeal in Ng v Accident Compensation Corporation (heard on 29 April 2020) isreleased.15[19] The Registrar should provide a copy of this judgment to the AccidentCompensation Corporation.Solicitors:Tompkins Wake, Hamilton for Respondent14 Senior Courts Act, s 74(2)(b). See Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006]NZSC 60, (2006) 18 PRNZ 369 at [4]–[5]; and Shell (Petroleum Mining) Co Ltd v Todd PetroleumMining Co Ltd [2008] NZSC 26, (2008) 18 PRNZ 855 at [4].15 Ng v Accident Compensation Corporation (CA 125/2019), an appeal from Accident CompensationCorporation v Ng [2018] NZHC 2848.