Karmarkar v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT AUCKLAND [2018] NZACC 138 ACR 92/17 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 MADHAV HARI KARMARKAR Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers at Auckland Decision: 27 August 2018 DECISION OF JUDGE G M HARRISON [1] Mr Karmarkar seeks leave to appeal to the High Court on a question of law against the decision of Judge Henare of 20 February 2018 in which she determined that Mr Karmarkar had not suffered a treatment injury and was not entitled to compensation. [2] By minute of 1 March 2018 Judge JH Walker directed the parties to file submissions and that, in the event submissions were so filed, the application would be dealt with on the papers. Submissions have been duly filed. [3] The facts are fully set out in the decision of Judge Henare. Essentially, on 21 April 2016 Mr Karmarkar underwent surgery for removal of his gall bladder, described medically as a laparoscopic cholecystostomy. This procedure was performed by a general surgeon, Mr John Dunn. 2 [4] Having commenced the surgery, Mr Dunn confers with colleagues Mr Adam Bartlett and Mr Andrew Bowker and suspects a Mirizzi type syndrome. This amounts to an extremely difficult situation, with a large stone impacted in Hartmann's pouch of the gallbladder which was impinging on the common duct. [5] After conferring with his colleagues Mr Dunn determined that the best plan was to drain the gall bladder by the cholecystostomy tube and that was what was performed. After further tests the condition had improved and, on 29 August 2016, Mr Bartlett undertook the surgical removal of the gall bladder which was successful. [6] The Judge referred to ss 32 and 33 of the Act, dealing with treatment injury, and stated the two issues to be determined on the appeal as: (a) Whether there was a failure by Mr Dunn to arrange for additional preoperative assessments to investigate Mr Karmarkar's condition, and/or a failure to consider non-surgical options to treat the condition; (b) If so what personal injury could Mr Karmarkar suffer as a result of the failure or failures. [7] The Corporation and the Judge had the benefit of reports from Mr Dunn and Professor Windsor. Professor Windsor reported that it was not possible to foresee whether a cholecystostomy can be undertaken without a trial dissection, as was undertaken in this case. Indeed, in a report of 8 December 2016 Professor Windsor commented that: Given the inflammation and scarring at the time of surgery it was entirely appropriate to wait an extended period of time before going back to the operation theatre to remove the gall bladder. The interval was acceptable. This sequence is exemplary and could be used as a teaching case on how to deal with this complex problem. [8] Having assessed this evidence and no evidence called to the contrary, the Judge concluded that there was no failure by Mr Dunn to arrange for additional preoperative investigations or assessments. That being so, and also because there was no failure to consider non-surgical options to treat the condition, the Judge concluded that no personal injury was suffered. She therefore dismissed the appeal. 3 [9] In his submissions on behalf of the Corporation Mr Tuigeregere drew attention to the requirement for an applicant for leave to identify a question of law that should be referred to the high Court. He referred to the decision of Impact Manufacturing (unreported, Doogue J, HC Wellington AP 266/00, 6 July 2001) where it was held that the contended point of law must be "capable of bona fide and serious argument" to qualify for the grant of leave. [10] He also referred to the decision of the Court of Appeal in Northland Co-operative Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363 where 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". [11] Mr Karmarkar's concern was that the cholecystostomy tube, which was in place for just over four months, should not have been inserted, and that other preoperative procedures should have been undertaken, particularly that a Magnetic Resonance Cholangiogram should have been undertaken. There was no evidence before the Judge supporting that, and in any event, as described, the procedure followed by Mr Dunn was entirely successful leading, as it did, to the successful removal of the gall bladder. [12] No question of law for reference to the High Court has been identified. The insertion of the cholecystostomy was clearly a necessary part of the treatment and being so cannot amount to a treatment injury. [13] For these reasons the application for leave to appeal is dismissed. District Court Judge