FOLKEMA v ACCIDENT COMPENSATION CORP [2023] NZHC 1103

FOLKEMA v ACCIDENT COMPENSATION CORP [2023] NZHC 1103 [10 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-1532[2023] NZHC 1103UNDER the High Court Rules 2016 and the AccidentCompensation Act 2001IN THE MATTER of an intended appeal under s 162 of theAccident Compensation Act 2001BETWEEN MATTHEW FOLKEMAApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 23 February 2023Appearances: B R Hinchcliff for the ApplicantL D Hawes-Gander and F L Becroft for the RespondentJudgment: 10 May 2023JUDGMENT OF HARVEY JThis judgment is delivered by me on 10 May 2023 at 4 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors: ACC and Employment Law, AucklandMedico Law, AucklandIntroduction[1] Matthew Folkema had braces fixed to his upper and lower jaws in Peru in late2015 and early 2016. In February 2016 he received orthodontic treatment. X-raystaken in November 2017 identified some root resorption of the upper incisors. Furtherx-rays were taken in June 2019 confirming further upper incisor resorption. Later thatmonth, Mr Folkema's GP lodged a claim with the Accident Compensation Corporationasserting that the upper incisor root resorption was caused by the orthodontic treatmentreceived in February 2016.[2] Between November 2019 and April 2021, the Corporation ultimately declinedcover after two reviews.[3] On 10 May 2022, Judge D L Henare dismissed Mr Folkema's appeal. Hissubsequent application for leave to appeal was also dismissed on 18 August 2022 byJudge P R Spiller. Mr Folkema now appeals to this Court for special leave.[4] The issue for determination is whether that application should be granted.Background[5] As foreshadowed, Mr Folkema had braces fixed to his upper and lower jaws inPeru in late 2015 to January 2016. Following that, on 13 February 2016, Dr Quick,an orthodontist, provided orthodontic treatment in New Zealand. Root resorption ofthe upper incisors was identified in x-rays taken in November 2017. Then on3 December 2017, Dr Quick wrote to Mr Folkema recording that, based on acomparison between the x-rays, his upper right central root length had reduced from14 to 10 mm. The braces were removed in late 2017/early 2018. X-rays taken in June2019 confirmed further upper incisor root resorption.[6] As foreshadowed, on 25 June 2019, Mr Folkema's GP made a claim to theCorporation claiming that the resorption was caused by Dr Quick's treatment. On7 August 2019, Dr Quick confirmed that root resorption "is a very common sideeffect" of orthodontic treatment. He confirmed that on average 1.5 mm is commonand that it is "very rare" to suffer resorption in excess of 4 mm.[7] The Corporation declined cover on 14 November 2019 claiming that resorptionwas an ordinary consequence of the treatment. Following that, on 27 July 2020Mr Lawless, a reviewer for the Corporation, quashed his decision and directed thesecuring of further evidence as to whether the degree of resorption experienced byMr Folkema was an ordinary consequence of the treatment.[8] On 9 November 2020, the Corporation issued a further decision decliningcover once again on the basis that Mr Folkema's experience was an ordinaryconsequence of treatment. That decision was upheld by Mr Edmondson, anotherreviewer, on 1 April 2021.District Court judgment[9] Judge Henare heard the appeal on 7 March 2022, received further evidence on7 April and then issued her judgment on 10 May 2022.1[10] The Judge set out the agreed facts and medical evidence and confirmed theprincipal issue on the appeal was whether root resorption is an ordinary consequenceof the orthodontic treatment Mr Folkema received. She then outlined the parties'submissions. The thrust of Mr Hinchcliff's submissions were that although some rootresorption is expected from orthodontic treatment, the degree of resorption sufferedby Mr Folkema was "very rare" and thus outside the normal range of consequences.The Corporation argued that due to Mr Folkema's unusual circumstances there was no"normal range for him", and that it was not possible to determine the amount ofresorption which occurred. Even if it was to the extent claimed, the Corporationsubmitted it would still be within the normal range of resorption for persons receivingorthodontic treatment.[11] The Judge then referred to s 32 of the Accident Compensation Act 2001 (theAct) and its definition of "treatment injury", this excluding "an ordinary consequenceof the treatment" as set out in Accident Compensation Corporation v Ng.2 The Judgehighlighted the Court of Appeal's approach concerning a move away from statistical1 Folkema v Accident Compensation Corporation [2022] NZACC 85.2 Accident Compensation Corporation v Ng and L [2020] NZCA 274; [2022] NZLR 683, at [67]–[72].frequency to tests that have a degree of flexibility to permit the decision-maker toexercise judgement. This was on the basis, she confirmed, that treatment injury claimsdemonstrate "an extraordinarily wide variety of circumstances from which these casesarise". The Judge also stated the relevant factors as set out by the Court of Appeal,namely the nature, duration and severity of the harm; the patient's susceptibility to theadverse consequence; and medical studies, literature and statistics (with caution).[12] Judge Henare noted that she needed to first consider the nature, duration andseverity of Mr Folkema's condition. The Judge acknowledged that the evidence wasnot perfectly clear as to how much root resorption Mr Folkema had suffered andreferred to Dr Quick's 2017 x-rays and the caveat therein. She then considered thereports of Dr Gilbert dated 29 October 2019 and 30 October 2020 which echoedDr Quick's challenges in measuring the extent of Mr Folkema's root resorption andwhen it occurred. The Judge then held that she did not accept Mr Hinchcliff'ssubmission of over 4 mm of root resorption but did accept at least some root absorptionoccurred.[13] Judge Henare then considered the medical literature referred to by Dr Quickand Dr Gilbert which indicated that root absorption is an unavoidable pathologicalconsequence of orthodontic tooth movement. The Judge also mentioned Dr Quick'sreport of 7 August 2019, summarising medical literature, which arrived at similarconclusions. That report also noted that root resorption of greater than 30 per cent isconsidered severe, duration of treatment may be a risk factor, and root resorption isunpredictable and cannot be prevented with any degree of certainty.[14] Following that, the Judge considered Mr Folkema's susceptibility to rootresorption in light of the medical literature, again quoting extensively the reports ofDr Quick from 7 August 2019 and of Dr Gilbert from 29 October 2019 and 30 October2020. Ultimately, she concluded that Mr Folkema had increased susceptibility to rootresorption from his treatment setting out five factors, reproduced below forconvenience:(a) Duration of treatment – Mr Folkema underwent a 26 month treatmentprogramme in Dr Quick's practice, and he had already started orthodontictreatment before that, when the fixed appliances were placed on his upper andlower teeth in Peru. Dr Quick reported 30 active appointments. Three of theappointments were for oral hygiene with bleeding and inflammation and tenwere for emergency breakages. They are not part of the same treatment whichcommenced in Peru and continued with Dr Quick, there were also unknownperiods of treatment with Dr Dearing. Dr Quick considered this to be anextended length of treatment. However, it is the case that treatment formalocclusion started in Peru and continued in New Zealand.(b) Extensive tooth movement – Mr Folkema presented for treatment withseriously misaligned teeth (severe malocclusion); his upper teeth protrudedover his lower teeth (severe overbite – overjet). Given the severity of thecondition, substantial tooth movement was required.(c) Force of bite – Dr Gilbert commented, since Mr Folkema has a very lowanterior face height, the force of his bite (occlusal force) is higher than normaland this could lead to root resorption. Similarly, Dr Quick suggestedMr Folkema's traumatic bite was a factor contributing to his root resorption.(d) Premolar extractions – three of Mr Folkema's upper premolars (with evidenceof short roots) were extracted.(e) Susceptibility of incisors – Mr Folkema's orthodontic treatment focused on hisincisors, and his upper incisors appear to have been the most affected by rootabsorption.[15] Tellingly, the Judge rejected the respondent's contention that Mr Folkema wasmore susceptible because he refused orthognathic surgery. She concluded that if hedid complete surgery then less orthodontic treatment would have been necessary. Thatwould have meant less root resorption "may" have occurred, but the failure to obtaintreatment did not somehow increase his susceptibility. In addition, the Judge notedDr Gilbert's opinion that there was no normal range of root resorption for Mr Folkemasince his malocclusion was "most unusual, and unlikely to have been seen sufficientlyoften for there to be a normal range of outcomes." The Judge interpreted this to meanthat for someone with the particular susceptibilities of presenting condition andcircumstances of Mr Folkema, the ordinary range of outcomes is likely to be moresevere than normal.[16] The Judge concluded:[73] Taken together, the evidence before me shows it was not possible todetermine the degree of root resorption which occurred in this case. Further,there is no suggestion in the available reports that the root resorption whichoccurred was outside the normal range taking into account the circumstancesof treatment and Mr Folkema's circumstances.[74] I conclude the evidence shows that Mr Folkema was at greater risk ofroot resorption. In particular, the following factors are relevant: treatmentduration, extensive tooth movement during treatment, Mr Folkema's bite,three premolar extractions, and susceptibility of incisors. Having regard to allthe available evidence, I conclude the root resorption suffered by Mr Folkemawas within the normal range of outcomes having regard to his circumstancesand the treatment.[17] She then dismissed the appeal.District Court judgment on leave[18] Judge Spiller issued his decision on 18 August 2022.3 He noted that theapplicant's reliance on Accident Compensation Corporation v Ambros wasmisplaced.4 In that case, the Court of Appeal commented on the challenge inestablishing a causal link between medical error and personal injury. Even so, in thepresent case, the Judge confirmed that it was not in dispute for the purposes of s 32 ofthe Act that Mr Folkema's root resorption was caused by orthodontic treatment.[19] He further noted that Judge Henare found that the ordinary range ofconsequences for orthodontic treatment included some measure of root resorption andthat given Mr Folkema's increased susceptibility, there was no suggestion that whatoccurred was outside the normal range.[20] The Judge concluded that Mr Folkema had failed to establish sufficientgrounds as a matter of law to sustain an application for leave to appeal which he then3 Folkema v Accident Compensation Corporation [2022] NZACC 162.4 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.dismissed. He also observed that, even if the qualifying criteria had been made out,he would not have exercised the discretion to grant leave "so as to ensure the properuse of scarce judicial resources." Finally, in dismissing the application, the Judgeconfirmed that he was not satisfied as to the wider importance of any contended pointof law.Applicant's submissions[21] Mr Hinchcliff submitted that the District Court decision is wrong in factbecause it failed to correctly undertake an appropriate analysis of the meaning of"ordinary consequence" per s 32(1)(c) of the Act and in light of the Court of Appealjudgment Accident Compensation Corporation v Ng and L.5 Secondly, the evidenceis inconsistent with and contradictory to the decision. The only reasonable conclusionon the evidence contradicts the decision.[22] Mr Hinchcliff submitted the following summary of the District Court decision.The Court concluded that it was not possible to determine the degree of resorption thatoccurred. There was no suggestion that it was outside the normal range, takingaccount of the treatment and Mr Folkema's circumstances. In any event, Mr Folkemawas at greater risk of resorption. Relevant factors included treatment duration,extensive tooth movement during treatment, Mr Folkema's bite, three pre-molarextractions and the susceptibility of his incisors. The Judge concluded that MrFolkema's resorption was "an ordinary consequence of the orthodontic treatment".[23] Mr Hinchcliff referred to the test for leave under s 162 of the Act, citing YZ vACC and O'Neill v Accident Compensation Corporation in support.6 Counsel alsoreferred to the Supreme Court's judgment Bryson v Three Foot Six Ltd for theprinciples relating to errors of law,7 which were applied in Gilmore v AccidentCompensation Corporation.85 Accident Compensation Corporation v Ng and L, above n 2.6 YZ v Accident Compensation Corporation [2020] NZACC 160 at [19]; and O'Neill v AccidentCompensation Corporation [2008] NZACC 250 at [24]–[26].7 Bryson v Three Foot Six Ltd [2005] NZSC 34.8 Gilmore v Accident Compensation Corporation [2016] NZHC 1594.[24] Mr Hinchcliff referred to the Court of Appeal decision Accident CompensationCorporation v Ng and L and its definition of "not an ordinary consequence" assomething out of the ordinary which occasions a measure of surprise.9 Applying theseprinciples and on the other cases cited, Mr Hinchcliff submitted that the errors in theDistrict Court judgment are the findings that:(a) it is not possible to determine the amount of root resorption;(b) the root resorption was not outside the normal range, taking account of thecircumstances of treatment;(c) Mr Folkema was at greater risk of root resorption;(d) relevant factors included treatment duration, extensive tooth movement.[25] Regarding the first error, Mr Hinchcliff contended that the evidence wasconsistent with tooth loosening, and that qualitative assessment should have beenenough to find the adverse consequence was not an ordinary consequence. Theinability to determine a precise amount of tooth resorption is not evidence the resultwas an ordinary consequence.[26] Taking the second and third errors together, Mr Hinchcliff argued that theunderlying condition was improperly taken into account, because to do so would meanthat any adverse consequence caused by an underlying condition, which all are barringtreatment error, would not be ordinary consequences. He submitted this was amisapplication of s 32.[27] Finally, counsel submitted that the factors taken account of included factorswhich were known variables at the beginning of treatment, and it was an error of lawto take them into account.9 Accident Compensation Corporation v Ng and L, above n 2.Respondent's submissions[28] Mr Hawes-Gander submitted that the Corporation correctly declined coverbecause root resorption is an ordinary consequence of orthodontic treatment. Theleading authority of Accident Compensation Corporation v Ng was correctly applied.[29] Counsel contended that the applicant alleged three errors of law and errors infactual findings, but it was not clear how the purported factual error related to theerrors of law. Mr Hawes-Gander noted that although the applicant suggested hisunderlying health condition should not be taken account of, that is what the legal testexpressly requires.[30] Regarding the facts, counsel highlighted that Mr Folkema's upper left incisortooth root had reduced between the 2016 and 2017 x-rays by 1 mm from 13 mm to12 mm (8 per cent). The upper right central incisor tooth root reduced by 4 mm, from14 mm to 10 mm (28 per cent). However these measurements were "fairly crude"given that there were a number of different variables between the different x-rays.Although the braces were removed in April 2018, resorption continued. In July 2019Dr Somerville stated resorption was likely due to multiple issues including underlyingorthodontic issues and the treatment. Dr Quick agreed with this.[31] Mr Hawes-Gander also clarified that the fitting of braces outside of NewZealand was not an eligible treatment because it was out of the country. Thus therelevant treatment to consider was the subsequent adjustment and management of thebraces in New Zealand.[32] Turning to the applicant's argument, Mr Hawes-Gander submitted that it wouldbe difficult to make out an error of law given the careful consideration of the legal testby the District Court. In Mr Hawes-Gander's submission, the applicant's argumentwas that the factual findings were not open to the Court. Counsel submitted that is ahigh threshold, citing Edwards v Bairstow,10 and one that was not met by the applicantin light of the uncontested expert evidence that root resorption is a very commonconsequence of orthodontic treatment. Mr Hawes-Gander pointed to further relevant10 Edwards v Bairstow [1995] 3 All ER 48.factors that required the factual findings the Judge made, including that the actualdegree of root resorption experienced by the applicant could not be determined andthat he was at a higher risk of root resorption than normal due to his underlying dentalcondition.[33] Mr Hawes-Gander then addressed the specific errors the applicant contendedwere made. First, that it was not possible to determine the amount of root resorption.Counsel submitted the applicant appeared to argue that the District Court incorrectlyrelied on this finding to reach an incorrect conclusion that there could not have been"an unusual amount of resorption". However, Mr Hawes-Gander submitted that theDistrict Court did not reach such a conclusion; it determined that the root resorptionsuffered by the applicant was within the normal range of outcomes.[34] Secondly, that there was no suggestion that the root resorption was outside thenormal range and the applicant was at great risk of root resorption. Counsel pointedout that the applicant's argument appeared to be that the District Court erred becauseit incorrectly relied on the fact there were "known risks" of resorption to reach aconclusion that root resorption could not be a covered treatment injury. However,again, Mr Hawes-Gander contended that this was not the conclusion reached. Rather,the District Court was focused on the statutory test of whether resorption was anordinary consequence of treatment, and no particular significance was placed on theknowledge of the risk of resorption.[35] Counsel submitted that the same was the case for the applicant's third allegederror relating to the Judge's treatment of the relevant factors. Namely, the applicantappeared to argue the District Court incorrectly relied on the fact that there wereknown risks which predisposed the applicant to root resorption to reach a conclusionthat root resorption could not be a covered treatment injury. Once again Mr Hawes-Gander submitted the District Court did not reach such a conclusion.[36] Finally, in relation to alleged errors, Mr Hawes-Gander referred to the claimthe Judge incorrectly found the applicant's root resorption was "outside the normalrange". Counsel argued there was no inconsistency between this finding and theexpert evidence before the Court.[37] Counsel then referred to the proposed questions for appeal and argued that theapplicant did not establish how these arose from the District Court judgment. Theyall seemed to stem from the applicant's suggestion that the District Court concludedthat root resorption could not be covered as a treatment injury because there wereknown risks which predisposed the Applicant to root resorption. However, inMr Hawes-Gander's submission, the District Court did not make this alleged finding.To the extent that the applicant may be suggesting that the District Court erred intaking account of the details of his pre-existing dental condition and the nature of theorthodontic treatment he received, counsel submitted that this is not seriouslyarguable, because section 32 of the Act expressly states that these factors are to betaken into account in considering what is a necessary or ordinary consequence.Legal principles and framework[38] Section 162 of the Act provides:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of theDistrict Court as being wrong in law may, with the leave of the DistrictCourt, appeal to the High Court.(2) The leave of the District Court must be sought within 21 days afterthe District Court's decision.(3) If the District Court refuses to grant leave, the High Court may grantspecial leave to appeal.(4) The special leave of the High Court must be sought within 21 daysafter the District Court refused leave.(5) The High Court Rules 2016 and sections 126 to 130 of the DistrictCourt Act 2016, with all necessary modifications, apply to an appealunder this section as if it were an appeal under section 124 of that Act.[39] Appeals to this Court are only permissible on a question of law. Leave will bedeclined where an error of fact is "dressed up" as an error of law.11 That said, a mixedquestion of law and fact is matter of law.12 Further, a decision-maker's treatment offacts may amount to an error of law where there is no evidence to support the decision,the evidence is inconsistent with and contradictory of the decision, or the true and only11 Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at 363.12 Commissioner of Inland Revenue v Walker [1963] NZLR 339 at 354.reasonable conclusion on the evidence contradicts the conclusion.13 The correctinterpretation of the law and its application to the facts will be a question of law.14[40] Moreover, the point of law must be capable of bona fide and seriousargument,15 given that leave is not granted as a matter of course.16 A second appealis intended to clarify the law and determine whether it has been properly interpretedand applied by the court below rather than correct its error.17 A principal considerationin this context is whether the question of law is worthy of consideration.18 This Courthas underscored that for leave to be granted the proposed appeal should be deservingof scarce judicial time, have an issue of principle at stake, and have a reasonableprospect of success.19 There will usually have to be some extraordinary factor whichhas not been properly taken account of to justify leave from an earlier District Courtrefusal.20[41] Finally, it is well settled that the desirability of finality of litigation is also arelevant consideration, as is the overall interests of justice.21Discussion[42] I am not satisfied that the appellant has identified a bona fide argument thatthere is an error of law in Judge Henare's decision.[43] Turning first to the alleged error of fact, overall, the applicant has notestablished that the errors of fact pleaded in the application for special leave amountto an error of law or are mixed questions of fact and law. The Judge had before herevidence that resorption in excess of 4 mm would be "very rare". At best,13 Edwards v Bairstow, above n 10.14 Commissioner of Inland Revenue v Walker, above n 12, and Edwards v Bairstow, above n 10.15 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance CorporationHC Wellington AP266/00, 6 July 2001.16 Gilmore v Accident Compensation Corporation [2016] NZHC 159417 Tohu v Accident Compensation Corporation HC Auckland CIV-2003-404-4869, 12 November2003 at [13].18 Cullen v Accident Compensation Corporation [2014] NZCA 94 citing Khan v AccidentCompensation Corp HC Auckland CIV-2007-485-1632, 14 August 2008 at [5] and DownerConstruction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2NZLR 591 at [33].19 Kenyon v Accident Compensation Corporation [2002] NZAR 385.20 At [15].21 Cullen v Accident Compensation Corporation, above n 18.Mr Folkema's x-rays showed a resorption of 4 mm, and Dr Quick noted that therewould likely be inaccuracy due to the methodology. It was therefore open to the Judgeon the facts and evidence to find that root resorption was not likely to be greater than4 mm, "some" root resorption occurred, but it was not possible to say exactly howmuch. Evidence from several doctors supported the Judge's finding that it was notpossible to accurately identify the extent of loss. Put another way, it was not aconclusion that contradicted the true and only reasonable conclusion on the evidence.22[44] Similarly, I can see no error of fact amounting to an error of law regardingMr Folkema's greater risk of root resorption. That risk was articulated in evidencegiven by the doctors. A patient's susceptibility to an adverse outcome is relevant toassessing whether the adverse outcome "occasions a measure of surprise".23 Theapplicant has not established there is a bona fide argument that there is an error of lawin this context.[45] Turning to the Judge's application of the law to the facts, the applicant arguedthat the Judge improperly found that Mr Folkema's root resorption was not outside thenormal range of consequences, and wrongly took into account the factors of treatmentduration, extensive tooth movement during treatment, Mr Folkema's bite, threepremolar extractions, and susceptibility of incisors. However, those factors are plainlyrelevant to the statutory considerations of "a person's underlying health condition atthe time of treatment" and "the clinical knowledge at the time of treatment".24[46] Those factors are also taken directly from Dr Quick's evidence that "the riskfor resorption increases with duration, extraction sites and distance that teeth move".Dr Quick also stated that Mr Folkema's "traumatic bite" may have contributed to theroot resorption and the degree of root resorption seen after treatment ceased suggestedthe bite may have contributed to resorption. This opinion was reinforced byDr Somerville's evidence that the tooth resorption was likely related to both theorthodontic treatment and Mr Folkema's underlying skeletal structure. Thus there is22 Edwards v Bairstow, above n 10.23 Accident Compensation Corporation v Ng, above n 5.24 Accident Compensation Act 2001, s 32(1)(c).no error of law in Judge Henare taking those factors into account when assessingwhether the resorption was an ordinary consequence of treatment.[47] Even if Mr Hinchcliff's argument is accepted that the numerical measure oftooth resorption does not matter and that the more relevant consideration is whetherthere is tooth loosening as a result, the Judge did not err in applying s 32, in light ofthe evidence before her from Dr Quick that "root resorption is a very common sideeffect of orthodontic treatment" and "in some reports, is present in most individualsundergoing orthodontic treatment" and evidence from Dr Gilbert that "root resorptionoccurs in almost all orthodontic treatment". Although resorption of more than30 per cent was considered by Dr Quick to be "rare", two considerations are relevant.First, there is the fact that there is no certainty that Mr Folkema's adverse outcomeswere this severe. Secondly, although it may be considered a "rare" consequence forthe general population, for someone more susceptible to the adverse outcome andmore at risk, the outcome is less likely to "occasion a measure of surprise".[48] Mr Hinchcliff argued that there was an unresolved legal question as to theimpact pre-existing conditions have on the assessment of "ordinary consequence". InChalmers I found that was the case because although Ms Chalmers' multiple sclerosisdid not cause her paraplegia, it was likely she would have become paraplegic withoutthe treatment regardless.25 There was a real question as to whether that should beconsidered. The situation is different here, where Mr Folkema's underlyingphysiology was a contributing factor to the adverse consequence occurring. Theevidence tends to suggest it may have made the adverse consequence more likely ormore severe or both. That falls within the plain wording of s 32(1)(c). I detect noerror in the Judge's approach and accordingly, I am not satisfied the criteria for specialleave to appeal set out in Kenyon v Accident Compensation Corporation are met.2625 Chalmers v Accident Compensation Corporation [2023] NZHC 925.26 Kenyon v Accident Compensation Corporation, above n 19.Decision[49] Special leave to appeal is declined._____________________________Harvey J