Ambros v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 068/2004 AI 102/02 UNDER The Accident Insurance Act 1998 BETWEEN MIKAEL AMBROS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARING ON THE PAPERS SUBSTANTIVE DECISION ISSUED 5 JUNE 2003 DATE OF THIS DECISION 19 March 2004 APPEARANCES/COUNSEL Mr M Ambros in person Ms Becroft, Counsel for respondent Ms C Garvey, Counsel for Dr H Hart DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application by the appellant/applicant for leave to appeal the 5 June 2003 decision of Judge Beattie herein when he dealt with the issue whether Mrs Susan Ambros suffered personal injury, namely death, by medical misadventure being medical error while under the treatment of Dr H Hart and other health professionals at Waitamata Health, North Shore Hospital. Judge Beattie found that the respondent’s decision to decline cover for the unfortunate death of Mrs Ambros was correct and dismissed the appeal by her estate. [2] The grounds for appeal seem to be that this Court did not appropriately consider evidence in support of medical error; that the appellant was not granted a fair hearing in this Court, and that this Court’s said decision introduces the term “Gold Standard” to justify the standard of care provided to the late Mrs Ambros. The applicant emphasises his claim that medical error occurred in terms of accepted “medical guidelines” for establishing the standard of care reasonably to be expected in the circumstances. The applicant developed the above grounds in quite some detail. [3] The respondent Corporation opposes this application for leave to appeal on the basis that the applicant has not raised any issue to show that the said decision of Judge Beattie is wrong in law. It is clear from s.165 of the Accident Insurance Act 2 1998 that a party to an appeal who is dissatisfied with the decision of the District Court “as being wrong in law” may with the leave of this Court appeal to the High Court. An applicant is not entitled to obtain leave to appeal on questions of fact. [4] It seems to me that the decision reached by Judge Beattie was based on the evidence available to him. The case before him dealt with a factual matter and required him to balance the medical evidence available. There is reference to the medical evidence in several passages of his judgment - particularly at paragraph 18 (page 10 of the decision) where he refers to the substantial amount of evidence before him. Then, from paragraphs 19 to 25 of his decision, Judge Beattie weighs up that evidence in summarising his views and coming to his judgment. [5] Insofar as the applicant raises the procedural allegation that he was prejudiced in terms of the way in which he was able to conduct his oral arguments, I can find no trace of any such prejudice. Ms Becroft submits that this procedural point is not relevant. If it were valid it would seem to me to be relevant because it is elementary that any appellant receive a fair hearing in accordance with natural justice. However, the hearing progressed over half a day and it is clear that the appellant/applicant was given ample opportunity to put forward his arguments and he extensively cross- examined the witness Dr Hart the Cardiac Surgeon responsible for the treatment provided to the late Mrs Ambros. [6] The use of the term “Gold Standard” in this Court’s judgment was, in fact, in response to the term as it was used in the context of the District Court hearing. It seems to me (with respect) that, in his judgment, Judge Beattie he has clearly applied the correct legal tests, including the test of a reasonable standard of care set out in the 1992 Act. [7] In terms of this application I have also received submissions from counsel for Dr Hart (Ms Garvey), Mr Hart gave evidence before Judge Beattie in the case for which leave to appeal from the decision is now sought. It was submitted for Mr Hart that, while every sympathy is held for Mr Ambros, the leave application does not identify any error of law, and that Judge Beattie’s decision was based on evidence available to this Court and the issue was purely factual. It is also put for Mr Hart that Judge Beattie’s decision shows he did not prefer the argument from the appellant that Mrs Ambros was not properly risk-assessed and her management compromised as a result of the risk assessment which she was given. [8] In general, the submissions for Mr Hart are similar to those for the respondent and emphasise that Mr Hart was extensively cross-examined by Mr Ambros. They accept that the standard of care required to meet the threshold for a medical error finding under the Act is a matter of law, but note that Judge Beattie characterised Mr Hart’s treatment as being of reasonable standard which must mean that is a finding of fact. It is also put that the reference to the “Gold Standard” was appropriate in the context of the applicant’s submissions and the evidence provided. [9] Ms Garvey (for Mr Hart) also submits that Judge Beattie was, appropriately, persuaded by the written evidence of independent medical advisors and this is a case where it was necessary for the Court to pay strong regard to expert medical evidence. She submits that it could not be wrong in law to so rely on expert medical evidence in preference to the submissions by the applicant/appellant that various international guidelines set out the standard of care which should have been provided. 3 [10] I am appreciative of the careful and detailed submissions in reply dated 21 February 2004 from Mr Ambros. [11] It seems to me that some of the three grounds made for this application for leave to appeal raise any meritorious issue of law. The ultimate determination of this Court was wholly based on a consideration of the medical evidence. The facts of the case, the expert evidence, and the appellant’s additional evidence were extensively canvassed at the substantive hearing. [12] The respondent Corporation declined the applicant/appellant’s claim for cover for medical misadventure on the basis of the medical evidence which indicated that the appellant was not entitled to same; so that the issue at appeal before Judge Beattie was one of fact. The appeal before Judge Beattie did not turn on a question of law and no meritorious question of law is raised in the application now before me. [13] I decline to grant leave to appeal for the above reasons. _____________________________ Judge P F Barber District Court Judge WELLINGTON Ai102-02-Amrbos.doc(afw)