Wyman v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 29 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an Application for Leave to Appeal to the High Court pursuant to Section 163 of the Act BETWEEN NGAIRE CLAUDIA WYMAN (Al 257/04) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant has made application for leave to appeal to the High Court from the decision of His Honour Judge D A Ongley delivered on 6 November 2006 under Decision No. 272/06. [2] The issue in that appeal was whether the applicant was entitled to cover for personal injury caused by medical misadventure being medical mishap, that appeal being from the primary decision of the respondent issued on 7 November 2003 declining the applicant's claim for cover. [3] The applicant's claim for cover arose as a consequence of a surgical procedure carried out on 6 May 1999. That surgical procedure was a sural nerve biopsy of the left vastus lateralis muscle. [4] The consequence of that biopsy was that the applicant was left with intense pain in her left leg and as time progressed the pain continued and became worse. Her 257.04 (pg) 2 symptoms had not abated by the time she lodged her claim for medical misadventure in July 2003. 5] There was no suggestion of medical error in the conduct of the biopsy and the sole issue was whether the applicant's post-operative condition entitled her to cover for medical mishap. It had been the respondent's decision that whilst it accepted that the severity requirement of the Act had been satisfied, her condition did not meet the rarity requirement because pain following sural nerve biopsies was commonly found in 30% of patients. ] It was the submission of Counsel for the Appellant in the appeal that the evidence of Dr Wigley and Dr Wallis, who referred to overseas studies, identified that the continuance of severe pain some 5 years after the operation was a rare event occurring in less than 1% of cases. It was on that basis that Counsel for the Appellant had contended the applicant came within the statutory definition of 'rarity'. [7] In his decision His Honour considered that the argument of Counsel for the Appellant was misconceived and that it had overlooked an important aspect of the structure of Sections 32 and 34 of the Act. [8] At paragraph 25, His Honour stated: "It follows that cover is not given for the adverse consequence, but for the resulting personal injury. Under s.34, medical mishap means an adverse consequence of treatment. Cover is given for personal injury caused by medical mishap. Therefore the covered personal injury has to be caused by the adverse consequence of treatment. The adverse consequence is not the end result." Further, at paragraph 27 and 28 His Honour amplified on the matter as follows: ". . . This appeal must be resolved by seeking to define the adverse consequence of treatment as a treatment outcome that caused personal injury. Viewed in that way, there is no room for the interpretation urged by the appellant. The severe pain which could be shown to be a rare consequence cannot be regarded as a cause of personal injury. Nor can the severe pain itself be regarded as a personal injury because the injury is not the pain itself but the underlying physiological condition. Applying the statutory language to the evidence in this case, the treatment caused an adverse consequence by way of nerve tissue damage from taking the biopsy sample. The adverse consequence was itself an injury, but may be regarded in terms of $32(1)(b) as the cause of the personal injury suffered by 257.04 (pg) 3 the appellant. The severe pain was a consequence of the personal injury but could not be the cause of the personal injury. Even if it (sic) regarded as a rare adverse consequence, there is no personal injury resulting from it. " [9] The Court has received written submissions from both Mr P D Hunt, Advocate for the Applicant in support of the application, and from Mr J R Sumner, Counsel for the Respondent in opposition thereto. [10] The error of law contended for by Mr Hunt is that the Learned Judge became confused between the elements of Sections 32 and 34 and that His Honour ought only to have considered the applicant's claim under the provisions of Section 34 of the Act, and that if that course had been followed, there was no requirement that a personal injury need have occurred before cover could be had if there was evidence of rarity and severity of consequence. [11] Mr Hunt submitted that the medical evidence was clear that for a person to be still suffering severe pain some five years after the biopsy was rare within the meaning of the Act. [12] Mr Sumner for the Respondent referred to the legal principles applicable when considering an Application for Leave to Appeal to the High Court, in particular the principles referred to in the High Court Decision of Impact Manufacturing Lid v ACC (Wellington High Court AP 266/00). Counsel emphasised the point made in that decision that leave should not be given if the issue is not capable of bona fide and serious argument. [13] Counsel submitted that the Learned Judge was quite correct to determine the matter by referring to the requirements of both Section 32 and 34 of the Act, and he submitted that Section 34 could not be considered a stand-alone provision. He submitted that the point argued by the applicant was not capable of bona fide and serious argument. [14] If the basis of the applicant's submission were to be a valid one, then it would be the case that a question of law did arise and which, it could be contended, had been incorrectly determined by the Learned Judge. However, I find that the basis for the argument put forward on the applicant's behalf can have no validity at all and therefore the point that is made is not one which is capable of serious and bona fide argument. 257.04 (pg) [15] The fatal flaw in the applicant's submission is the contention that Section 34 is a stand-alone provision and that its terms are satisfied if there is a rare and severe consequence of treatment, without it being necessary to show that it is a personal injury which is the rare and severe consequence of treatment. [16] For the applicant's argument to have any validity, it would need to be accepted as a fundamental that no personal injury by medical mishap needed to be established, but simply a downstream consequence, which was not of itself a personal injury, was rare and severe. [17] Such an argument has no regard for the basic premise that cover can only be had for personal injury by medical misadventure and that medical mishap is one of the two aspects of misadventure by which such a personal injury can arise. [18] In the case of this applicant there was no personal injury. The biopsy did not cause a personal injury and it is accepted that such a surgical procedure does result in increased pain at the site in some 30% of patients who undergo that treatment. [19] The underlying principle in claims of this nature is that a personal injury must have been caused as an adverse consequence of treatment. Pain itself is not a personal injury but it can in certain circumstances be a symptom of injury. [20] For the foregoing reasons, I find that the purported error of law said to have been made by the Learned Judge is not one which is capable of serious and bona fide argument having regard to the incorrect premise upon which it is based. Therefore, it is not an error of law for which leave to appeal should be granted. Accordingly, leave to appeal to the High Court is declined. DATED at AUCKLAND this 12 day of relvwary 2007 M J Beattie District Court Judge 257.04 (pg)